CASEBOOK ON TORTS & DAMAGES

PEDRO JOSE F. BERNARDO

Second Edition (2010)

Published by

CENTRAL LAWBOOK PUBLISHING CO., INC.

927 Quezon Avenue, Quezon City
Philippines

i
Philippine Copyright © 2009, 2010
Atty. Pedro Jose F. Bernardo

Subject to Section 176 of the Intellectual Property Code of the Philippines and A.M. No.
04-7-06-SC issued by the Supreme Court on 17 August 2007, no portion of this casebook
may be copied or reproduced in books, pamphlets, outlines or notes, whether printed,
mimeographed, typewritten, copied in different electronic devices or in any other form,
for distribution or sale, without the written permission of the author.

This casebook is for the limited and exclusive use of students taking the class of Torts &
Damages at the Ateneo Law School and the Joint J.D. – MBA Program of the Far Eastern
University Institute of Law and the de la Salle University.

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 TABLE OF CONTENTS

I. INTRODUCTION

1. SOURCES OF CIVIL LIABILITY…………………………………………………………………………...... 1

Articles 29 to 31; Articles 1159 to 1162 of the Civil Code

Article 100 of the Revised Penal Code
Sections 1 and 2, Rule 111 of the Revised Rules of Criminal Procedure

a. Arising from Crime…………………………………………………………………………........... 2

People of the Philippines vs. Bayotas……………………………………………………………. 2

Elcano vs. Hill, e……………………………………………………………………….................... 4
DMPI Employees Credit Cooperative, Inc. vs. Velez, et al……………………………………. 8
Padilla, et al. vs. Court of Appeals………………………………………………………………..9
Philippine Rabbit Bus Lines, Inc. vs. People of the Philippines………………………………. 14
Manliclic, et al. vs. Calaunan……………………………………………………………………... 17

b. Arising from Contract………………………………………………………………………….......22

Air France vs. Carascoso, et al……………………………………………………………………. 22

Light Rail Transit Authority, et al. vs. Navidad………………………………………………... 24
Far East Bank and Trust Company vs. Court of Appeals……………………………………... 26

c. Arising from Tort………………………………………………………………………….............. 30

Andamo, et al vs. Intermediate Appellate Court, et al………………………………………… 30

Castro vs. People of the Philippines……………………………………………………………... 32

2. CULPA AQUILANA/CULPA CONTRACTUAL/CULPA CRIMINAL………………………………………. 34

Article 2177 of the Civil Code

Fabre, et al. vs. Court of Appeals, et al. ……………………………………………………………… 34

Calalas vs. Court of Appeals, et al. ……………………………………………………………………
38
Padua, et al. vs. Robles………………………………………………………………………….............
40
Atlantic Gulf and Pacific Company of Manila, Inc. vs. Court of Appeals, et al. ………………… 42

II. QUASI-DELICT

1. ELEMENTS OF A QUASI-DELICT…………………………………………………………………………..43

Article 2176 of the Civil Code

Andamo vs. Intermediate Appellate Court………………………………………………………….. 43

FGU Insurance Corporation vs. Court of Appeals, et al. …………………………………………... 43
Cinco vs. Canonoy, et al.………………………………………………………………………………. 45

2. NEGLIGENCE…………………………………………………………………………............................... 46

a. Concept of Negligence…………………………………………………………………………......46

Article 1173 of the Civil Code

iii
 Picart vs. Smith, Jr. ……...…………………………………………………………………............ 46
Cusi, et al. vs. Philippine National Railways…………………………………………………… 48
Gan vs. Court of Appeals…………………………………………………………………………. 51
Valenzuela vs. Court of Appeals, et al..…………………………………………………………. 52
Adzuara vs. Court of Appeals……………………………………………………………………. 60
Prudential Bank vs. Court of Appeals, et al. ………..…………………………………………. 61

b. Negligence as the Proximate Cause………………………………………………………………64

Vda. de Bataclan, et al. vs. Medina………………………………………………………………. 64

Umali vs. Bacani, et al. …………………………………………………………………………..... 66
Bacarro, et al. vs. Castano, et al. …………………………………………………………………. 67
Pheonix Construction, Inc., et al. vs. Intermediate Appellate Court…………………………. 70
Smith Bell and Company, et al. vs. Court of Appeals, et al. ………………………………….. 74
Fernando vs. Court of Appeals, et al. …………………………………………………………… 79
Ridjo Tape & Chemical Corporation, et al. vs. Court of Appeals, et al. ……………………... 82
Benguet Electric Cooperative, Inc. vs. Court of Appeals, et al. ………………………………. 85
Austria vs. Court of Appeals, et al. ……………………………………………………………… 87
Consolidated Bank and Trust Corporation vs. Court of Appeals, et al. ……………………...89
Philippine National Railways vs. Court of Appeals, et al. ……………………………………. 94
Lucas, et al. vs. Tuaño……………………………………………………………………………... 96

c. Proof of Negligence…………………………………………………………………………...........104

Philippine Long Distance Telephone Company vs. Court of Appeals, et al. ……………….. 104

d. Presumption of Negligence………………………………………………………………………. 106

1. Res ipsa loquitur…………………………………………………………………………........... 106

Africa, et al. vs. Caltex, Inc., et al. …………………………………………………………... 106

F.F. Cruz and Co., Inc. vs. Court of Appeals, et al. ……..………………………………... 111
Batiquin vs. Court of Appeals, et al. ………………………………………………………... 112
Ramos, et al. vs. Court of Appeals, et al. …...……………………………………………… 117
Ramos, et al. vs. Court of Appeals, et al. (Motion for Reconsideration) ………………... 131
Reyes, et al. vs. Sisters of Mercy, et al. ………...…………………………………………… 141
DM Consunji, Inc. vs. Court of Appeals, et al. …………………………………………….. 147
Perla Compania de Seguros, Inc., et al. vs. Sarangaya, et al. …………………………….. 150
Macalinao vs. Ong, et al. …………………………………………………………………….. 153
Capili vs. Spouses Cadana, et al. ……………………………………………………………. 157
Cantre vs. Spouses Go, et al. ………………………………………………………………… 160

2. Respondeat superior…………………………………………………………………………...... 162

Castilex Industrial Corporation vs. Vasquez, Jr., et al. …………………………………… 162

Ramos, et al. vs. Court of Appeals, et al. ………...………………………………………… 165
Ramos, et al. vs. Court of Appeals, et al. (Motion for Reconsideration) ………………... 165
Nograles, et al. vs. Capitol Medical Center, et al. …………………………………………. 165
Professional Services, Inc. vs. Court of Appeals, et al. ……...……………………………. 174

3. Violation of Traffic Rules…………………………………………………………………….. 179

Article 2184 of the Civil Code

United States vs. Crane………………………………………………………………………. 179

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 Caedo, et al. vs. Yu Khe Thai, et al. ……...…………………………………………………. 182
BLT Bus co. vs. Intermediate Appellate Court, et al. ……………………………………... 184
FGU Insurance Corporation vs. Court of Appeals, et al…..……………………………… 187
Guillang, et al. vs. Bedania, et al…………………………………………………………….. 187

4. Dangerous weapons and substances……………………………………………………… 191

Article 2188 of the Civil Code

3. DEFENSES…………………………………………………………………………................................ 191

a. Contributory negligence…….…………………………………………………………………... 191

Article 2179 of the Civil Code

Rakes vs. Atlantic Gulf and Pacific Company………………………………………………….. 191

Taylor vs. Manila Electric Railroad and Light Company……………………………………… 195
Gan vs. Court of Appeals, et al..…………………………………………………………………..202
Estacion vs. Bernardo, et al. ……………………………..……………………………………...... 202
Cadiente vs. Macas…………………………………………………………………………............ 207
National Power Corporation vs. Heirs of Casionan………...…………………………………. 209

b. Assumption of Risk…………………………………………………………………………........... 213

Afiada vs. Hisole…………………………………………………………………………............... 213

c. Last clear chance…………………………………………………………………………................ 214

Picart vs. Smith, Jr……………………………………………………………………………......... 214

Spouses Ong vs. Metropolitan Water District…………………………………………………...214
Anuran, et al. vs. Buno, et al. …………………………………………………………………….. 217
Pheonix Construction, Inc. vs. Intermediate Appellate Court……………………...………… 219
Glan People’s Lumber and Hardware, et al. vs. Intermediate Appellate Court…………….. 219
Pantranco North Express, Inc. vs. Baesa, et al…………………………………………………...223
McKee, et al. vs. Court of Appeals, et al………………………………………………………… 225
LBC Air Cargo, Inc., et al. vs. Court of Appeals………………………………………………... 230
Raynera, et al. vs. Hicetas, et al…………………………………………………………………... 233
Canles, et al. vs. Court of Appeals, et al………………………………………………………….235
Ladeco, et al. vs. Angala…………………………………………………………………………... 238
Austria vs. Court of Appeals, et al……………………………………………………………….. 240
Consolidated Bank and Trust Corporation vs. Court of Appeals, et al……………………… 240

d. Prescription…………………………………………………………………………........................ 240

Article 1146 of the Civil Code

Article 169 of the Consumer Act of the Philippines

Ferrer, et al. vs. Ericta, et al……………………………………………………………………….. 240

Kramer, et al. vs. Court of Appeals, et al. ………………………………………………………. 242

e. Force majeure.……………………………………………………………………………………… 244

Article 1170 of the Civil Code

Gotesco vs. Chatto, et al.………………………………………………………………………….. 244

National Power Corporation, et al. vs. Court of Appeals, et al……………………………….. 246

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 Cipriano, et al. vs. Court of Appeals, et al………………………………………………………. 248

f. Exercise of diligence…………………………………………………………………………..........250

Article 2180 of the Civil Code

Cases to be discussed below

g. Mistake and waiver…………………………………………………………………………........... 251

Gatchalian vs. Court of Appeals, et al. ………………………………………………………….. 251

h. Damnum absque injuria…………………………………………………………………………...... 254

National Power Corporation vs. Court of Appeals, et al……………………………………… 254

III. VICARIOUS LIABILITY…………………………………………………………………………....... 254

Article 2180 to 2194 of the Civil Code

1. PARENTS AND GUARDIANS…………………………………………………………………………........ 255

Article 2181 and 2182 of the Civil Code

Republic Act No. 6809

Exconde vs. Capuno, et al. …………………………..……………………………………………...... 255

Salen, et al. vs. Jose…………………………………………………………………………................... 256
Canlas vs. Chan Lin Po, et al. …………………………………………………………………………. 259
Elcano, et al. Vs. Hill, et al……………………………………………………………………………... 261
Tamargo, et al. vs. Court of Appeals, et al…………………………………………………………… 261
Spouses Libi vs. Intermediate Appellate Court, et al……………………………………………….. 264

2. TEACHERS AND HEADS OF ESTABLISHMENTS…………………………………………………………... 271

Mercado vs. Court of Appeals, et al. …………………………………………………………………. 271

Cuadra, et al. vs. Monfort……………………………………………………………………………… 273
Spouses Palisoc vs. Brillantes, et al. ………………………………………………………………….. 275
Amadora, et al. vs. Court of Appeals, et al…………………………………………………………... 279
Ylarde, et al. vs. Aquino, et al…………………………………………………………………………. 286
Salvosa, et al. vs. Intermediate Appellate Court, et al...……………………………………………. 288
Philippine School of Business Administration, et al. vs. Court of Appeals………………………. 290
Saludaga vs. Far Eastern University, et al...…………………………………………………………. 292

3. OWNERS AND MANAGERS OF ESTABLISHMENTS ……………………………………………………..... 297

St. Francis High School, et al. vs. Court of Appeals, et al…………………………………………... 297
Castillex Industrial Corporation vs. Vasquez, et al…………………………………………………. 302

4. EMPLOYERS…………………………………………………………………………................................. 302

Martin vs. Court of Appeals, et al. …………………………………………………………………… 302

Filamer Christian Institute vs. Court of Appeals, et al……………………………………………... 303
Filamer Christian Institute vs. Court of Appeals, et al. (Motion for Reconsideration)………….. 305
Metro Manila Transit Corporation vs. Court of Appeals, et al…………………………………….. 308
Valenzuela vs. Court of Appeals, et al. ……………………………………………………………….314

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 Jose, et al. vs. Court of Appeals, et al. ………………………………………………………………... 314
Yambao vs. Zuñiga, et al. …...……………………………………………………………………........ 318
Filipinas Broadcasting Network, Inc. vs. AGO Medical and Educational Center……………….. 320
Estacion vs. Bernardo, et al. ……...………………………………………………………………….... 324
Mercury Drug Corporation, et al. vs. Spouses Huang……………………………………………… 324

5. STATE ………………………………………………………………………….......................................... 328

Merritt vs. Government of the Philippine Islands…………………………………………………... 328

Spouses Fontanilla, et al. vs. Maliaman, et al. ………………………………………………………. 333
Spouses Fontanilla, et al. vs. Maliaman, et al. (Motion for Reconsideration)……………………. 336

IV. PRIMARY LIABILITY…………………………………………………………………………............ 339

1. POSSESSORS/USERS OF ANIMALS……………………………………………………………………….. 339

Article 2183 of the Civil Code

Vestil, et al. vs. Intermediate Appellate Court, et al. ……………………………………………….. 339

2. OWNERS OF MOTOR VEHICLES………………………………………………………………………….. 341

Article 2184 of the Civil Code

Caedo, et al. vs. Yu Khe Thai, et al. …………………………………………………………………... 341

Malayan Insurance Co., Inc. vs. Court of Appeals, et al……………………………………………. 341

3. MANUFACTURERS AND PROCESSORS…...………………………………………………………………. 343

Article 2189 of the Civil Code

See also, in general, Consumer Act of the Philippines

4. MUNICIPAL CORPORATIONS…………………………………………………………………………...... 343

Article 2189 of the Civil Code

Section 24 of the Local Government Code

City of Manila vs. Teotico, et al. ……………………………………………………………………… 343

Torio, et al. vs. Remedios, et al. ………………………………………………………………………. 346
Jimenez vs. City of Manila, et al. ……………………………………………………………………... 351
Municipality of San Juan, et al. vs. Court of Appeals………………………………………………. 355

5. BUILDING PROPRIETORS…………………………………………………………………………............. 358

Articles 2190, 2191, 2192 and 2193 of the Civil Code

6. ENGINEERS/ARCHITECTS/CONTRACTORS……………………………………………………………... 358

Article 2192 and 1723 of the Civil Code

Nakpil & Sons, et al. vs. Court of Appeals, et al. …………………………………………………… 358
Nakpil & Sons, et al. vs. Court of Appeals, et al. (Motion for Reconsideration)………………… 361

V. SPECIAL TORTS…………………………………………………………………………..................... 363

1. ABUSE OF RIGHTS…………...……………………………………………………………........................ 363

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 Article 19 of the Civil Code

Velayo vs. Shell Company of the Philippines Islands, Ltd………..………………………………. 363

Llorente vs. Sandiganbayan…………………………………………………………………………… 370
Heirs of Nala vs. Cabansag……………………………………………………………………………. 374

2. ACTS OR OMISSIONS CONTRARY TO MORALS……………………………………………………………. 376

Articles 20 and 21 of the Civil Code

Hermosisima vs. Court of Appeals…………………………………………………………………… 376

Wassmer vs. Velez………………………………………………………………………….................... 378
Baksh vs. Court of Appeals, et al. ……………………………………………………………………..379

3. UNJUST ENRICHMENT…………………………………………………………………………................ 386

Articles 22 and 23 of the Civil Code

Security Bank & Trust CO., et al. vs. Court of Appeals…………………………………………….. 386
H.L. Carlos Construction, Inc. vs. Marina Properties Corporation, et al…………………………. 387

4. JUDICIAL VIGILANCE………………………………………………………………………….................. 390

Article 24 of the Civil Code

5. THOUGHTLESS EXTRAVAGANCE………………………………………………………………………… 390

Article 25 of the Civil Code

6. RIGHT TO PRIVACY…………………………………………………………………………..................... 390

Article 26 of the Civil Code

St. Louis Realty Corporation vs. Court of Appeals…………………………………………………. 391

Castro vs. People of the Philippines………………………………………………………………….. 392

7. DERELICTION OF DUTY…………………………………………………………………………............... 392

Article 27 of the Civil Code

Philippine Matco Co., Ltd. vs. City of Cebu, et al……………………………………………………392

Torio, et al. vs. Fontanilla, et al………………………………………………………………………... 394

8. UNFAIR COMPETITION………………………...………………………………………………................ 394

Article 28 of the Civil Code

9. VIOLATION OF CONSTITUTIONAL RIGHTS………………………………………………………………. 394

Article 32 of the Civil Code

Lim vs. Ponce de Leon…………………………………………………………………………............. 395

MHP Garments, Inc., et al. vs. Court of Appeals, et al……………………………………………... 399
Vinzons-Chato vs. Fortune Tobacco Corporation…………………………………………………... 402

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 Vinzons-Chato vs. Fortune Tobacco Corporation (Motion for Reconsideration)………………... 407

10. INTERFERENCE IN CONTRACTUAL RELATIONS…………………………………………………………. 413

Article 1314 of the Civil Code

Daywalt vs. La Corporacion delos Padres Agustino Recoletos, et al……………………………... 413

So Ping Bun vs. Court of Appeals, et al……………………………………..………………………. 417
Lagon vs. Court of Appeals, et al……………………………………………………………………... 419

VI. DAMAGES…………………………………………………………………………............................... 421

1. CONCEPT/KINDS…………………………………………………………………………........................ 421

Article 2195 to 2198 of the Civil Code

Filinvest Credit vs. Intermediate Appellate Court………………………………………………...... 421

Spouses Custodio, et al. vs. Court of Appeals, et al.………………………………………………... 423

2. ACTUAL/COMPENSATORY DAMAGES…………...……………………………………………………... 426

Article 2199 to 2215 of the Civil Code

a. In General…………………………………………………………………………........................... 426

PNOC Shipping and Transport Corporation vs. Court of Appeals……………..…………... 427

Talisay-Silay Milling, Inc. vs. Associacion de Agricultures de Talisay-Silay, Inc……………434
G.A. Machineries, Inc. vs. Yaptinchay…………………………………………………………... 437
China Airlines Limited vs. Court of Appeals, et al…………………………………………….. 440
Consolidated Dairy Products, et al. vs. Court of Appeals…………………………………….. 444

b. Death and permanent incapacity………………………………………………………………… 447

Manzanares vs. Moreta………...………………………………………………………………..... 447

Borromeo vs. Manila Electric Railroad & Light Co…………………………………………….. 451
Villa Rey Transit vs. Court of Appeals…………………………………………………………...451
Davila vs. Philippine Airlines……………………………………………………………………..454
People of the Philippines vs. Quilaton…………………………………………………………... 456
Salvador vs. People of the Philippines…………………………………………………………... 458
Heirs of George Y. Poe vs. Malayan Insurance Company, Inc………………………………... 460

c. Attorney’s Fees………………………………………………………………………….................. 464

Agustin vs. Court of Appeals…………………………………………………………………….. 464

d. Interest………...………………………………………………………………................................. 466

Eastern Shipping vs. Court of Appeals………………………………………………………….. 466

Crismina Garments, Inc. vs. Court of Appeals…………………………………………………. 471

3. MORAL DAMAGES…………………………………………………………………………...................... 474

Article 2217 to 2220 of the Civil Code

Lopez vs. Pan American World Airways……………………...…………………………………….. 474

Zalamea vs. Court of Appeals………………………………………………………………………… 479

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 People of the Philippines vs. Prades………………………………………………………………….. 483
Expert Travel & Tours, Inc. vs. Court of Appeals……………………………………………………484

4. NOMINAL AND TEMPERATE DAMAGES…………………………………………………………………. 485

Articles 2221 to 2225 of the Civil Code

Northwest Airlines, Inc. vs. Cuenca………………………………………………………………….. 486

Japan Airlines vs. Court of Appeals………………………………………………………………….. 487
Armovit vs. Court of Appeals………………………………………………………………………… 490
Cathay Pacific Airways, Ltd. vs. Spouses Vasquez…………………………………………………. 492

5. LIQUIDATED DAMAGES………………………………………………………………………….............. 497

Articles 2226 to 2228 of the Civil Code

Country Bankers vs. Court of Appeals………….…………………………………………………… 497

Spouses Suatengco vs. Reyes………………….………………………………………………………. 500

6. EXEMPLARY DAMAGES…………………………………………………………………………............... 502

Octot vs. Ybañez…………………………………………………………………………....................... 503

De Leon vs. Court of Appeals………………………………………………………………………….504
People of the Philippines vs. Cristobal……………………………………………………………….. 507

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I. INTRODUCTION
1. SOURCES OF CIVIL LIABILITY
CIVIL CODE OF THE PHILIPPINES
ARTICLE 29. When the accused in a criminal
prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may
be instituted. Such action requires only a
preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint
should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In
the absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not
the acquittal is due to that ground.
ARTICLE 30. When a separate civil action is
brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are
instituted during the pendency of the civil case, a
preponderance of evidence shall likewise be
sufficient to prove the act complained of.
ARTICLE 31. When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter.
xxx xxx xxx
ARTICLE 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
REVISED PENAL CODE
ARTICLE 100. Civil Liability of Person Guilty of
Felony. — Every person criminally liable for a felony
is also civilly liable.
xxx xxx xxx
ARTICLE 102. Subsidiary Civil Liability of
Innkeepers, Tavernkeepers and Proprietors of
Establishments. — In default of the persons
criminally liable, innkeepers, tavernkeepers, and any
other persons or corporations shall be civilly liable for
crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some
general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the
restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the
payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper
himself, or the person representing him, of the
deposit of such goods within the inn; and shall
furthermore have followed the directions which such
innkeeper or his representative may have given them
with respect to the care of and vigilance over such
goods. No liability shall attach in case of robbery with
violence against or intimidation of persons unless
committed by the innkeeper's employees.
ARTICLE 103. Subsidiary Civil Liability of Other
Persons. — The subsidiary liability established 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.
REVISED RULES OF CRIMINAL PROCEDURE
SECTION 1. Institution of criminal and civil
actions. — (a) When a criminal action is instituted, the
civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted
with the criminal action unless the offended party
waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the
criminal action.
The reservation of the right to institute separately the
civil action shall be made before the prosecution
starts presenting its evidence and under
circumstances affording the offended party a
reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil
liability against the accused by way of moral,
nominal, temperate, or exemplary damages without
specifying the amount thereof in the complaint or
information, the filing fees therefor shall constitute a
first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is
specified in the complaint or information, the
corresponding filing fees shall be paid by the
offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing
fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case, but
any cause of action which could have been the subject
thereof may be litigated in a separate civil action. (1a)
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include the
2
corresponding civil action. No reservation to file such
civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing
fees based on the amount of the check involved,
which shall be considered as the actual damages
claimed. Where the complaint or information also
seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party
shall pay additional filing fees based on the amounts
alleged therein. If the amounts are not so alleged but
any of these damages are subsequently awarded by
the court, the filing fees based on the amount
awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and
trial thereof has not yet commenced, it may be
consolidated with the criminal action upon
application with the court trying the latter case. If the
application is granted, the trial of both actions shall
proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal
actions. (Cir. 57-97)
SECTION 2. When separate civil action is
suspended. — After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final judgment
has been entered in the criminal action.
If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal
action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon
motion of the offended party, be consolidated with
the criminal action in the court trying the criminal
action. In case of consolidation, the evidence already
adduced in the civil action shall be deemed
automatically reproduced in the criminal action
without prejudice to the right of the prosecution to
cross-examine the witnesses presented by the
offended party in the criminal case and of the parties
to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided
jointly.
During the pendency of the criminal action, the
running of the period of prescription of the civil
action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled. (n)
The extinction of the penal action does not carry with
it extinction of the civil action. However, the civil
action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the criminal
action that the act or omission from which the civil
liability may arise did not exist. (2a)
3
SECTION 3. When civil action may proceed
independently. — In the cases provided in Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines,
the independent civil action may be brought by the
offended party. It shall proceed independently of the
criminal action and shall require only a
preponderance of evidence. In no case, however, may
the offended party recover damages twice for the
same act or omission charged in the criminal action.
(3a)
a. Arising from Crime
PEOPLE OF THE PHILIPPINES vs.
ROGELIO BAYOTAS
G.R. No. 102007, 2 September 1994, 236 SCRA 239
ROMERO, J p:
In Criminal Case No. C-3217 filed before Branch 16,
RTC Roxas City, Rogelio Bayotas y Cordova was
charged with Rape and eventually convicted thereof on
June 19, 1991 in a decision penned by Judge Manuel E.
Autajay. Pending appeal of his conviction, Bayotas died
on February 4, 1992 at the National Bilibid Hospital due
to cardio respiratory arrest secondary to hepatic
encephalopathy secondary to hipato carcinoma gastric
malingering. Consequently, the Supreme Court in its
Resolution of May 20, 1992 dismissed the criminal
aspect of the appeal. However, it required the Solicitor
General to file its comment with regard to Bayotas' civil
liability arising from his commission of the offense
charged.
In his comment, the Solicitor General expressed his
view that the death of accused-appellant did not
extinguish his civil liability as a result of his
commission of the offense charged. The Solicitor
General, relying on the case of People v. Sendaydiego
insists that the appeal should still be resolved for the
purpose of reviewing his conviction by the lower court
on which the civil liability is based.
Counsel for the accused-appellant, on the other hand,
opposed the view of the Solicitor General arguing that
the death of the accused while judgment of conviction
is pending appeal extinguishes both his criminal and
civil penalties. In support of his position, said counsel
invoked the ruling of the Court of Appeals in People v.
Castillo and Ocfemia which held that the civil obligation
in a criminal case takes root in the criminal liability and,
therefore, civil liability is extinguished if accused
should die before final judgment is rendered.
We are thus confronted with a single issue: Does death
of the accused pending appeal of his conviction
extinguish his civil liability?
xxx xxx xxx
It is, thus, evident that as jurisprudence evolved from
Castillo to Torrijos, the rule established was that the
survival of the civil liability depends on whether the
same can be predicated on sources of obligations other
than delict. Stated differently, the claim for civil liability
is also extinguished together with the criminal action if
it were solely based thereon, i.e., civil liability ex delicto.
However, the Supreme Court in People v. Sendaydiego, et
al. departed from this long-established principle of law.
In this case, accused Sendaydiego was charged with
and convicted by the lower court of malversation thru
falsification of public documents. Sendaydiego's death
supervened during the pendency of the appeal of his
conviction.
This court in an unprecedented move resolved to
dismiss Sendaydiego's appeal but only to the extent of
his criminal liability. His civil liability was allowed to
survive although it was clear that such claim thereon
was exclusively dependent on the criminal action
already extinguished. The legal import of such decision
was for the court to continue exercising appellate
jurisdiction over the entire appeal, passing upon the
correctness of Sendaydiego's conviction despite
dismissal of the criminal action, for the purpose of
determining if he is civilly liable.
xxx xxx xxx
Succeeding cases raising the identical issue have
maintained adherence to our ruling in Sendaydiego; in
other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability
solely anchored on the criminal (civil liability ex delicto)
is extinguished upon dismissal of the entire appeal due
to the demise of the accused.
But was it judicious to have abandoned this old ruling?
A re-examination of our decision in Sendaydiego impels
us to revert to the old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego:
The resolution of the civil action impliedly instituted in
the criminal action can proceed irrespective of the
latter's extinction due to death of the accused pending
appeal of his conviction, pursuant to Article 30 of the
Civil Code and Section 21, Rule 3 of the Revised Rules
of Court.
Article 30 of the Civil Code provides:
“When a separate civil action is
brought to demand civil liability
arising from a criminal offense, and
no criminal proceedings are
instituted during the pendency of the
civil case, a preponderance of
evidence shall likewise be sufficient
to prove the act complained of.”
Clearly, the text of Article 30 could not possibly lend
support to the ruling in Sendaydiego. Nowhere in its text
is there a grant of authority to continue exercising
appellate jurisdiction over the accused's civil liability ex
delicto when his death supervenes during appeal. What
Article 30 recognizes is an alternative and separate civil
action which may be brought to demand civil liability
arising from a criminal offense independently of any
criminal action. In the event that no criminal
proceedings are instituted during the pendency of said
civil case, the quantum of evidence needed to prove the
criminal act will have to be that which is compatible
with civil liability and that is, preponderance of
evidence and not proof of guilt beyond reasonable
doubt. Citing or invoking Article 30 to justify the
survival of the civil action despite extinction of the
criminal would in effect merely beg the question of
whether civil liability ex delicto survives upon extinction
of the criminal action due to death of the accused
during appeal of his conviction. This is because
whether asserted in the criminal action or in a separate
civil action, civil liability ex delicto is extinguished by
the death of the accused while his conviction is on
appeal. Article 89 of the Revised Penal Code is clear on
this matter:
"Art. 89. How criminal liability is
totally extinguished. — Criminal
liability is totally extinguished:
1. By the death of the convict,
as to the personal penalties; and as to
pecuniary penalties, liability therefor
is extinguished only when the death
of the offender occurs before final
judgment;
xxx xxx xxx"
However, the ruling in Sendaydiego deviated from the
expressed intent of Article 89. It allowed claims for civil
liability ex delicto to survive by ipso facto treating the
civil action impliedly instituted with the criminal, as
one filed under Article 30, as though no criminal
proceedings had been filed but merely a separate civil
action. This had the effect of converting such claims
from one which is dependent on the outcome of the
criminal action to an entirely new and separate one, the
prosecution of which does not even necessitate the
filing of criminal proceedings. One would be hard put
to pinpoint the statutory authority for such a
transformation. It is to be borne in mind that in
recovering civil liability ex delicto, the same has perforce
to be determined in the criminal action, rooted as it is in
the court's pronouncement of the guilt or innocence of
the accused. This is but to render fealty to the
intendment of Article 100 of the Revised Penal Code
which provides that "every person criminally liable for
a felony is also civilly liable." In such cases, extinction of
the criminal action due to death of the accused pending
appeal inevitably signifies the concomitant extinction of
the civil liability. Mors Omnia Solvi. Death dissolves all
things.
4
In sum, in pursuing recovery of civil liability arising
from crime, the final determination of the criminal
liability is a condition precedent to the prosecution of
the civil action, such that when the criminal action is
extinguished by the demise of accused-appellant
pending appeal thereof, said civil action cannot survive.
The claim for civil liability springs out of and is
dependent upon facts which, if true, would constitute a
crime. Such civil liability is an inevitable consequence
of the criminal liability and is to be declared and
enforced in the criminal proceeding. This is to be
distinguished from that which is contemplated under
Article 30 of the Civil Code which refers to the
institution of a separate civil action that does not draw
its life from a criminal proceeding. The Sendaydiego
resolution of July 8, 1977, however, failed to take note
of this fundamental distinction when it allowed the
survival of the civil action for the recovery of civil
liability ex delicto by treating the same as a separate civil
action referred to under Article 30. Surely, it will take
more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an
independent one such as that contemplated under
Article 30.
xxx xxx xxx
From this lengthy disquisition, we summarize our
ruling herein:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by
Justice Regalado, in this regard, "the death of the
accused prior to final judgment terminates his criminal
liability and only the civil liability directly arising from
and based solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may
also be predicated on a source of obligation other than
delict. 19 Article 1157 of the Civil Code enumerates
these other sources of obligation from which the civil
liability may arise as a result of the same act or
omission:
a) Law
b) Contracts
c) Quasi-contracts
d) ...
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil
action may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based as explained above.
5
4. Finally, the private offended party need not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of
the criminal action and prior to its extinction, the
private-offended party instituted together therewith the
civil action. In such case, the statute of limitations on
the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should
thereby avoid any apprehension on a possible privation
of right by prescription.
Applying this set of rules to the case at bench, we hold
that the death of appellant Bayotas extinguished his
criminal liability and the civil liability based solely on
the act complained of, i.e., rape. Consequently, the
appeal is hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is
DISMISSED with costs de oficio.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.
Cruz, J., is on leave.
ELCANO vs. HILL, ET AL.,
G.R. No. L-24803, 26 May 1977, 77 SCRA 98
BARREDO, J p:
Appeal from the order of the Court of First Instance of
Quezon City dated January 29, 1965 in Civil Case No.
Q-8102, Pedro Elcano et al. vs. Reginald Hill et al.
dismissing, upon motion to dismiss of defendants, the
complaint of plaintiffs for recovery of damages from
defendant Reginald Hill, a minor, married at the time of
the occurrence, and his father, the defendant Marvin
Hill, with whom he was living and getting subsistence,
for the killing by Reginald of the son of the plaintiffs,
named Agapito Elcano, of which, when criminally
prosecuted, the said accused was acquitted on the
ground that his act was not criminal, because of "lack of
intent to kill, coupled with mistake."
xxx xxx xxx
It appears that for the killing of the son, Agapito, of
plaintiffs-appellants, defendant-appellee Reginald Hill
was prosecuted criminally in Criminal Case No. 5102 of
the Court of First Instance of Quezon City. After due
trial, he was acquitted on the ground that his act was
not criminal because of "lack of intent to kill, coupled
with mistake." Parenthetically, none of the parties has
favored Us with a copy of the decision of acquittal,
presumably because appellants do not dispute that
such indeed was the basis stated in the court's decision.
And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on
account of the death of their son, the appellees filed the
motion to dismiss above-referred to.
As We view the foregoing background of this case, the
two decisive issues presented for Our resolution are:
1. Is the present civil action for damages barred by
the acquittal of Reginald in the criminal case
wherein the action for civil liability was not
reversed?
2. May Article 2180 (2nd and last paragraphs) of the
Civil Code be applied against Atty. Hill,
notwithstanding the undisputed fact that at the
time of the occurrence complained of, Reginald,
though a minor, living with and getting subsistence
from his father, was already legally married?
The first issue presents no more problem than the need
for a reiteration and further clarification of the dual
character, criminal and civil, of fault or negligence as a
source of obligation which was firmly established in
this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that
case, this Court postulated, on the basis of a scholarly
dissertation by Justice Bocobo on the nature of culpa
aquiliana in relation to culpa criminal or delito and mere
culpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the
same given act can result in civil liability not only
under the Penal Code but also under the Civil Code.
Thus, the opinion holds:
"The above case is pertinent because
it shows that the same act may come
under both the Penal Code and the
Civil Code. In that case, the action of
the agent was unjustified and
fraudulent and therefore could have
been the subject of a criminal action.
And yet, it was held to be also a
proper subject of a civil action under
article 1902 of the Civil Code. It is
also to be noted that it was the
employer and not the employee who
was being sued." (pp. 615-616, 73
Phil.)
"It will be noticed that the defendant
in the above case could have been
prosecuted in a criminal case because
his negligence causing the death of
the child was punishable by the Penal
Code. Here is therefore a clear
instance of the same act of negligence
being a proper subject matter either
of a criminal action with its
consequent civil liability arising from
a crime or of an entirely separate and
independent civil action for fault or
negligence under article 1902 of the
Civil Code. Thus, in this jurisdiction,
the separate individuality of a cuasi-
delito or culpa aquiliana under the
Civil Code has been fully and clearly
recognized, even with regard to a
negligent act for which the
wrongdoer could have been
prosecuted and convicted in a
criminal case and for which, after
such a conviction, he could have been
sued for this civil liability arising
from his crime." (p. 617, 73 Phil.)
"It is most significant that in the case
just cited, this Court specifically
applied article 1902 of the Civil Code.
It is thus that although J. V. House
could have been criminally
prosecuted for reckless or simple
negligence and not only punished but
also made civilly liable because of his
criminal negligence, nevertheless this
Court awarded damages in an
independent civil action for fault or
negligence under article 1902 of the
Civil Code." (p. 618, 73 Phil.)
"The legal provisions, authors, and
cases already invoked should
ordinarily be sufficient to dispose of
this case. But inasmuch as we are
announcing doctrines that have been
little understood, in the past, it might
not be inappropriate to indicate their
foundations.
"Firstly, the Revised Penal Code in
articles 365 punishes not only
reckless but also simple negligence. If
we were to hold that articles 1902 to
1910 of the Civil Code refer only to
fault or negligence not punished by
law, accordingly to the literal import
of article 1093 of the Civil Code, the
legal institution of culpa aquilina
would have very little scope and
application in actual life. Death or
injury to persons and damage to
property through any degree of
negligence — even the slightest —
would have to be indemnified only
through the principle of civil liability
arising from a crime. In such a state
of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We
are loath to impute to the lawmaker
any intention to bring about a
situation to absurd and anomalous.
Nor are we, in the interpretation of
the laws, disposed to uphold the
letter that killeth rather than the spirit
that giveth life. We will not use the
literal meaning of the law to smother
6
 and render almost lifeless a principle
of such ancient origin and such full-
grown development as culpa aquiliana
or cuasi-delito, which is conserved
and made enduring in articles 1902 to
1910 of the Spanish Civil Code.
"Secondly, to find the accused guilty
in a criminal case, proof of guilt
beyond reasonable doubt is required,
while in a civil case, preponderance
of evidence is sufficient to make the
defendant pay in damages. There are
numerous cases of criminal
negligence which can not be shown
beyond reasonable doubt, but can be
proved by a preponderance of
evidence. In such cases, the
defendant can and should be made
responsible in a civil action under
articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many
instances of unvindicated civil
wrongs. Ubi jus ibi remedium." (p.
620, 73 Phil.)
"Fourthly, because of the broad
sweep of the provisions of both the
Penal Code and the Civil Code on
this subject, which has given rise to
the overlapping or concurrence of
spheres already discussed, and for
lack of understanding of the character
and efficacy of the action for culpa
aquiliana, there has grown up a
common practice to seek damages
only by virtue of the civil
responsibility arising from a crime,
forgetting that there is another
remedy, which is by invoking articles
1902-1910 of the Civil Code.
Although this habitual method is
allowed by our laws, it has
nevertheless rendered practically
useless and nugatory the more
expeditious and effective remedy
based on culpa aquiliana or culpa extra
contractual. In the present case, we are
asked to help perpetuate this usual
course. But we believe it is high time
we pointed out to the harms done by
such practice and to restore the
principle of responsibility for fault or
negligence under articles 1902 et seq.
of the Civil Code to its full rigor. It is
high time we caused the stream of
quasi-delict or culpa aquiliana to flow
on its own natural channel, so that its
waters may no longer be diverted
into that of a crime under the Penal
Code. This will, it is believed, make
for the better safeguarding or private
7
rights because it re-establishes an
ancient and additional remedy, and
for the further reason that an
independent civil action, not
depending on the issues, limitations
and results of a criminal prosecution,
and entirely directed by the party
wronged or his counsel, is more
likely to secure adequate and
efficacious redress." (p. 621, 73 Phil.)
Contrary to an immediate impression one might get
upon a reading of the foregoing excerpts from the
opinion in Garcia - that the concurrence of the Penal
Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional
voluntary acts — deeper reflection would reveal that
the thrust of the pronouncements therein is not so
limited, but that in fact it actually extends to fault or
culpa. This can be seen in the reference made therein to
the Sentence of the Supreme Court of Spain of February
14, 1919, supra, which involved a case of fraud or
estafa, not a negligent act. Indeed, Article 1093 of the
Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived
from acts or omissions in which fault or negligence, not
punishable by law, intervene shall be the subject of
Chapter II, Title XV of this book (which refers to quasi-
delicts.)" And it is precisely the underline qualification,
"not punishable by law", that Justice Bocobo
emphasized could lead to an undesirable construction
or interpretation of the letter of the law that "killeth,
rather than the spirit that giveth life" hence, the ruling
that "(W)e will not use the literal meaning of the law to
smother and render almost lifeless a principle of such
ancient origin and such full-grown development as
culpa aquiliana or cuasi-delito, which is conserved and
made enduring in articles 1902 to 1910 of the Spanish
Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the
original text of the new Civil Code, it is to be noted that
the said Code, which was enacted after the Garcia
doctrine, no longer uses the term, "not punishable by
law," thereby making it clear that the concept of culpa
aquiliana includes acts which are criminal in character
or in violation of the penal law, whether voluntary or
negligent. Thus, the corresponding provisions to said
Article 1093 in the new code, which is Article 1162,
simply says, "Obligations derived from quasi-delicts
shall be governed by the provisions of Chapter 2, Title
XVII of this Book, (on quasi-delicts) and by special laws."
More precisely, a new provision, Article 2177 of the
new code provides:
"ART. 2177. Responsibility for
fault or negligence under the
preceding article is entirely separate
and distinct from the civil liability
arising from negligence under the
Penal Code. But the plaintiff cannot
recover damages twice for the same
act or omission of the defendant."
According to the Code Commission: "The foregoing
provision (Article 2177) through at first sight startling,
is not so novel or extraordinary when we consider the
exact nature of criminal and civil negligence. The
former is a violation of the criminal law, while the latter
is a 'culpa aquilian' or quasi-delict, of ancient origin,
having always had its own foundation and
individuality, separate from criminal negligence. Such
distinction between criminal negligence and 'culpa extra
contractual' or 'cuasi-delito' has been sustained by
decision of the Supreme Court of Spain and maintained
as clear, sound and perfectly tenable by Maura, an
outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of
criminal negligence, whether on reasonable doubt or
not, shall not be a bar to a subsequent civil action, not
for civil liability arising from criminal negligence, but
for damages due to a quasi-delict or 'culpa aquiliana'. But
said article forestalls a double recovery." (Report of the
Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally
refer to only acts of negligence, the same argument of
Justice Bacobo about construction that upholds "the
spirit that giveth life" rather than that which is literal
that killeth the intent of the lawmaker should be
observed in applying the same. And considering that
the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and
independence of liability in a civil action for acts
criminal in character (under Articles 29 to 32) from the
civil responsibility arising from crime fixed by Article
100 of the Revised Penal Code, and, in a sense, the
Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more
congruent with the spirit of law, equity and justice, and
more in harmony with modern progress", to borrow the
felicitous relevant language in Rakes vs. Atlantic. Gulf
and Pacific Co., 7 Phil. 359, to hold, as We do hold, that
Article 2176, where it refers to "fault or negligence,"
covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil
action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled
in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to
in Par. (e) of Section 3, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or
has not been committed by the accused. Briefly stated,
We here hold, in reiteration of Garcia, that culpa
aquiliana includes voluntary and negligent acts which
may be punishable by law.
It results, therefore, that the acquittal of Reginal Hill in
the criminal case has not extinguished his liability for
quasi-delict, hence that acquittal is not a bar to the
instant action against him.
Coming now to the second issue about the effect of
Reginald's emancipation by marriage on the possible
civil liability of Atty. Hill, his father, it is also Our
considered opinion that the conclusion of appellees that
Atty. Hill is already free from responsibility cannot be
upheld.
While it is true that parental authority is terminated
upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes place
"by the marriage of the minor (child)", it is, however,
also clear that pursuant to Article 399, emancipation by
marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary
concession shall terminate parental authority over the
child's person. It shall enable the minor to administer
his property as though he were of age, but he cannot
borrow money or alienate or encumber real property
without the consent of his father or mother, or
guardian. He can sue and be sued in court only with
the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by
article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom
one is responsible. The father and, in case of his death
or incapacity, the mother, are responsible. The father
and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor
children who live in their company." In the instant case,
it is not controverted that Reginald, although married,
was living with his father and getting subsistence from
him at the time of the occurrence in question. Factually,
therefore, Reginald was still subservient to and
dependent on his father, a situation which is not
unusual.
It must be borne in mind that, according to Manresa,
the reason behind the joint and solidary liability of
parents with their offending child under Article 2180 is
that is the obligation of the parent to supervise their
minor children in order to prevent them from causing
damage to third persons. 5 On the other hand, the clear
implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or
be sued without the assistance of the parents, is that
such emancipation does not carry with it freedom to
enter into transactions or do any act that can give rise to
judicial litigation. (See Manresa, id., Vol. II, pp. 766-767,
776.) And surely, killing someone else invites judicial
action. Otherwise stated, the marriage of a minor child
does not relieve the parents of the duty to see to it that
the child, while still a minor, does not give answerable
for the borrowings of money and alienation or
encumbering of real property which cannot be done by
8
their minor married child without their consent. (Art.
399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180
applies to Atty. Hill notwithstanding the emancipation
by marriage of Reginald. However, inasmuch as it is
evident that Reginald is now of age, as a matter of
equity, the liability of Atty. Hill has become merely
subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and
the trial court is ordered to proceed in accordance with
the foregoing opinion. Costs against appellees.
Fernando (Chairman), Antonio and Martin, JJ., concur.
Concepcion Jr., J., is on leave.
Martin, J., was designated to sit in the Second Division.
DMPI EMPLOYEES CREDIT COOPERATIVE, INC.,
(DMPI-ECCI) vs. VELEZ, ET AL.,
G.R. No. 129282, 29 November 2001,
PARDO, J p:
The Case
In this special civil action for certiorari, petitioner DMPI
Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks
the annulment of the order 1 of the Regional Trial
Court, Misamis Oriental, Branch 20, granting the
motion for reconsideration of respondent Eriberta
Villegas, and thus reversing the previous dismissal of
Civil Case No. CV-94-214.
The Facts
On February 18, 1994, the prosecuting attorney filed
with the Regional Trial Court, Misamis Oriental, Branch
37, an information for estafa against Carmen Mandawe
for alleged failure to account to respondent Eriberta
Villegas the amount of P608,532.46. Respondent
Villegas entrusted this amount to Carmen Mandawe, an
employee of petitioner DMPI-ECCI, for deposit with
the teller of petitioner.
Subsequently, on March 29, 1994, respondent Eriberta
Villegas filed with the Regional Trial Court, Misamis
Oriental, Branch 20, a complaint against Carmen
Mandawe and petitioner DMPI-ECCI for a sum of
money and damages with preliminary attachment
arising out of the same transaction. In time, petitioner
sought the dismissal of the civil case on the following
grounds: (1) that there is a pending criminal case in
RTC Branch 37, arising from the same facts, and (2) that
the complaint failed to contain a certification against
forum shopping as required by Supreme Court Circular
No. 28-91.
On December 12, 1996, the trial court issued an order
dismissing Civil Case No. CV-94-214. On January 21,
9
1997, respondent filed a motion for reconsideration of
the order.
On February 21, 1997, the trial court issued an order
granting respondent's motion for reconsideration,
thereby recalling the dismissal of the case.
Hence, this petition.
The Issues
The issues raised are: xxx (2) whether the civil case
could proceed independently of the criminal case for
estafa without having reserved the filing of the civil
action.
The Court's Ruling
xxx xxx xxx
On the second issue, as a general rule, an offense causes
two (2) classes of injuries. The first is the social injury
produced by the criminal act which is sought to be
repaired thru the imposition of the corresponding
penalty, and the second is the personal injury caused to
the victim of the crime which injury is sought to be
compensated through indemnity which is civil in
nature.
Thus, "every person criminally liable for a felony is also
civilly liable." This is the law governing the recovery of
civil liability arising from the commission of an offense.
Civil liability includes restitution, reparation for
damage caused, and indemnification of consequential
damages.
The offended party may prove the civil liability of an
accused arising from the commission of the offense in
the criminal case since the civil action is either deemed
instituted with the criminal action or is separately
instituted.
Rule 111, Section 1 of the Revised Rules of Criminal
Procedure, which became effective on December 1,
2000, provides that:
"(a) When a criminal action is
instituted, the civil action for the
recovery of civil liability arising from the
offense charged shall be deemed instituted
with the criminal action unless the
offended party waives the civil
action, reserves the right to institute it
separately or institutes the civil action
prior to the criminal action." [Italics
supplied]
Rule 111, Section 2 further provides that —
"After the criminal action has been
commenced, the separate civil action
arising therefrom cannot be instituted
 until final judgment has been entered in
the criminal action." [Italics supplied]
However, with respect to civil actions for recovery of
civil liability under Articles 32, 33, 34 and 2176 of the
Civil Code arising from the same act or omission, the
rule has been changed.
Under the present rule, only the civil liability arising
from the offense charged is deemed instituted with the
criminal action unless the offended party waives the
civil action, reserves his right to institute it separately,
or institutes the civil action prior to the criminal action.
There is no more need for a reservation of the right to
file the independent civil actions under Articles 32, 33,
34 and 2176 of the Civil Code of the Philippines. "The
reservation and waiver referred to refers only to the
civil action for the recovery of the civil liability arising
from the offense charged. This does not include
recovery of civil liability under Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines arising from
the same act or omission which may be prosecuted
separately even without a reservation."
Rule 111, Section 3 reads:
"Sec. 3. When civil action may
proceed independently. — In the
cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the
Philippines, the independent civil
action may be brought by the
offended party. It shall proceed
independently of the criminal action
and shall require only a Padilla, Filomeno Galdones, Pepito
preponderance of evidence. In no
case, however, may the offended
party recover damages twice for the
same act or omission charged in the
criminal action."
xxx xxx xxx
Thus, Civil Case No. CV-94-214, an independent civil
action for damages on account of the fraud committed
against respondent Villegas under Article 33 of the
Civil Code, may proceed independently even if there
was no reservation as to its filing.
The Fallo
WHEREFORE, the Court DENIES the petition. The
Court AFFIRMS the order dated February 21, 1997. 20
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago.,
JJ., concur.
PADILLA, ET AL. vs. COURT OF APPEALS
G.R. No. L-39999, 31 May 1984, 129 SCRA 558
GUTIERREZ, JR., J p:
This is a petition for review on certiorari of a Court of
Appeals' decision which reversed the trial court's
judgment of conviction and acquitted the petitioners of
the crime of grave coercion on the ground of reasonable
doubt but inspite of the acquittal ordered them to pay
jointly and severally the amount of P9,000.00 to the
complainants as actual damages.
The petitioners were charged under the following
information:
"The undersigned Fiscal accused ROY
PADILLA, FILOMENO GALDONES,
PEPITO BEDEÑA, YOLLY RICO,
DAVID BERMUNDO, VILLANOAC,
ROBERTO ROSALES, VILLANIA,
ROMEO GARRIDO, JOSE ORTEGA,
JR., RICARDO CELESTINO,
REALINGO alias "KAMLON", JOHN
DOE alias TATO, and FOURTEEN
(14) RICARDO DOES of the crime of
GRAVE COERCION, committed as
follows:
"That on or about February 8, 1964 at
around 9:00 o'clock in the morning, in
the municipality of Jose Panganiban,
province of Camarines Norte,
Philippines, and within the
jurisdiction of this Honorable Court,
the above-named accused, Roy
Bedeña, Yolly Rico, David Bermundo,
Villanoac, Roberto Rosales, Villania,
Romeo Garrido, Jose Ortega, Jr.,
Ricardo Celestino, Realingo alias
Kamlon, John Doe alias Tato, and
Fourteen Richard Does, by
confederating and mutually helping
one another, and acting without any
authority of law, did then and there
wilfully, unlawfully, and feloniously,
by means of threats, force and
violence prevent Antonio Vergara
and his family to close their stall
located at the Public Market, Building
No. 3, Jose Panganiban, Camarines
Norte, and by subsequently forcibly
opening the door of said stall and
thereafter brutally demolishing and
destroying said stall and the
furnitures therein by axes and other
massive instruments, and carrying
away the goods, wares and
merchandise, to the damage and
prejudice of the said Antonio Vergara
and his family in the amount of
P30,000.00 in concept of actual or
10
 compensatory and moral damages
and further the sum of P20,000.00 as
exemplary damages.
"That in committing the offense, the
accused took advantage of their
public positions: Roy Padilla, being
the incumbent municipal mayor, and
the rest of the accused being
policemen, except Ricardo Celestino
who is a civilian, all of Jose
Panganiban, Camarines Norte, and
that it was committed with evident
premeditation."
The Court of First Instance of Camarines Norte, Tenth
Judicial District rendered a decision, the dispositive
portion of which states that:
“IN VIEW OF THE FOREGOING, the
Court finds the accused Roy Padilla,
Filomeno Galdonez, Ismael Gonzalgo
and Jose Parley Bedeña guilty beyond
reasonable doubt of the crime of
grave coercion, and hereby imposes
upon them to suffer an imprisonment
of FIVE (5) months and One (1) day;
to pay a fine of P500.00 each; to pay
actual and compensatory damages in
the amount of P10,000.00; moral
damages in the amount of P30,000.00;
and another P10,000.00 for exemplary
damages, jointly and severally, and
all the accessory penalties provided
for by law; and to pay the
proportionate costs of this
proceedings.
"The accused Federico Realingo alias
'Kamlon', David Bermudo,
Christopher Villaoac, Godofredo
Villania, Romeo Garrido, Roberto
Rosales, Ricardo Celestino and Jose
Ortega, are hereby ordered acquitted
on grounds of reasonable doubt for
their criminal participation in the
crime charged.”
xxx xxx xxx
The issue posed in the instant proceeding is whether or
not the respondent court committed a reversible error
in requiring the petitioners to pay civil indemnity to the
complainants after acquitting them from the criminal
charge.
Petitioners maintain the view that where the civil
liability which is included in the criminal action is that
arising from and as a consequence of the criminal act,
and the defendant was acquitted in the criminal case,
(no civil liability arising from the criminal case), no civil
liability arising from the criminal charge could be
11
imposed upon him. They cite precedents to the effect
that the liability of the defendant for the return of the
amount received by him may not be enforced in the
criminal case but must be raised in a separate civil
action for the recovery of the said amount (People v.
Pantig, 97 Phil. 748; following the doctrine laid down in
Manila Railroad Co. v. Honorable Rodolfo Baltazar, 49 O.G.
3874; Pueblo contra Abellera, 69 Phil. 623; People v.
Mañago, 69 Phil. 496; People v. Miranda, 5 SCRA 1067;
Aldaba v. Elepaño, 116 Phil. 457).
In the case before us, the petitioners were acquitted not
because they did not commit the acts stated in the
charge against them. There is no dispute over the
forcible opening of the market stall, its demolition with
axes and other instruments, and the carting away of the
merchandize. The petitioners were acquitted because
these acts were denominated coercion when they
properly constituted some other offense such as threat
or malicious mischief.
xxx xxx xxx
Section 1 of Rule 111 of the Rules of Court states the
fundamental proposition that when a criminal action is
instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted
with it. There is no implied institution when the
offended party expressly waives the civil action or
reserves his right to institute it separately. (Morte Sr. v.
Alvizo, Jr., 101 SCRA 221).
The extinction of the civil action by reason of acquittal
in the criminal case refers exclusively to civil liability ex
delicto founded on Article 100 of the Revised Penal
Code. (Elcano v. Hill, 77 SCRA 98; Virata v. Ochoa, 81
SCRA 472). In other words, the civil liability which is
also extinguished upon acquittal of the accused is the
civil liability arising from the act as a crime.
As early as 1942, the Supreme Court speaking through
Justice Jorge Bocobo in Barredo v. Garcia et al., 73 Phil.
607, laid down the rule that the same punishable act or
omission can create two kinds of civil liabilities against
the accused and, where provided by law, his employer.
There is the civil liability arising from the act as a crime
and the liability arising from the same act as a quasi-
delict. Either one of these two types of civil liability may
be enforced against the accused. However, the offended
party cannot recover damages under both types of
liability. For instance, in cases of criminal negligence or
crimes due to reckless imprudence, Article 2177 of the
Civil Code provides:
"Responsibility for fault or negligence
under the preceding article is entirely
separate and distinct from the civil
liability arising from negligence
under the Penal Code. But the
plaintiff cannot recover damages
twice for the same act or omission of
the defendant"

Section 3 (c) of Rule 111 specifically provides that:
"Sec. 3. Other civil actions arising
from offenses. — In all cases not
included in the preceding section the
following rules shall be observed:
xxx xxx xxx
(c) Extinction of the penal
action does not carry with it
extinction of the civil, unless the
extinction proceeds from a in the interest of the Capiz
declaration in a final judgment that
the fact from which the civil might
arise did not exist. In other cases, the
person entitled to the civil action may
institute it in the jurisdiction and in
the manner provided by law against
the person who may be liable for
restitution of the thing and reparation
or indemnity for the damage
suffered.
The judgment of acquittal extinguishes the liability of
the accused for damages only when it includes a
declaration that the facts from which the civil might
arise did not exist. Thus, the civil liability is not
extinguished by acquittal where the acquittal is based
on reasonable doubt (PNB v. Catipon, 98 Phil. 286) as
only preponderance of evidence is required in civil
cases; where the court expressly declares that the
liability of the accused is not criminal but only civil in
nature (De Guzman v. Alvia, 96 Phil. 558; People v. Pantig,
supra) as, for instance, in the felonies of estafa, theft,
and malicious mischief committed by certain relatives
who thereby incur only civil liability (See Art. 332,
Revised Penal Code); and, where the civil liability does
not arise from or is not based upon the criminal act of
which the accused was acquitted (Castro v. Collector of
Internal Revenue, 4 SCRA 1093; See Regalado, Remedial
Law Compendium, 1983 ed., p. 623).
Article 29 of the Civil Code also provides that:
"When the accused in a criminal
prosecution is acquitted on the
ground that his guilt has not been
proved beyond reasonable doubt, a
civil action for damages for the same
act or omission may be instituted.
Such action requires only a
preponderance of evidence. Upon
motion of the defendant, the court
may require the plaintiff to file a
bond to answer for damages in case
the complaint should be found to be
malicious.
"If in a criminal case the judgment of
acquittal is based upon reasonable
doubt, the court shall so declare. In
the absence of any declaration to that
effect, it may be inferred from the text
of the decision whether or not the
acquittal is due to that ground."
More recently, we held that the acquittal of the
defendant in the criminal case would not constitute an
obstacle to the filing of a civil case based on the same
acts which led to the criminal prosecution:
". . . The finding by the respondent
court that he spent said sum for and
Agricultural and Fishery School and
for his personal benefit is not a
declaration that the fact upon which
Civil Case No. V-3339 is based does
not exist. The civil action barred by
such a declaration is the civil liability
arising from the offense charged,
which is the one impliedly instituted
with the criminal action. (Section I,
Rule III, Rules of Court.) Such a
declaration would not bar a civil
action filed against an accused who
had been acquitted in the criminal
case if the criminal action is
predicated on factual or legal
considerations other than the
commission of the offense charged. A
person may be acquitted of
malversation where, as in the case at
bar, he could show that he did not
misappropriate the public funds in
his possession, but he could be
rendered liable to restore said funds
or at least to make a proper
accounting thereof if he shall spend
the same for purposes which are not
authorized nor intended, and in a
manner not permitted by applicable
rules and regulations." (Republic v.
Bello, 120 SCRA 203).
There appear to be no sound reasons to require a
separate civil action to still be filed considering that the
facts to be proved in the civil case have already been
established in the criminal proceedings where the
accused was acquitted. Due process has been accorded
the accused. He was, in fact, exonerated of the criminal
charged. The constitutional presumption of innocence
called for more vigilant efforts on the part of
prosecuting attorneys and defense counsel, a keener
awareness by all witnesses of the serious implications
of perjury, and a more studied consideration by the
judge of the entire records and of applicable statutes
and precedents. To require a separate civil action
simply because the accused was acquitted would mean
needless clogging of court dockets and unnecessary
duplication of litigation with all its attendant loss of
time, effort, and money on the part of all concerned.
12
 xxx xxx xxx
The petitioners, themselves, do not deny the fact that
they caused the destruction of the complainant's market
stall and had its contents carted away. They state:
"On February 8, 1964, despite
personal pleas on Vergaras by the
Mayor to vacate the passageways of
Market Building No. 3, the Vergaras
were still in the premises, so the
petitioners Chief of Police and
members of the Police Force of Jose
Panganiban, pursuant to the Mayor's
directives, demolished the store of
the Vergaras, made an inventory of
the goods found in said store, and
brought these goods to the municipal
building under the custody of the
Municipal Treasurer, . . ."
The only supposed obstacle is the provision of Article
29 of the Civil Code, earlier cited, that "when the
accused in a criminal prosecution is acquitted on the
ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the
same act or omission may be instituted." According to
some scholars, this provision of substantive law calls
for a separate civil action and cannot be modified by a
rule of remedial law even in the interests of economy
and simplicity and following the dictates of logic and
common sense.
As stated by retired Judge J. Cezar Sangco:
". . . if the Court finds the evidence
sufficient to sustain the civil action
but inadequate to justify a conviction
in the criminal action, may it render
judgment acquitting the accused on
reasonable doubt, but hold him
civilly liable nonetheless? An
affirmative answer to this question
would be consistent with the doctrine
that the two are distinct and separate
actions, and will (a) dispense with the
reinstituting of the same civil action,
or one based on quasi-delict or other
independent civil action, and of
presenting the same evidence; (b)
save the injured party unnecessary
expenses in the prosecution of the
civil action or enable him to take
advantage of the free services of the
fiscal; and (c) otherwise resolve the
unsettling implications of permitting
the reinstitution of a separate civil
action whether based on delict, or
quasi-delict, or other independent civil
actions.
13
". . . But for the court to be able to
adjudicate in the manner here
suggested, Art. 29 of the Civil Code
should be amended because it clearly
and expressly provides that the civil
action based on the same act or
omission may only be instituted in a
separate action, and therefore, may
not inferentially be resolved in the
same criminal action. To dismiss the
civil action upon acquittal of the
accused and disallow the
reinstitution of any other civil action,
would likewise render, unjustifiably,
the acquittal on reasonable doubt
without any significance, and would
violate the doctrine that the two
actions are distinct and separate.
"In the light of the foregoing
exposition, it seems evident that there
is much sophistry and no
pragmatism in the doctrine that it is
inconsistent to award in the same
proceedings damages against the
accused after acquitting him on
reasonable doubt. Such doctrine must
recognize the distinct and separate
character of the two actions, the
nature of an acquittal on reasonable
doubt, the vexatious and oppressive
effects of a reservation or institution
of a separate civil action, and that the
injured party is entitled to damages
not because the act or omission is
punishable but because he was
damaged or injured thereby (Sangco,
Philippine Law on Torts and
Damages, pp. 288-289).
We see no need to amend Article 29 of the Civil Code in
order to allow a court to grant damages despite a
judgment of acquittal based on reasonable doubt. What
Article 29 clearly and expressly provides is a remedy
for the plaintiff in case the defendant has been
acquitted in a criminal prosecution on the ground that
his guilt has not been proved beyond reasonable doubt.
It merely emphasizes that a civil action for damages is
not precluded by an acquittal for the same criminal act
or omission. The Civil Code provision does not state
that the remedy can be availed of only in a separate
civil action. A separate civil case may be filed but there
is no statement that such separate filing is the only and
exclusive permissible mode of recovering damages.
There is nothing contrary to the Civil Code provision in
the rendition of a judgment of acquittal and a judgment
awarding damages in the same criminal action. The two
can stand side by side. A judgment of acquittal operates
to extinguish the criminal liability. It does not, however,
extinguish the civil liability unless there is clear
showing that the act from which civil liability might
arise did not exist.
A different conclusion would be attributing to the Civil
Code a trivial requirement, a provision which imposes
an uncalled for burden before one who has already
been the victim of a condemnable, yet non-criminal, act
may be accorded the justice which he seeks.
We further note the rationale behind Art. 29 of the Civil
Code in arriving at the intent of the legislator that they
could not possibly have intended to make it more
difficult for the aggrieved party to recover just
compensation by making a separate civil action
mandatory and exclusive:
"The old rule that the acquittal of the
accused in a criminal case also
releases him from civil liability is one
of the most serious flaws in the
Philippine legal system. It has given
rise to numberless instances of
miscarriage of justice, where the
acquittal was due to a reasonable
doubt in the mind of the court as to
the guilt of the accused. The
reasoning followed is that inasmuch
as the civil responsibility is derived
from the criminal offense, when the
latter is not proved, civil liability
cannot be demanded.
"This is one of those cases where
confused thinking leads to
unfortunate and deplorable
consequences. Such reasoning fails to
draw a clear line of demarcation
between criminal liability and civil
responsibility, and to determine the
logical result of the distinction. The
two liabilities are separate and
distinct from each other, One affects
the social order and the other, private
rights. One is for the punishment or
correction of the offender while the
other is for reparation of damages
suffered by the aggrieved party. . . . It
is just and proper that, for the
purposes of the imprisonment of or
fine upon the accused, the offense
should be proved beyond reasonable
doubt. But for the purpose of
indemnifying the complaining party,
why should the offense also be
proved beyond reasonable doubt? Is
not the invasion or violation of every
private right to be proved only by
preponderance of evidence? Is the
right of the aggrieved person any less
private because the wrongful act is
also punishable by the criminal law?
(Code Commission, pp. 45-46).
A separate civil action may be warranted where
additional facts have to be established or more evidence
must be adduced or where the criminal case has been
fully terminated and a separate complaint would be
just as efficacious or even more expedient than a timely
remand to the trial court where the criminal action was
decided for further hearings on the civil aspects of the
case. The offended party may, of course, choose to file a
separate action. These do not exist in this case.
Considering moreover the delays suffered by the case
in the trial, appellate, and review stages, it would be
unjust to the complainants in this case to require at this
time a separate civil action to be filed.
With this in mind, we therefore hold that the
respondent Court of Appeals did not err in awarding
damages despite a judgment of acquittal.
WHEREFORE, we hereby AFFIRM the decision of the
respondent Court of Appeals and dismiss the petition
for lack of merit.
SO ORDERED.
Fernando, C .J ., Teehankee, Makasiar, Guerrero, Abad
Santos, Melencio-Herrera, Plana, Escolin, Relova and
De la Fuente, JJ ., concur.
Aquino, J ., concurs in the result.
Concepcion, Jr., J ., is on leave.
De Castro, J ., took no part.
PHILIPPINE RABBIT BUS LINES, INC. vs.
PEOPLE OF THE PHILIPPINES
G.R. No. 147703, 14 April 2004, 427 SCRA 456
PANGANIBAN, J p:
When the accused-employee absconds or jumps bail,
the judgment meted out becomes final and executory.
The employer cannot defeat the finality of the judgment
by filing a notice of appeal on its own behalf in the
guise of asking for a review of its subsidiary civil
liability. Both the primary civil liability of the accused-
employee and the subsidiary civil liability of the
employer are carried in one single decision that has
become final and executory.
xxx xxx xxx
The Facts
The facts of the case are summarized by the CA in this
wise:
"On July 27, 1994, accused [Napoleon Roman y
Macadangdang] was found guilty and convicted of the
crime of reckless imprudence resulting to triple
homicide, multiple physical injuries and damage to
property and was sentenced to suffer the penalty of
14
four (4) years, nine (9) months and eleven (11) days to
six (6) years, and to pay damages as follows:
xxx xxx xxx
"The court further ruled that [petitioner], in the event of
the insolvency of accused, shall be liable for the civil
liabilities of the accused. Evidently, the judgment
against accused had become final and executory.
"Admittedly, accused had jumped bail and remained
at-large. It is worth mention[ing] that Section 8, Rule
124 of the Rules of Court authorizes the dismissal of
appeal when appellant jumps bail. Counsel for accused,
also admittedly hired and provided by [petitioner],
filed a notice of appeal which was denied by the trial
court. We affirmed the denial of the notice of appeal
filed in behalf of accused.
"Simultaneously, on August 6, 1994, [petitioner] filed its
notice of appeal from the judgment of the trial court.
On April 29, 1997, the trial court gave due course to
[petitioner's] notice of appeal. On December 8, 1998,
[petitioner] filed its brief. On December 9, 1998, the
Office of the Solicitor General received [a] copy of
[petitioner's] brief. On January 8, 1999, the OSG moved
to be excused from filing [respondents'] brief on the
ground that the OSG's authority to represent People is
confined to criminal cases on appeal. The motion was
however denied per Our resolution of May 31, 1999. On
March 2, 1999, [respondent]/private prosecutor filed
the instant motion to dismiss." (Citations omitted)
xxx xxx xxx
The Issues
Petitioner states the issues of this case as follows:
"A. Whether or not an
employer, who dutifully participated
in the defense of its accused-
employee, may appeal the judgment
of conviction independently of the
accused.
"B. Whether or not the doctrines
of Alvarez v. Court of Appeals (158
SCRA 57) and Yusay v. Adil (164
SCRA 494) apply to the instant case."
There is really only one issue. Item B above is merely an
adjunct to Item A.
The Court's Ruling
The Petition has no merit.
xxx xxx xxx
Liability of an Employer in a Finding of Guilt
15
Article 102 of the Revised Penal Code states the
subsidiary civil liabilities of innkeepers, as follows:
"In default of the persons criminally
liable, innkeepers, tavernkeepers, and
any other persons or corporations
shall be civilly liable for crimes
committed in their establishments, in
all cases where a violation of
municipal ordinances or some
general or special police regulation
shall have been committed by them
or their employees.
"Innkeepers are also subsidiary liable
for restitution of goods taken by
robbery or theft within their houses
from guests lodging therein, or for
payment of the value thereof,
provided that such guests shall have
notified in advance the innkeeper
himself, or the person representing
him, of the deposit of such goods
within the inn; and shall furthermore
have followed the directions which
such innkeeper or his representative
may have given them with respect to
the care and vigilance over such
goods. No liability shall attach in case
of robbery with violence against or
intimidation of persons unless
committed by the innkeeper's
employees."
Moreover, the foregoing subsidiary liability applies to
employers, according to Article 103 which reads:
"The subsidiary liability established
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."
Having laid all these basic rules and principles, we now
address the main issue raised by petitioner.
Civil Liability Deemed Instituted
in the Criminal Prosecution
At the outset, we must explain that the 2000 Rules of
Criminal Procedure has clarified what civil actions are
deemed instituted in a criminal prosecution.
Section 1 of Rule 111 of the current Rules of Criminal
Procedure provides:
"When a criminal action is instituted,
the civil action for the recovery of
civil liability arising from the offense
 charged shall be deemed instituted
with the criminal action unless the
offended party waives the civil
action, reserves the right to institute it
separately or institutes the civil action
prior to the criminal action.
xxx xxx xxx"
Only the civil liability of the accused arising from the
crime charged is deemed impliedly instituted in a
criminal action; that is, unless the offended party
waives the civil action, reserves the right to institute it
separately, or institutes it prior to the criminal action.
Hence, the subsidiary civil liability of the employer
under Article 103 of the Revised Penal Code may be
enforced by execution on the basis of the judgment of
conviction meted out to the employee.
It is clear that the 2000 Rules deleted the requirement of
reserving independent civil actions and allowed these
to proceed separately from criminal actions. Thus, the
civil actions referred to in Articles 32, 20 33, 21 34 22
and 2176 23 of the Civil Code shall remain "separate,
distinct and independent" of any criminal prosecution
based on the same act. Here are some direct
consequences of such revision and omission:
1. The right to bring the foregoing actions based on
the Civil Code need not be reserved in the criminal
prosecution, since they are not deemed included
therein.
2. The institution or the waiver of the right to file a
separate civil action arising from the crime charged
does not extinguish the right to bring such action.
3. The only limitation is that the offended party
cannot recover more than once for the same act or
omission.
What is deemed instituted in every criminal
prosecution is the civil liability arising from the crime
or delict per se (civil liability ex delicto), but not those
liabilities arising from quasi-delicts, contracts or quasi-
contracts. In fact, even if a civil action is filed
separately, the ex delicto civil liability in the criminal
prosecution remains, and the offended party may —
subject to the control of the prosecutor — still intervene
in the criminal action, in order to protect the remaining
civil interest therein.
This discussion is completely in accord with the
Revised Penal Code, which states that "[e]very person
criminally liable for a felony is also civilly liable."
Petitioner argues that, as an employer, it is considered a
party to the criminal case and is conclusively bound by
the outcome thereof. Consequently, petitioner must be
accorded the right to pursue the case to its logical
conclusion — including the appeal.
The argument has no merit. Undisputedly, petitioner is
not a direct party to the criminal case, which was filed
solely against Napoleon M. Roman, its employee.
In its Memorandum, petitioner cited a comprehensive
list of cases dealing with the subsidiary liability of
employers. Thereafter, it noted that none can be applied
to it, because "in all th[o]se cases, the accused's
employer did not interpose an appeal." Indeed,
petitioner cannot cite any single case in which the
employer appealed, precisely because an appeal in such
circumstances is not possible.
The cases dealing with the subsidiary liability of
employers uniformly declare that, strictly speaking,
they are not parties to the criminal cases instituted
against their employees. Although in substance and in
effect, they have an interest therein, this fact should be
viewed in the light of their subsidiary liability. While
they may assist their employees to the extent of
supplying the latter's lawyers, as in the present case, the
former cannot act independently on their own behalf,
but can only defend the accused.
xxx xxx xxx
Subsidiary Liability
Upon Finality of Judgment
As a matter of law, the subsidiary liability of petitioner
now accrues. Petitioner argues that the rulings of this
Court in Miranda v. Malate Garage & Taxicab, Inc.,
Alvarez v. CA and Yusay v. Adil do not apply to the
present case, because it has followed the Court's
directive to the employers in these cases to take part in
the criminal cases against their employees. By
participating in the defense of its employee, herein
petitioner tries to shield itself from the undisputed
rulings laid down in these leading cases.
Such posturing is untenable. In dissecting these cases
on subsidiary liability, petitioner lost track of the most
basic tenet they have laid down — that an employer's
liability in a finding of guilt against its accused-
employee is subsidiary.
Under Article 103 of the Revised Penal Code,
employers are subsidiarily liable for the adjudicated
civil liabilities of their employees in the event of the
latter's insolvency. 44 The provisions of the Revised
Penal Code on subsidiary liability — Articles 102 and
103 — are deemed written into the judgments in the
cases to which they are applicable. Thus, in the
dispositive portion of its decision, the trial court need
not expressly pronounce the subsidiary liability of the
employer.
In the absence of any collusion between the accused-
employee and the offended party, the judgment of
conviction should bind the person who is subsidiarily
liable. In effect and implication, the stigma of a criminal
conviction surpasses mere civil liability.
16

To allow employers to dispute the civil liability fixed in
a criminal case would enable them to amend, nullify or
defeat a final judgment rendered by a competent court.
By the same token, to allow them to appeal the final
criminal conviction of their employees without the
latter's consent would also result in improperly
amending, nullifying or defeating the judgment.
The decision convicting an employee in a criminal case
is binding and conclusive upon the employer not only
with regard to the former's civil liability, but also with
regard to its amount. The liability of an employer
cannot be separated from that of the employee.
Before the employers' subsidiary liability is exacted,
however, there must be adequate evidence establishing
that (1) they are indeed the employers of the convicted
employees; (2) that the former are engaged in some
kind of industry; (3) that the crime was committed by
the employees in the discharge of their duties; and (4)
that the execution against the latter has not been
satisfied due to insolvency.
The resolution of these issues need not be done in a
separate civil action. But the determination must be
based on the evidence that the offended party and the
employer may fully and freely present. Such
determination may be done in the same criminal action
in which the employee's liability, criminal and civil, has
been pronounced; and in a hearing set for that precise
purpose, with due notice to the employer, as part of the
proceedings for the execution of the judgment.
Just because the present petitioner participated in the
defense of its accused-employee does not mean that its
liability has transformed its nature; its liability remains
subsidiary. Neither will its participation erase its
subsidiary liability. The fact remains that since the
accused-employee's conviction has attained finality,
then the subsidiary liability of the employer ipso facto
attaches.
According to the argument of petitioner, fairness
dictates that while the finality of conviction could be
the proper sanction to be imposed upon the accused for
jumping bail, the same sanction should not affect it. In
effect, petitioner-employer splits this case into two:
first, for itself; and second, for its accused-employee.
The untenability of this argument is clearly evident.
There is only one criminal case against the accused-
employee. A finding of guilt has both criminal and civil
aspects. It is the height of absurdity for this single case
to be final as to the accused who jumped bail, but not as
to an entity whose liability is dependent upon the
conviction of the former.
The subsidiary liability of petitioner is incidental to and
dependent on the pecuniary civil liability of the
accused-employee. Since the civil liability of the latter
has become final and enforceable by reason of his flight,
17
then the former's subsidiary civil liability has also
become immediately enforceable. Respondent is correct
in arguing that the concept of subsidiary liability is
highly contingent on the imposition of the primary civil
liability.
No Deprivation of Due Process
As to the argument that petitioner was deprived of due
process, we reiterate that what is sought to be enforced
is the subsidiary civil liability incident to and
dependent upon the employee's criminal negligence. In
other words, the employer becomes ipso facto
subsidiarily liable upon the conviction of the employee
and upon proof of the latter's insolvency, in the same
way that acquittal wipes out not only his primary civil
liability, but also his employer's subsidiary liability for
his criminal negligence.
It should be stressed that the right to appeal is neither a
natural right nor a part of due process. It is merely a
procedural remedy of statutory origin, a remedy that
may be exercised only in the manner prescribed by the
provisions of law authorizing such exercise. 54 Hence,
the legal requirements must be strictly complied with.
It would be incorrect to consider the requirements of
the rules on appeal as merely harmless and trivial
technicalities that can be discarded. Indeed, deviations
from the rules cannot be tolerated. In these times when
court dockets are clogged with numerous litigations,
such rules have to be followed by parties with greater
fidelity, so as to facilitate the orderly disposition of
those cases.
After a judgment has become final, vested rights are
acquired by the winning party. If the proper losing
party has the right to file an appeal within the
prescribed period, then the former has the correlative
right to enjoy the finality of the resolution of the case.
In fact, petitioner admits that by helping the accused-
employee, it participated in the proceedings before the
RTC; thus, it cannot be said that the employer was
deprived of due process. It might have lost its right to
appeal, but it was not denied its day in court. In fact, it
can be said that by jumping bail, the accused-employee,
not the court, deprived petitioner of the right to appeal.
All told, what is left to be done is to execute the RTC
Decision against the accused. It should be clear that
only after proof of his insolvency may the subsidiary
liability of petitioner be enforced. It has been
sufficiently proven that there exists an employer-
employee relationship; that the employer is engaged in
some kind of industry; and that the employee has been
adjudged guilty of the wrongful act and found to have
committed the offense in the discharge of his duties.
The proof is clear from the admissions of petitioner that
"[o]n 26 August 1990, while on its regular trip from
Laoag to Manila, a passenger bus owned by petitioner,
being then operated by petitioner's driver, Napoleon
Roman, figured in an accident in San Juan, La Union . .
." Neither does petitioner dispute that there was
already a finding of guilt against the accused while he
was in the discharge of his duties.
WHEREFORE, the Petition is hereby DENIED, and the
assailed Resolutions AFFIRMED. Costs against
petitioner.
SO ORDERED.
Davide, Jr., C .J ., Ynares-Santiago, Carpio and Azcuna,
JJ ., concur.
MANLICLIC, ET AL. vs. CALAUNAN
G.R. No. 150157, 25 January 25, 2007, 512 SCRA 642
CHICO-NAZARIO, J p:
Assailed before Us is the decision 1 of the Court of
Appeals in CA-G.R. CV No. 55909 which affirmed in
toto the decision 2 of the Regional Trial Court (RTC) of
Dagupan City, Branch 42, in Civil Case No. D-10086,
finding petitioners Mauricio Manliclic and Philippine
Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay
damages and attorney's fees to respondent Modesto
Calaunan.
The factual antecedents are as follows:
The vehicles involved in this case are: (1) Philippine
Rabbit Bus No. 353 with plate number CVD-478, owned
by petitioner PRBLI and driven by petitioner Mauricio
Manliclic; and (2) owner-type jeep with plate number
PER-290, owned by respondent Modesto Calaunan and
driven by Marcelo Mendoza.
At around 6:00 to 7:00 o'clock in the morning of 12 July
1988, respondent Calaunan, together with Marcelo
Mendoza, was on his way to Manila from Pangasinan
on board his owner-type jeep. The Philippine Rabbit
Bus was likewise bound for Manila from Concepcion,
Tarlac. At approximately Kilometer 40 of the North
Luzon Expressway in Barangay Lalangan, Plaridel,
Bulacan, the two vehicles collided. The front right side
of the Philippine Rabbit Bus hit the rear left side of the
jeep causing the latter to move to the shoulder on the
right and then fall on a ditch with water resulting to
further extensive damage. The bus veered to the left
and stopped 7 to 8 meters from point of collision.
Respondent suffered minor injuries while his driver
was unhurt. He was first brought for treatment to the
Manila Central University Hospital in Kalookan City by
Oscar Buan, the conductor of the Philippine Rabbit Bus,
and was later transferred to the Veterans Memorial
Medical Center.
By reason of such collision, a criminal case was filed
before the RTC of Malolos, Bulacan, charging petitioner
Manliclic with Reckless Imprudence Resulting in
Damage to Property with Physical Injuries, docketed as
Crim. Case No. 684-M-89. Subsequently on 2 December
1991, respondent filed a complaint for damages against
petitioners Manliclic and PRBLI before the RTC of
Dagupan City, docketed as Civil Case No. D-10086. The
criminal case was tried ahead of the civil case. Among
those who testified in the criminal case were
respondent Calaunan, Marcelo Mendoza and Fernando
Ramos.
In the civil case (now before this Court), the parties
admitted the following:
1. The parties agreed on the capacity of the parties to
sue and be sued as well as the venue and the
identities of the vehicles involved;
2. The identity of the drivers and the fact that they are
duly licensed;
3. The date and place of the vehicular collision;
4. The extent of the injuries suffered by plaintiff
Modesto Calaunan and the existence of the medical
certificate;
5. That both vehicles were going towards the south;
the private jeep being ahead of the bus;
6. That the weather was fair and the road was well
paved and straight, although there was a ditch on
the right side where the jeep fell into.
When the civil case was heard, counsel for respondent
prayed that the transcripts of stenographic notes (TSNs)
of the testimonies of respondent Calaunan, Marcelo
Mendoza and Fernando Ramos in the criminal case be
received in evidence in the civil case in as much as
these witnesses are not available to testify in the civil
case.
Francisco Tuliao testified that his brother-in-law,
respondent Calaunan, left for abroad sometime in
November, 1989 and has not returned since then.
Rogelio Ramos took the stand and said that his brother,
Fernando Ramos, left for Amman, Jordan, to work.
Rosalia Mendoza testified that her husband, Marcelo
Mendoza, left their residence to look for a job. She
narrated that she thought her husband went to his
hometown in Panique, Tarlac, when he did not return
after one month. She went to her husband's hometown
to look for him but she was informed that he did not go
there.
The trial court subpoenaed the Clerk of Court of Branch
8, RTC, Malolos, Bulacan, the court where Criminal
Case No. 684-M-89 was tried, to bring the TSNs of the
testimonies of respondent Calaunan, Marcelo Mendoza
6 and Fernando Ramos in said case, together with other
documentary evidence marked therein. Instead of the
Branch Clerk of Court, it was Enrique Santos Guevara,
Court Interpreter, who appeared before the court and
identified the TSNs of the three afore-named witnesses
18
and other pertinent documents he had brought. 8
Counsel for respondent wanted to mark other TSNs
and documents from the said criminal case to be
adopted in the instant case, but since the same were not
brought to the trial court, counsel for petitioners
compromised that said TSNs and documents could be
offered by counsel for respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus
conductor Oscar Buan testified. The TSN of the
testimony of Donato Ganiban, investigator of the
PRBLI, in Criminal Case No. 684-M-89 was marked and
allowed to be adopted in the civil case on the ground
that he was already dead.
Respondent further marked, among other documents,
as rebuttal evidence, the TSNs of the testimonies of
Donato Ganiban, Oscar Buan and petitioner Manliclic
in Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to be
held liable for the collision?
Respondent insists it was petitioner Manliclic who
should be liable while the latter is resolute in saying it
was the former who caused the smash up.
The versions of the parties are summarized by the trial
court as follows:
The parties differed only on the manner the collision
between the two (2) vehicles took place. According to
the plaintiff and his driver, the jeep was cruising at the
speed of 60 to 70 kilometers per hour on the slow lane
of the expressway when the Philippine Rabbit Bus
overtook the jeep and in the process of overtaking the
jeep, the Philippine Rabbit Bus hit the rear of the jeep
on the left side. At the time the Philippine Rabbit Bus
hit the jeep, it was about to overtake the jeep. In other
words, the Philippine Rabbit Bus was still at the back of
the jeep when the jeep was hit. Fernando Ramos
corroborated the testimony of the plaintiff and Marcelo
Mendoza. He said that he was on another jeep
following the Philippine Rabbit Bus and the jeep of
plaintiff when the incident took place. He said, the jeep
of the plaintiff overtook them and the said jeep of the
plaintiff was followed by the Philippine Rabbit Bus
which was running very fast. The bus also overtook the
jeep in which he was riding. After that, he heard a loud
sound. He saw the jeep of the plaintiff swerved to the
right on a grassy portion of the road. The Philippine
Rabbit Bus stopped and they overtook the Philippine
Rabbit Bus so that it could not moved (sic), meaning
they stopped in front of the Philippine Rabbit Bus. He
testified that the jeep of plaintiff swerved to the right
because it was bumped by the Philippine Rabbit bus
from behind.
Both Mauricio Manliclic and his driver, Oscar Buan
admitted that the Philippine Rabbit Bus bumped the
jeep in question. However, they explained that when
the Philippine Rabbit bus was about to go to the left
lane to overtake the jeep, the latter jeep swerved to the
19
left because it was to overtake another jeep in front of it.
Such was their testimony before the RTC in Malolos in
the criminal case and before this Court in the instant
case. [Thus, which of the two versions of the manner
how the collision took place was correct, would be
determinative of who between the two drivers was
negligent in the operation of their respective vehicles.]
Petitioner PRBLI maintained that it observed and
exercised the diligence of a good father of a family in
the selection and supervision of its employee,
specifically petitioner Manliclic.
On 22 July 1996, the trial court rendered its decision in
favor of respondent Calaunan and against petitioners
Manliclic and PRBLI. The dispositive portion of its
decision reads:
WHEREFORE, judgment is rendered in favor of the
plaintiff and against the defendants ordering the said
defendants to pay plaintiff jointly and solidarily the
amount of P40,838.00 as actual damages for the towing
as well as the repair and the materials used for the
repair of the jeep in question; P100,000.00 as moral
damages and another P100,000.00 as exemplary
damages and P15,000.00 as attorney's fees, including
appearance fees of the lawyer. In addition, the
defendants are also to pay costs.
Petitioners appealed the decision via Notice of Appeal
to the Court of Appeals.
In a decision dated 28 September 2001, the Court of
Appeals, finding no reversible error in the decision of
the trial court, affirmed it in all respects.
Petitioners are now before us by way of petition for
review assailing the decision of the Court of Appeals.
They assign as errors the following:
xxx xxx xxx
With the passing away of respondent Calaunan during
the pendency of this appeal with this Court, we granted
the Motion for the Substitution of Respondent filed by
his wife, Mrs. Precila Zarate Vda. de Calaunan, and
children, Virgilio Calaunan, Carmelita Honeycomb,
Evelyn Calaunan, Marko Calaunan and Liwayway
Calaunan.
In their Reply to respondent's Comment, petitioners
informed this Court of a Decision of the Court of
Appeals acquitting petitioner Manliclic of the charge of
Reckless Imprudence Resulting in Damage to Property
with Physical Injuries attaching thereto a photocopy
thereof.
xxx xxx xxx
On the second assigned error, petitioners contend that
the version of petitioner Manliclic as to how the
accident occurred is more credible than respondent's
version. They anchor their contention on the fact that
petitioner Manliclic was acquitted by the Court of
Appeals of the charge of Reckless Imprudence
Resulting in Damage to Property with Physical Injuries.
To be resolved by the Court is the effect of petitioner
Manliclic's acquittal in the civil case.
From the complaint, it can be gathered that the civil
case for damages was one arising from, or based on,
quasi-delict. Petitioner Manliclic was sued for his
negligence or reckless imprudence in causing the
collision, while petitioner PRBLI was sued for its failure
to exercise the diligence of a good father in the selection
and supervision of its employees, particularly
petitioner Manliclic. The allegations read:
"4. That sometime on July 12, 1988
at around 6:20 A.M. plaintiff was on
board the above-described motor
vehicle travelling at a moderate speed
along the North Luzon Expressway
heading South towards Manila
together with MARCELO
MENDOZA, who was then driving
the same;
"5. That approximately at kilometer
40 of the North Luzon Express Way,
the above-described motor vehicle
was suddenly bumped from behind
by a Philippine Rabbit Bus with Body
No. 353 and with plate No. CVD 478
then being driven by one Mauricio
Manliclic of San Jose, Concepcion,
Tarlac, who was then travelling
recklessly at a very fast speed and
had apparently lost control of his
vehicle;
"6. That as a result of the impact of
the collision the above-described
motor vehicle was forced off the
North Luzon Express Way towards
the rightside where it fell on its
driver's side on a ditch, and that as a
consequence, the above-described
motor vehicle which may be valued
at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck
as shown by pictures to be presented
during the pre-trial and trial of this
case;
"7. That also as a result of said
incident, plaintiff sustained bodily
injuries which compounded
plaintiff's frail physical condition and
required his hospitalization from July
12, 1988 up to and until July 22, 1988,
copy of the medical certificate is
hereto attached as Annex "A" and
made an integral part hereof;
"8. That the vehicular collision
resulting in the total wreckage of the
above-described motor vehicle as
well as bodily (sic) sustained by
plaintiff, was solely due to the
reckless imprudence of the defendant
driver Mauricio Manliclic who drove
his Philippine Rabbit Bus No. 353 at a
fast speed without due regard or
observance of existing traffic rules
and regulations;
"9. That defendant Philippine Rabbit
Bus Line Corporation failed to
exercise the diligence of a good father
of (sic) family in the selection and
supervision of its drivers; . . ."
Can Manliclic still be held liable for the collision and be
found negligent notwithstanding the declaration of the
Court of Appeals that there was an absence of
negligence on his part?
In exonerating petitioner Manliclic in the criminal case,
the Court of Appeals said:
“To the following findings of the
court a quo, to wit: that accused-
appellant was negligent "when the
bus he was driving bumped the jeep
from behind"; that "the proximate
cause of the accident was his having
driven the bus at a great speed while
closely following the jeep"; . . .
We do not agree.
The swerving of Calaunan's jeep
when it tried to overtake the vehicle
in front of it was beyond the control
of accused-appellant. ECDaAc
xxx xxx xxx
Absent evidence of negligence,
therefore, accused-appellant cannot
be held liable for Reckless
Imprudence Resulting in Damage to
Property with Physical Injuries as
defined in Article 365 of the Revised
Penal Code.”
From the foregoing declaration of the Court of Appeals,
it appears that petitioner Manliclic was acquitted not on
reasonable doubt, but on the ground that he is not the
author of the act complained of which is based on
Section 2 (b) of Rule 111 of the Rules of Criminal
Procedure which reads:
20
 “(b) Extinction of the penal
action does not carry with it
extinction of the civil, unless the
extinction proceeds from a respondent's. Petitioners insist that while the PRBLI bus
declaration in a final judgment that
the fact from which the civil might
arise did not exist.”
In spite of said ruling, petitioner Manliclic can still be
held liable for the mishap. The afore-quoted section
applies only to a civil action arising from crime or ex
delicto and not to a civil action arising from quasi-delict
or culpa aquiliana. The extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111 [now
Section 2 (b) of Rule 111], refers exclusively to civil
liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or
has not been committed by the accused.
A quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and
independent from a delict or crime — a distinction
exists between the civil liability arising from a crime
and the responsibility for quasi-delicts or culpa extra
contractual. The same negligence causing damages may
produce civil liability arising from a crime under the
Penal Code, or create an action for quasi-delicts or culpa
extra contractual under the Civil Code. It is now settled
that acquittal of the accused, even if based on a finding
that he is not guilty, does not carry with it the
extinction of the civil liability based on quasi delict.
In other words, if an accused is acquitted based on
reasonable doubt on his guilt, his civil liability arising
from the crime may be proved by preponderance of
evidence only. However, if an accused is acquitted on
the basis that he was not the author of the act or
omission complained of (or that there is declaration in a
final judgment that the fact from which the civil might
arise did not exist), said acquittal closes the door to civil
liability based on the crime or ex delicto. In this second
instance, there being no crime or delict to speak of, civil
liability based thereon or ex delicto is not possible. In
this case, a civil action, if any, may be instituted on
grounds other than the delict complained of.
As regards civil liability arising from quasi-delict or
culpa aquiliana, same will not be extinguished by an
acquittal, whether it be on ground of reasonable doubt
or that accused was not the author of the act or
omission complained of (or that there is declaration in a
final judgment that the fact from which the civil liability
might arise did not exist). The responsibility arising
from fault or negligence in a quasi-delict is entirely
separate and distinct from the civil liability arising from
negligence under the Penal Code. An acquittal or
conviction in the criminal case is entirely irrelevant in
the civil case based on quasi-delict or culpa aquiliana.
21
Petitioners ask us to give credence to their version of
how the collision occurred and to disregard that of
was in the process of overtaking respondent's jeep, the
latter, without warning, suddenly swerved to the left
(fast) lane in order to overtake another jeep ahead of it,
thus causing the collision.
xxx xxx xxx
After going over the evidence on record, we do not find
any of the exceptions that would warrant our departure
from the general rule. We fully agree in the finding of
the trial court, as affirmed by the Court of Appeals, that
it was petitioner Manliclic who was negligent in driving
the PRBLI bus which was the cause of the collision. In
giving credence to the version of the respondent, the
trial court has this say:
“. . . Thus, which of the two versions
of the manner how the collision took
place was correct, would be
determinative of who between the
two drivers was negligent in the
operation of their respective vehicle.”
xxx xxx xxx
Having ruled that it was petitioner Manliclic's
negligence that caused the smash up, there arises the
juris tantum presumption that the employer is
negligent, rebuttable only by proof of observance of the
diligence of a good father of a family. Under Article
2180 42 of the New Civil Code, when an injury is
caused by the negligence of the employee, there
instantly arises a presumption of law that there was
negligence on the part of the master or employer either
in the selection of the servant or employee, or in
supervision over him after selection or both. The
liability of the employer under Article 2180 is direct and
immediate; it is not conditioned upon prior recourse
against the negligent employee and a prior showing of
the insolvency of such employee. Therefore, it is
incumbent upon the private respondents to prove that
they exercised the diligence of a good father of a family
in the selection and supervision of their employee.
In the case at bar, petitioner PRBLI maintains that it had
shown that it exercised the required diligence in the
selection and supervision of its employees, particularly
petitioner Manliclic. In the matter of selection, it
showed the screening process that petitioner Manliclic
underwent before he became a regular driver. As to the
exercise of due diligence in the supervision of its
employees, it argues that presence of ready
investigators (Ganiban and Cabading) is sufficient
proof that it exercised the required due diligence in the
supervision of its employees.
In the selection of prospective employees, employers
are required to examine them as to their qualifications,
experience and service records. In the supervision of
employees, the employer must formulate standard
operating procedures, monitor their implementation
and impose disciplinary measures for the breach
thereof. To fend off vicarious liability, employers must
submit concrete proof, including documentary
evidence, that they complied with everything that was
incumbent on them.
In Metro Manila Transit Corporation v. Court of Appeals, it
was explained that:
“Due diligence in the supervision of
employees on the other hand,
includes the formulation of suitable
rules and regulations for the
guidance of employees and the
issuance of proper instructions
intended for the protection of the
public and persons with whom the
employer has relations through his or
its employees and the imposition of
necessary disciplinary measures
upon employees in case of breach or
as may be warranted to ensure the
performance of acts indispensable to
the business of and beneficial to their
employer. To this, we add that actual
implementation and monitoring of
consistent compliance with said rules
should be the constant concern of the
employer, acting through dependable
supervisors who should regularly
report on their supervisory functions.
In order that the defense of due
diligence in the selection and
supervision of employees may be
deemed sufficient and plausible, it is
not enough to emptily invoke the
existence of said company guidelines
and policies on hiring and
supervision. As the negligence of the
employee gives rise to the
presumption of negligence on the
part of the employer, the latter has
the burden of proving that it has been
diligent not only in the selection of
employees but also in the actual
supervision of their work. The mere
allegation of the existence of hiring
procedures and supervisory policies,
without anything more, is decidedly
not sufficient to overcome such
presumption.
We emphatically reiterate our
holding, as a warning to all
employers, that "the formulation of
various company policies on safety
without showing that they were
being complied with is not sufficient
to exempt petitioner from liability
arising from negligence of its
employees. It is incumbent upon
petitioner to show that in recruiting
and employing the erring driver the
recruitment procedures and company
policies on efficiency and safety were
followed.” . . . .
The trial court found that petitioner PRBLI exercised
the diligence of a good father of a family in the selection
but not in the supervision of its employees. It
expounded as follows:
“From the evidence of the
defendants, it seems that the
Philippine Rabbit Bus Lines has a
very good procedure of recruiting its
driver as well as in the maintenance
of its vehicles. There is no evidence
though that it is as good in the
supervision of its personnel. There
has been no iota of evidence
introduced by it that there are rules
promulgated by the bus company
regarding the safe operation of its
vehicle and in the way its driver
should manage and operate the
vehicles assigned to them. There is no
showing that somebody in the bus
company has been employed to
oversee how its driver should behave
while operating their vehicles
without courting incidents similar to
the herein case. In regard to
supervision, it is not difficult to
observe that the Philippine Rabbit
Bus Lines, Inc. has been negligent as
an employer and it should be made
responsible for the acts of its
employees, particularly the driver
involved in this case.”
We agree. The presence of ready investigators after the
occurrence of the accident is not enough to exempt
petitioner PRBLI from liability arising from the
negligence of petitioner Manliclic. Same does not
comply with the guidelines set forth in the cases above-
mentioned. The presence of the investigators after the
accident is not enough supervision. Regular
supervision of employees, that is, prior to any accident,
should have been shown and established. This,
petitioner failed to do. The lack of supervision can
further be seen by the fact that there is only one set of
manual containing the rules and regulations for all the
drivers of PRBLI. How then can all the drivers of
petitioner PRBLI know and be continually informed of
the rules and regulations when only one manual is
being lent to all the drivers?
For failure to adduce proof that it exercised the
diligence of a good father of a family in the selection
22
and supervision of its employees, petitioner PRBLI is
held solidarily responsible for the damages caused by
petitioner Manliclic's negligence.
We now go to the award of damages. The trial court
correctly awarded the amount of P40,838.00 as actual
damages representing the amount paid by respondent
for the towing and repair of his jeep. As regards the
awards for moral and exemplary damages, same, under
the circumstances, must be modified. The P100,000.00
awarded by the trial court as moral damages must be
reduced to P50,000.00. Exemplary damages are
imposed by way of example or correction for the public
good. The amount awarded by the trial court must,
likewise, be lowered to P50,000.00. The award of
P15,000.00 for attorney's fees and expenses of litigation
is in order and authorized by law.
WHEREFORE, premises considered, the instant petition
for review is DENIED. The decision of the Court of
Appeals in CA-G.R. CV No. 55909 is AFFIRMED with
the MODIFICATION that (1) the award of moral
damages shall be reduced to P50,000.00; and (2) the
award of exemplary damages shall be lowered to
P50,000.00. Costs against petitioners.
SO ORDERED.
Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ.,
concur.
b. Arising from Contract
AIR FRANCE vs. CARRASCOSO, ET AL.
G.R. No. L-21438, 28 September 1966, 18 SCRA 155
SANCHEZ, J p:
The Court of First Instance of Manila sentenced
petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as
exemplary damages; P393.20 representing the
difference in fare between first class and tourist class
for the portion of the trip Bangkok-Rome, these various
amounts with interest at the legal rate, from the date of
the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.
On appeal, the Court of Appeals slightly reduced the
amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed
decision "in all other respects", with costs against
petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as "fully
supported by the evidence of record", are:
"Plaintiff, a civil engineer, was a
member of a group of 48 Filipino
23
pilgrims that left Manila for Lourdes
on March 30, 1958.
On March 28, 1958, the defendant,
Air France, through its authorized
agent, Philippine Air Lines, Inc.,
issued to plaintiff a 'first class' round
trip airplane ticket from Manila to
Rome. From Manila to Bangkok,
plaintiff traveled in 'first class', but at
Bangkok, the Manager of the
defendant airline forced plaintiff to
vacate the 'first class' seat that he was
occupying because, in the words of
the witness Ernesto G. Cuento, there
was a 'white man', who, the Manager
alleged, had a 'better right to the seat.
When asked to vacate his 'first class'
seat, the plaintiff, as was to be
expected, refused, and told
defendant's Manager that his seat
would be taken over his dead body; a
commotion ensued, and, according to
said Ernesto G. Cuento, many of the
Filipino passengers got nervous in
the tourist class; when they found out
that Mr. Carrascoso was having a hot
discussion with the white man
[manager], they came all across to
Mr. Carrascoso and pacified Mr.
Carrascoso to give his seat to the
'white man' (Transcript, p. 12,
Hearing of May 26, 1959); and
plaintiff reluctantly gave his 'first
class' seat in the plane."
xxx xxx xxx
3. Was Carrascoso entitled to the first class seat he
claims?
It is conceded in all quarters that on March 28, 1958 he
paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent
the true and complete intent and agreement of the
parties; that said respondent knew that he did not have
confirmed reservations for first class on any specific
flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that
such would depend upon the availability of first class
seats.
xxx xxx xxx
If, as petitioner underscores, a first-class-ticket holder is
not entitled to a first class seat, notwithstanding the fact
that seat availability in specific flights is therein
confirmed, then an air passenger is placed in the hollow
of the hands of an airline. What security then can a
passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a
verbal agreement to the contrary. What if the passenger
had a schedule to fulfill? We have long learned that, as
a rule, a written document speaks a uniform language;
that spoken word could be notoriously unreliable. If
only to achieve stability in the relations between
passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower
courts refused to believe the oral evidence intended to
defeat the covenants in the ticket.
The foregoing are the considerations which point to the
conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent
Carrascoso had a first class ticket and was entitled to a
first class seat at Bangkok, which is a stopover in the
Saigon to Beirut leg of the flight, We perceive no
"welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by
petitioner. Nor do we subscribe to petitioners
accusation that respondent Carrascoso "surreptitiously
took a first class seat to provoke an issue". And this
because, as petitioner states, Carrascoso went to see the
Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the
Manager. Why, then, was he allowed to take a first class
seat in the plane at Bangkok, if he had no seat? Or, if
another had a better right to the seat?
xxx xxx xxx
6. A contract to transport passengers is quite different
in kind and degree from any other contractual relation.
And this, because of the relation which an air-carrier
sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a
public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action
for damages.
Passengers do not contract merely for transportation.
They have a light to be treated by the carrier's
employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities
and abuses from such employees. So it is, that any rude
or discourteous conduct on the part of employees
towards a passenger gives the latter an action for
damages against the carrier.
Thus, "Where a steamship company had accepted a
passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of
third persons to falsely notify her that the check was
worthless and demand payment under threat of
ejection, though the language used was not insulting
and she was not ejected. And this, because, altho the
relation of passenger and carrier is "contractual both in
origin and nature" nevertheless "the act that breaks the
contract may be also a tort". And in another case,
"Where a passenger on a railroad train, when the
conductor came to collect his fare, tendered him the
cash fare to a point where the train was scheduled not
to stop, and told him that as soon as the train reached
such point he would pay the cash fare from that point
to destination, there was nothing in the conduct of the
passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic,"
and the Supreme Court of South Carolina there held the
carrier liable for the mental suffering of said passenger.
Petitioner's contract with Carrascoso is one attended
with public duty. The stress of Carrascoso's action as
we have said, is placed upon his wrongful expulsion.
This is a violation of public duty by the petitioner-air
carrier — a case of quasi-delict. Damages are proper.
xxx xxx xxx
8. Exemplary damages are well awarded. The Civil
Code gives the Court ample power to grant exemplary
damages — in contracts and quasi-contracts. The only
condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent
manner". The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal
precept. And this, in addition to moral damages.
9. The right to attorneys' fees is fully established.
The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said
is that the courts below felt that it is but just and
equitable that attorneys' fees be given. We do not
intend to break faith with the tradition that discretion
well exercised — as it was here —should not be
disturbed.
10. Questioned as excessive are the amounts
decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages;
P10,000.00, by way of exemplary damages, and
P3,000.00 as attorney's fees. The task of fixing these
amounts is primarily with the trial-court. The Court of
Appeals did not interfere with the same. The dictates of
good sense suggest that we give our imprimatur
thereto. Because, the facts and circumstances point to
the reasonableness thereof.
On balance, we say that the judgment of the Court of
Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against
petitioner. So ordered.
Concepcion, C.J., Reyes J.B.L., Barrera, Dizon, Regala,
Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., did not take part.
LIGHT RAIL TRANSIT AUTHORITY, ET AL.
vs. NAVIDAD
G.R. No. 145804, 6 February 2003, 397 SCRA 75
VITUG, J p:
24

The case before the Court is an appeal from the decision
and resolution of the Court of Appeals, promulgated on
27 April 2000 and 10 October 2000, respectively, in CA-
G.R. CV No. 60720, entitled "Marjorie Navidad and
Heirs of the Late Nicanor Navidad vs. Rodolfo Roman,
et al.," which has modified the decision of 11 August
1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from
liability and finding Light Rail Transit Authority
(LRTA) and Rodolfo Roman liable for damages on
account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven
o'clock in the evening, Nicanor Navidad, then drunk,
entered the EDSA LRT station after purchasing a
"token" (representing payment of the fare). While
Navidad was standing on the platform near the LRT
tracks, Junelito Escartin, the security guard assigned to
the area approached Navidad. A misunderstanding or
an altercation between the two apparently ensued that
led to a fist fight. No evidence, however, was adduced
to indicate how the fight started or who, between the
two, delivered the first blow or how Navidad later fell
on the LRT tracks. At the exact moment that Navidad
fell, an LRT train, operated by petitioner Rodolfo
Roman, was coming in. Navidad was struck by the
moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein
respondent Marjorie Navidad, along with her children,
filed a complaint for damages against Junelito Escartin,
Rodolfo Roman, the LRTA, the Metro Transit
Organization, Inc. (Metro Transit), and Prudent for the
death of her husband. LRTA and Roman filed a
counterclaim against Navidad and a cross-claim against
Escartin and Prudent. Prudent, in its answer, denied
liability and averred that it had exercised due diligence
in the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while
Prudent and Escartin, instead of presenting evidence,
filed a demurrer contending that Navidad had failed to
prove that Escartin was negligent in his assigned task.
On 11 August 1998, the trial court rendered its decision;
it adjudged:
"WHEREFORE, judgment is hereby
rendered in favor of the plaintiffs and
against the defendants Prudent
Security and Junelito Escartin
ordering the latter to pay jointly and
severally the plaintiffs the following:
xxx xxx xxx
"The complaint against defendants
LRTA and Rodolfo Roman are
dismissed for lack of merit.
25
"The compulsory counterclaim of
LRTA and Roman are likewise
dismissed."
Prudent appealed to the Court of Appeals. On 27
August 2000, the appellate court promulgated its now
assailed decision exonerating Prudent from any liability
for the death of Nicanor Navidad and, instead, holding
the LRTA and Roman jointly and severally liable
thusly:
xxx xxx xxx
The appellate court ratiocinated that while the deceased
might not have then as yet boarded the train, a contract
of carriage theretofore had already existed when the
victim entered the place where passengers were
supposed to be after paying the fare and getting the
corresponding token therefor. In exempting Prudent
from liability, the court stressed that there was nothing
to link the security agency to the death of Navidad. It
said that Navidad failed to show that Escartin inflicted
fist blows upon the victim and the evidence merely
established the fact of death of Navidad by reason of
his having been hit by the train owned and managed by
the LRTA and operated at the time by Roman. The
appellate court faulted petitioners for their failure to
present expert evidence to establish the fact that the
application of emergency brakes could not have
stopped the train.
xxx xxx xxx
Petitioners would contend that the appellate court
ignored the evidence and the factual findings of the
trial court by holding them liable on the basis of a
sweeping conclusion that the presumption of
negligence on the part of a common carrier was not
overcome. Petitioners would insist that Escartin's
assault upon Navidad, which caused the latter to fall on
the tracks, was an act of a stranger that could not have
been foreseen or prevented. The LRTA would add that
the appellate court's conclusion on the existence of an
employer-employee relationship between Roman and
LRTA lacked basis because Roman himself had testified
being an employee of Metro Transit and not of the
LRTA.
Respondents, supporting the decision of the appellate
court, contended that a contract of carriage was deemed
created from the moment Navidad paid the fare at the
LRT station and entered the premises of the latter,
entitling Navidad to all the rights and protection under
a contractual relation, and that the appellate court had
correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence
imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier,
both from the nature of its business and for reasons of
public policy, is burdened with the duty of exercising
utmost diligence in ensuring the safety of passengers.
The Civil Code, governing the liability of a common
carrier for death of or injury to its passengers, provides:
"Article 1755. A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with a due regard for all the
circumstances.
"Article 1756. In case of death of
or injuries to passengers, common
carriers are presumed to have been at
fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed
in Articles 1733 and 1755."
"Article 1759. Common carriers
are liable for the death of or injuries
to passengers through the negligence
or willful acts of the former's
employees, although such employees
may have acted beyond the scope of
their authority or in violation of the
orders of the common carriers.
"This liability of the common carriers
does not cease upon proof that they
exercised all the diligence of a good
father of a family in the selection and
supervision of their employees."
"Article 1763. A common carrier
is responsible for injuries suffered by
a passenger on account of the willful
acts or negligence of other passengers
or of strangers, if the common
carrier's employees through the
exercise of the diligence of a good
father of a family could have
prevented or stopped the act or
omission."
The law requires common carriers to carry passengers
safely using the utmost diligence of very cautious
persons with due regard for all circumstances. Such
duty of a common carrier to provide safety to its
passengers so obligates it not only during the course of
the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to
the contract of carriage. The statutory provisions render
a common carrier liable for death of or injury to
passengers (a) through the negligence or willful acts of
its employees or b) on account of willful acts or
negligence of other passengers or of strangers if the
common carrier's employees through the exercise of
due diligence could have prevented or stopped the act
or omission. In case of such death or injury, a carrier is
presumed to have been at fault or been negligent, and
by simple proof of injury, the passenger is relieved of
the duty to still establish the fault or negligence of the
carrier or of its employees and the burden shifts upon
the carrier to prove that the injury is due to an
unforeseen event or to force majeure. In the absence of
satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the
appellate court, have failed to show, the presumption
would be that it has been at fault, an exception from the
general rule that negligence must be proved.
The foundation of LRTA's liability is the contract of
carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its
failure to exercise the high diligence required of the
common carrier. In the discharge of its commitment to
ensure the safety of passengers, a carrier may choose to
hire its own employees or avail itself of the services of
an outsider or an independent firm to undertake the
task. In either case, the common carrier is not relieved
of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that
liability could only be for tort under the provisions of
Article 2176 and related provisions, in conjunction with
Article 2180, of the Civil Code. The premise, however,
for the employer's liability is negligence or fault on the
part of the employee. Once such fault is established, the
employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to
exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary
and can only be negated by showing due diligence in
the selection and supervision of the employee, a factual
matter that has not been shown. Absent such a
showing, one might ask further, how then must the
liability of the common carrier, on the one hand, and an
independent contractor, on the other hand, be
described? It would be solidary. A contractual
obligation can be breached by tort and when the same
act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article 2194
of the Civil Code can well apply. In fine, a liability for
tort may arise even under a contract, where tort is that
which breaches the contract. Stated differently, when
an act which constitutes a breach of contract would
have itself constituted the source of a quasi-delictual
liability had no contract existed between the parties, the
contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.
Regrettably for LRT, as well as perhaps the surviving
spouse and heirs of the late Nicanor Navidad, this
Court is concluded by the factual finding of the Court
of Appeals that "there is nothing to link (Prudent) to the
death of Nicanor (Navidad), for the reason that the
negligence of its employee, Escartin, has not been duly
proven . . . ." This finding of the appellate court is not
without substantial justification in our own review of
the records of the case.
There being, similarly, no showing that petitioner
Rodolfo Roman himself is guilty of any culpable act or
26
omission, he must also be absolved from liability.
Needless to say, the contractual tie between the LRT
and Navidad is not itself a juridical relation between
the latter and Roman; thus, Roman can be made liable
only for his own fault or negligence.
The award of nominal damages in addition to actual
damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.
It is an established rule that nominal damages cannot
co-exist with compensatory damages.
WHEREFORE, the assailed decision of the appellate
court is AFFIRMED with MODIFICATION but only in
that (a) the award of nominal damages is DELETED
and (b) petitioner Rodolfo Roman is absolved from
liability. No costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna,
JJ., concur.
FAR EAST BANK AND TRUST COMPANY vs.
COURT OF APPEALS, ET AL.
G.R. No. 108164, 23 February 1995, 241 SCRA 671
VITUG, J p:
Some time in October 1986, private respondent Luis A.
Luna applied for, and was accorded, a FAREASTCARD
issued by petitioner Far East Bank and Trust Company
("FEBTC") at its Pasig Branch. Upon his request, the
bank also issued a supplemental card to private
respondent Clarita S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was
forthwith informed. In order to replace the lost card,
Clarita submitted an affidavit of loss. In cases of this
nature, the bank’s internal security procedures and
policy would appear to be to meanwhile so record the
lost card, along with the principal card, as a "Hot Card"
or "Cancelled Card" in its master file.
On 06 October 1988, Luis tendered a despedida lunch
for a close friend, a Filipino-American, and another
guest at the Bahia Rooftop Restaurant of the Hotel
Intercontinental Manila. To pay for the lunch, Luis
presented his FAREASTCARD to the attending waiter
who promptly had it verified through a telephone call
to the bank's Credit Card Department. Since the card
was not honored, Luis was forced to pay in cash the bill
amounting to P588.13. Naturally, Luis felt embarrassed
by this incident.
In a letter, dated 11 October 1988, private respondent
Luis Luna, through counsel, demanded from FEBTC
the payment of damages. Adrian V. Festejo, a vice-
president of the bank, expressed the bank's apologies to
27
Luis. In his letter, dated 03 November 1988, Festejo, in
part, said:
"In cases when a card is reported to
our office as lost, FAREASTCARD
undertakes the necessary action to
avert its unauthorized use (such as
tagging the card as hotlisted), as it is
always our intention to protect our
cardholders.
"An investigation of your case
however, revealed that
FAREASTCARD failed to inform you
about its security policy.
Furthermore, an overzealous
employee of the Bank's Credit Card
Department did not consider the
possibility that it may have been you
who was presenting the card at that
time (for which reason, the
unfortunate incident occurred)."
Festejo also sent a letter to the Manager of the Bahia
Rooftop Restaurant to assure the latter that private
respondents were "very valued clients" of FEBTC.
William Anthony King, Food and Beverage Manager of
the Intercontinental Hotel, wrote back to say that the
credibility of private respondent had never been "in
question." A copy of this reply was sent to Luis by
Festejo.
Still evidently feeling aggrieved, private respondents,
on 05 December 1988, filed a complaint for damages
with the Regional Trial Court ("RTC") of Pasig against
FEBTC.
On 30 March 1990, the RTC of Pasig, given the
foregoing factual settings, rendered a decision ordering
FEBTC to pay private respondents (a) P300,000.00
moral damages; (b) P50,000.00 exemplary damages; and
(c) P20,000.00 attorney's fees.
On appeal to the Court of Appeals, the appellate court
affirmed the decision of the trial court.
Its motion for reconsideration having been denied by
the appellate court, FEBTC has come to this Court with
this petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered
where the defendant is shown to have acted in bad faith
or with malice in the breach of the contract. The Civil
Code provides:
"Art. 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 that we should give to Article 2220 in contractual
breaches of contract where the defendant relations; we quote:
acted fraudulently or in bad faith."
(Emphasis supplied) "Anent the moral damages ordered to
be paid to the respondent, the same
Bad faith, in this context, includes gross, but not simple, must be discarded. We have
negligence. Exceptionally, in a contract of carriage, repeatedly ruled (Cachero vs. Manila
moral damages are also allowed in case of death of a Yellow Taxicab Co. Inc., 101 Phil. 523;
passenger attributable to the fault (which is presumed 4 54 Off. Gaz., [26], 6599; Necesito, et al.
) of the common carrier. vs. Paras, 104 Phil., 75; 56 Off. Gaz.,
[23] 4023, that moral damages are not
Concededly, the bank was remiss in indeed neglecting recoverable in damage actions
to personally inform Luis of his own card’s predicated on a breach of the contract
cancellation. Nothing in the findings of the trial court of transportation, in view of Articles
and the appellate court, however, can sufficiently 2219 and 2220 of the new Civil Code,
indicate any deliberate intent on the part of FEBTC to which provide as follows:
cause harm to private respondents. Neither could
FEBTC's negligence in failing to give personal notice to "'ART. 2219. Moral damages
Luis be considered so gross as to amount to malice or may be recovered in the
bad faith. following and analogous cases:
'(1) A criminal offense
Malice or bad faith implies a conscious and intentional resulting in physical injuries;
design to do a wrongful act for a dishonest purpose or '(2) Quasi-delicts causing
moral obliquity; it is different from the negative idea of physical injuries;
negligence in that malice or bad faith contemplates a
state of mind affirmatively operating with furtive xxx xxx xxx
design or ill will.
'ART. 2220. Willful injury
We are not unaware of the previous rulings of this to property may be a legal
Court, such as in American Express International, Inc. ground for awarding moral
vs. Intermediate Appellate Court (167 SCRA 209) and damages if the court should
Bank of Philippine Islands vs. Intermediate Appellate find that, under the
Court (206 SCRA 408), sanctioning the application of circumstances, such damages
Article 21, in relation to Article 2217 and Article 2219 of are justly due. The same rule
the Civil Code to a contractual breach similar to the applies to breaches of contract
case at bench. Article 21 states: where the defendant acted
fraudulently or in bad faith.'
"Art. 21. Any person who willfully
causes loss or injury to another in a "By contrasting the provisions of
manner that is contrary to morals, these two articles it immediately
good customs or public policy shall becomes apparent that:
compensate the latter for the
damage." "(a) In case of breach of contract
(including one of transportation)
Article 21 of the Code, it should be observed, proof of bad faith or fraud (dolus),
contemplates a conscious act to cause harm. Thus, even i.e., wanton or deliberately injurious
if we are to assume that the provision could properly conduct, is essential to justify an
relate to a breach of contract, its application can be award of moral damages; and
warranted only when the defendant's disregard of his
contractual obligation is so deliberate as to approximate "(b) That a breach of contract can
a degree of misconduct certainly no less worse than not be considered included in the
fraud or bad faith. Most importantly, Article 21 is a descriptive term 'analogous cases'
mere declaration of a general principle in human used in Art. 2219; not only because
relations that clearly must, in any case, give way to the Art. 2220 specifically provides for the
specific provision of Article 2220 of the Civil Code damages that are caused contractual
authorizing the grant of moral damages in culpa breach, but because the definition of
contractual solely when the breach is due to fraud or quasi-delict in Art. 2176 of the Code
bad faith. expressly excludes the cases where
there is a 'pre-exisiting contractual
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. relations between the parties.'
Miranda explained with great clarity the predominance

28
 "'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.'
"The exception to the basic rule of
damages now under consideration is
a mishap resulting in the death of a
passenger, in which case Article 1764
makes the common carrier expressly
subject to the rule of Art. 2206, that
entitles the spouse, descendants and
ascendants of the deceased passenger
to 'demand moral damages for
mental anguish by reason of the
death of the deceased' (Necesito vs.
Paras, 104 Phil. 84, Resolution on
Motion to Reconsider, September 11,
1958). But the exceptional rule of Art.
1764 makes it all the more evident
that where the injured passenger
does not die, moral damages are not
recoverable unless it is proved that
the carrier was guilty of malice or bad
faith. We think it is clear that the
mere carelessness of the carrier's
driver does not per se constitute or
justify an inference of malice or bad
faith on the part of the carrier; and in
the case at bar there is no other
evidence of such malice to support
the award of moral damages by the
Court of Appeals. To award moral
damages for breach of contract,
therefore, without proof of bad faith
or malice on the part of the
defendant, as required by Art. 2220,
would be to violate the clear
provisions of the law, and constitute
unwarranted judicial legislation.
"xxx xxx xxx.
"The distinction between fraud, bad
faith or malice in the sense of
deliberate or wanton wrong doing
and negligence (as mere carelessness)
is too fundamental in our law to be
ignored (Arts. 1170-1172); their
consequences being clearly
differentiated by the Code. cdasia
"'ART. 2201. In contracts and
quasi-contracts, the damages
for which the obligor who
29
acted in good faith is liable
shall be those that are the
natural and probable
consequences of the breach of
the obligation, and which the
parties have foreseen or could
have reasonably foreseen at the
time the obligation was
constituted.
'In case of fraud, bad faith,
malice or wanton attitude, the
obligor shall be responsible for
all damages which may be
reasonably attributed to the
non-performance of the
obligation."
"It is to be presumed, in the absence
of statutory provision to the contrary,
that this difference was in the mind of
the lawmakers when in Art. 2220 they
limited recovery of moral damages to
breaches of contract in bad faith. It is
true that negligence may be
occasionally so gross as to amount to
malice; but the fact must be shown in
evidence, and a carrier's bad faith is
not to be lightly inferred from a mere
finding that the contract was
breached through negligence of the
carrier’s employees."
The Court has not in the process overlooked another
rule that a quasi-delict can be the cause for breaching a
contract that might thereby permit the application of
applicable principles on tort even where there is a pre-
existing contract between the plaintiff and the
defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA
143; Singson vs. Bank of Phil. Islands, 23 SCRA 1117; and
Air France vs. Carrascoso, 18 SCRA 155). This doctrine,
unfortunately, cannot improve private respondents'
case for it can aptly govern only where the act or
omission complained of would constitute an actionable
tort independently of the contract. The test (whether a
quasi-delict can be deemed to underlie the breach of a
contract) can be stated thusly: Where, without a pre-
existing contract between two parties, an act or
omission can nonetheless amount to an actionable tort
by itself, the fact that the parties are contractually
bound is no bar to the application of quasi-delict
provisions to the case. Here, private respondents'
damage claim is predicated solely on their contractual
relationship; without such agreement, the act or
omission complained of cannot by itself be held to
stand as a separate cause of action or as an independent
actionable tort.
The Court finds, therefore, the award of moral damages
made by the court a quo, affirmed by the appellate
court, to be inordinate and substantially devoid of legal
basis.

xxx xxx xxx
WHEREFORE, the petition for review is given due
course. The appealed decision is MODIFIED by
deleting the award of moral and exemplary damages to
private respondents; in its stead, petitioner is ordered to
pay private respondent Luis A. Luna an amount of
P5,000.00 by way of nominal damages. In all other
respects, the appealed decision is AFFIRMED. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado,
Davide, Jr ., Romero, Bellosillo, Melo, Quiason, Puno,
Kapunan, Mendoza and Francisco, JJ., concur.
c. Arising from Tort
ANDAMO, ET AL. vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 74761, 6 November 1990, 191 SCRA 195
FERNAN, C.J p:
The pivotal issue in this petition for certiorari,
prohibition and mandamus is whether a corporation,
which has built through its agents, waterpaths, water
conductors and contrivances within its land, thereby
causing inundation and damage to an adjacent land,
can be held civilly liable for damages under Articles
2176 and 2177 of the Civil Code on quasi-delicts such
that the resulting civil case can proceed independently
of the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo
are the owners of a parcel of land situated in Biga
(Biluso) Silang, Cavite which is adjacent to that of
private respondent, Missionaries of Our Lady of La
Salette, Inc., a religious corporation.
Within the land of respondent corporation, waterpaths
and contrivances, including an artificial lake, were
constructed, which allegedly inundated and eroded
petitioners' land, caused a young man to drown,
damaged petitioners' crops and plants, washed away
costly fences, endangered the lives of petitioners and
their laborers during rainy and stormy seasons, and
exposed plants and other improvements to destruction.
In July 1982, petitioners instituted a criminal action,
docketed as Criminal Case No. TG 907-82, before the
Regional Trial Court of Cavite, Branch 4 (Tagaytay
City), against Efren Musngi, Orlando Sapuay and
Rutillo Mallillin, officers and directors of herein
respondent corporation, for destruction by means of
injunction under Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed
another action against respondent corporation, this
time a civil case, docketed as Civil Case No. TG-748, for
damages with prayer for the issuance of a writ of
preliminary injunction before the same court.
xxx xxx xxx
Directly at issue is the propriety of the dismissal of
Civil Case: No. TG-748 in accordance with Section 3 (a)
of Rule 111 of the Rules of Court. Petitioners contend
that the trial court and the Appellate Court erred in
dismissing Civil Case No. TG-748 since it is predicated
on a quasi-delict. Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court
is determined by the facts alleged in the complaint as
constituting the cause of action. 7 The purpose of an
action or suit and the law to govern it, including the
period of prescription, is to be determined not by the
claim of the party filing the action, made in his
argument or brief, but rather by the complaint itself, its
allegations and prayer for relief. 8 The nature of an
action is not necessarily determined or controlled by its
title or heading but by the body of the pleading or
complaint itself. To avoid possible denial of substantial
justice due to legal technicalities, pleadings as well as
remedial laws should be liberally construed so that the
litigants may have ample opportunity to prove their
respective claims.
Quoted hereunder are the pertinent portions of
petitioners' complaint in Civil Case No. TG-748:
“4) That within defendant's land,
likewise located at Biga (Biluso),
Silang, Cavite, adjacent on the right
side of the aforesaid land of plaintiffs,
defendant constructed waterpaths
starting from the middle-right
portion thereof leading to a big hole
or opening, also constructed by
defendant, thru the lower portion of
its concrete hollow-blocks fence
situated on the right side of its
cemented gate fronting the provincial
highway, and connected by
defendant to a man-height inter-
connected cement culverts which
were also constructed and lain by
defendant cross-wise beneath the tip
of the said cemented gate, the left-
end of the said inter-connected
culverts again connected by
defendant to a big hole or opening
thru the lower portion of the same
concrete hollow-blocks fence on the
left side of the said cemented gate,
which hole or opening is likewise
connected by defendant to the
cemented mouth of a big canal, also
constructed by defendant, which runs
30
 northward towards a big hole or
opening which was also built by
defendant thru the lower portion of
its concrete hollow-blocks fence
which separates the land of plaintiffs
from that of defendant (and which
serves as the exit-point of the
floodwater coming from the land of
defendant, and at the same time, the
entrance-point of the same
floodwater to the land of plaintiffs,
year after year, during rainy or
stormy seasons.
"5) That moreover, on the middle-
left portion of its land just beside the
land of plaintiffs, defendant also
constructed an artificial lake, the base
of which is soil, which utilizes the
water being channeled thereto from
its water system thru inter-connected
galvanized iron pipes (No. 2) and
complimented by rain water during
rainy or stormy seasons, so much so
that the water below it seeps into,
and the excess water above it
inundates, portions of the adjoining
land of plaintiffs.
"6) That as a result of the inundation
brought about by defendant's
aforementioned water conductors,
contrivances and manipulators, a
young man was drowned to death,
while herein plaintiffs suffered and
will continue to suffer, as follows:
"a) Portions of the land of
plaintiffs were eroded
and converted to deep,
wide and long canals,
such that the same can no
longer be planted to any
crop or plant.
"b) Costly fences constructed
by plaintiffs were, on
several occasions, washed
away.
"c) during rainy and stormy
seasons the lives of
plaintiffs and their
laborers are always in
danger.
"d) Plants and other
improvements on other
portions of the land of
plaintiffs are exposed to
destruction. . . ."
31
A careful examination of the aforequoted complaint
shows that the civil action is one under Articles 2176
and 2177 of the Civil Code on quasi-delicts. All the
elements of a quasi-delict are present, to wit: (a)
damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff.
Clearly, from petitioners' complaint, the waterpaths
and contrivances built by respondent corporation are
alleged to have inundated the land of petitioners. There
is therefore, an assertion of a causal connection between
the act of building these waterpaths and the damage
sustained by petitioners. Such action if proven
constitutes fault or negligence which may be the basis
for the recovery of damages.
In the case of Samson vs. Dionisio, the Court applied
Article 1902, now Article 2176 of the Civil Code and
held that "any person who without due authority
constructs a bank or dike, stopping the flow or
communication between a creek or a lake and a river,
thereby causing loss and damages to a third party who,
like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the
payment of an indemnity for loss and damages to the
injured party."
While the property involved in the cited case belonged
to the public domain and the property subject of the
instant case is privately owned, the fact remains that
petitioners' complaint sufficiently alleges that
petitioners have sustained and will continue to sustain
damage due to the waterpaths and contrivances built
by respondent corporation. Indeed, the recitals of the
complaint, the alleged presence of damage to the
petitioners, the act or omission of respondent
corporation supposedly constituting fault or
negligence, and the causal connection between the act
and the damage, with no pre-existing contractual
obligation between the parties make a clear case of a
quasi-delict or culpa aquiliana.
It must be stressed that the use of one's property is not
without limitations. Article 431 of the Civil Code
provides that "the owner of a thing cannot make use
thereof in such a manner as to injure the rights of a
third person." SIC UTERE TUO UT ALIENUM NON
LAEDAS. Moreover, adjoining landowners have
mutual and reciprocal duties which require that each
must use his own land in a reasonable manner so as not
to infringe upon the rights and interests of others.
Although we recognize the right of an owner to build
structures on his land, such structures must be so
constructed and maintained using all reasonable care so
that they cannot be dangerous to adjoining landowners
and can withstand the usual and expected forces of
nature. If the structures cause injury or damage to an
adjoining landowner or a third person, the latter can
claim indemnification for the injury or damage
suffered.
Article 2176 of the Civil Code imposes a civil liability
on a person for damage caused by his act or omission
constituting fault or negligence, thus:
"Article 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 is governed by the provisions of
this chapter."
Article 2176, whenever it refers to "fault or negligence",
covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil
action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is
not allowed, (if the tortfeasor is actually charged also
criminally), to recover damages on both scores, and
would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the
two cases vary.
The distinctness of quasi-delicts is shown in Article 2177
of the Civil Code, which states:
"Article 2177. Responsibility for
fault or negligence under the
preceding article is entirely separate
and distinct from the civil liability
arising from negligence under the
Penal Code. But the plaintiff cannot
recover damages twice for the same
act or omission of the defendant."
According to the Report of the Code Commission "the
foregoing provision though at first sight startling, is not
so novel or extraordinary when we consider the exact
nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a
distinct and independent negligence, which is a "culpa
aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality,
separate from criminal negligence. Such distinction
between criminal negligence and "culpa extra
contractual" or "cuasi-delito" has been sustained by
decisions of the Supreme Court of Spain . . ."
In the case of Castillo vs. Court of Appeals, this Court held
that a quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and
independent from a delict or crime — a distinction
exists between the civil liability arising from a crime
and the responsibility for quasi-delicts or culpa extra
contractual. The same negligence causing damages may
produce civil liability arising from a crime under the
Penal Code, or create an action for quasi-delicts or culpa
extra contractual under the Civil Code. Therefore, the
acquittal or conviction in the criminal case is entirely
irrelevant in the civil case, unless, of course, in the
event of an acquittal where the court has declared that
the fact from which the civil action arose did not exist,
in which case the extinction of the criminal liability
would carry with it the extinction of the civil liability.
In Azucena vs. Potenciano, the Court declared that in
quasi-delicts, "(t)he civil action is entirely independent of
the criminal case according to Articles 33 and 2177 of
the Civil Code. There can be no logical conclusion than
this, for to subordinate the civil action contemplated in
the said articles to the result of the criminal prosecution
— whether it be conviction or acquittal — would
render meaningless the independent character of the
civil action and the clear injunction in Article 31, that
his action may proceed independently of the criminal
proceedings and regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17,
1986 of the then Intermediate Appellate Court affirming
the order of dismissal of the Regional Trial Court of
Cavite, Branch 18 (Tagaytay City) dated August 17,
1984 is hereby REVERSED and SET ASIDE. The trial
court is ordered to reinstate Civil Case No. TG-748
entitled "Natividad V. Andamo and Emmanuel R.
Andamo vs. Missionaries of Our Lady of La Salette,
Inc." and to proceed with the hearing of the case with
dispatch. This decision is immediately executory. Costs
against respondent corporation.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., is on leave.
CASTRO vs. PEOPLE OF THE PHILIPPINES
G.R. No. 180832, 23 July 2008, 559 SCRA 676
CORONA, J p:
This petition for review on certiorari emanated from the
complaint for grave oral defamation 2 filed by Albert P.
Tan against petitioner Jerome Castro.
The facts follow.
On November 11, 2002, Reedley International School
(RIS) dismissed Tan's son, Justin Albert (then a Grade
12 student), for violating the terms of his disciplinary
probation. Upon Tan's request, RIS reconsidered its
decision but imposed "non-appealable" conditions such
as excluding Justin Albert from participating in the
graduation ceremonies.
Aggrieved, Tan filed a complaint in the Department of
Education (Dep-Ed) for violation of the Manual of
32
Regulation of Private Schools, Education Act of 1982
and Article 19 of the Civil Code against RIS. He alleged
that the dismissal of his son was undertaken with
malice, bad faith and evident premeditation. After
investigation, the Dep-Ed found that RIS' code violation
point system allowed the summary imposition of
unreasonable sanctions (which had no basis in fact and
in law). The system therefore violated due process.
Hence, the Dep-Ed nullified it.
Meanwhile, on November 20, 2002, the Dep-Ed ordered
RIS to readmit Justin Albert without any condition.
Thus, he was able to graduate from RIS and participate
in the commencement ceremonies held on March 30,
2003.
After the graduation ceremonies, Tan met Bernice C.
Ching, a fellow parent at RIS. In the course of their
conversation, Tan intimated that he was contemplating
a suit against the officers of RIS in their personal
capacities, including petitioner who was the assistant
headmaster.
Ching telephoned petitioner sometime the first week of
April and told him that Tan was planning to sue the
officers of RIS in their personal capacities. Before they
hung up, petitioner told Ching:
“Okay, you too, take care and be
careful talking to [Tan], that's
dangerous.”
Ching then called Tan and informed him that petitioner
said "talking to him was dangerous".
Insulted, Tan filed a complaint for grave oral
defamation in the Office of the City Prosecutor of
Mandaluyong City against petitioner on August 21,
2003.
On November 3, 2003, petitioner was charged with
grave oral defamation in the Metropolitan Trial Court
(MeTC) of Mandaluyong City, Branch 60 7 under the
following Information:
“That on or about the 13th day of
March, 2003 in the City of
Mandaluyong, Philippines, a place
within the jurisdiction of this
Honorable Court, the above-named
[petitioner], with deliberate intent of
bringing ATTY. ALBERT P. TAN,
into discredit, dishonor, disrepute
and contempt, did then and there,
willfully, unlawfully and feloniously
speak and utter the following words
to Ms. Bernice C. Ching:
"OK, YOU TOO, YOU TAKE CARE
AND BE CAREFUL TALKING TO
[TAN], THAT'S DANGEROUS".
33
and other words of similar import of
a serious and insulting nature.
CONTRARY TO LAW.”
Petitioner pleaded not guilty during arraignment.
xxx xxx xxx
The MeTC found that Ching's statements in her
affidavit and in open court were consistent and that she
did not have any motive to fabricate a false statement.
Petitioner, on the other hand, harbored personal
resentment, aversion and ill-will against Tan since the
Dep-Ed compelled RIS to readmit his son. Thus, the
MeTC was convinced that petitioner told Ching talking
to Tan was dangerous and that he uttered the statement
with the intention to insult Tan and tarnish his social
and professional reputation.
In a decision dated December 27, 2005, the MeTC found
petitioner guilty beyond reasonable doubt of grave oral
defamation:
“WHEREFORE, judgment is hereby
rendered finding accused, Jerome
Castro GUILTY beyond reasonable
doubt of the crime of Grave Oral
Defamation, sentencing him
therefore, in accordance to Article 358
(1) of the Revised Penal Code and
applying the Indeterminate Sentence
Law to suffer the penalty of
imprisonment of 1 month and 1 day
of arresto mayor as minimum to 4
months and 1 day of arresto mayor as
maximum.”
xxx xxx xxx
Petitioner basically contends that the CA erred in
taking cognizance of the petition for certiorari inasmuch
as the OSG raised errors of judgment (i.e., that the RTC
misappreciated the evidence presented by the parties)
but failed to prove that the RTC committed grave abuse
of discretion. Thus, double jeopardy attached when the
RTC acquitted him.
We grant the petition.
No person shall be twice put in jeopardy of punishment
for the same offense. This constitutional mandate is
echoed in Section 7 of Rule 117 of the Rules of Court
which provides:
“Section 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 in information or
other formal charge sufficient 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.
xxx xxx xxx”
Under this provision, double jeopardy occurs upon (1)
a valid indictment (2) before a competent court (3) after
arraignment (4) when a valid plea has been entered and
(5) when the accused was acquitted or convicted or the
case was dismissed or otherwise terminated without
the express consent of the accused. Thus, an acquittal,
whether ordered by the trial or appellate court, is final
and unappealable on the ground of double jeopardy.
The only exception is when the trial court acted with
grave abuse of discretion or, as we held in Galman v.
Sandiganbayan, when there was mistrial. In such
instances, the OSG can assail the said judgment in a
petition for certiorari establishing that the State was
deprived of a fair opportunity to prosecute and prove
its case.
The rationale behind this exception is that a judgment
rendered by the trial court with grave abuse of
discretion was issued without jurisdiction. It is, for this
reason, void. Consequently, there is no double
jeopardy.
In this case, the OSG merely assailed the RTC's finding
on the nature of petitioner's statement, that is, whether
it constituted grave or slight oral defamation. The OSG
premised its allegation of grave abuse of discretion on
the RTC's "erroneous" evaluation and assessment of the
evidence presented by the parties.
What the OSG therefore questioned were errors of
judgment (or those involving misappreciation of
evidence or errors of law). However, a court, in a
petition for certiorari, cannot review the public
respondent's evaluation of the evidence and factual
findings. Errors of judgment cannot be raised in a Rule
65 petition as a writ of certiorari can only correct errors
of jurisdiction (or those involving the commission of
grave abuse of discretion).
Because the OSG did not raise errors of jurisdiction, the
CA erred in taking cognizance of its petition and,
worse, in reviewing the factual findings of the RTC. We
therefore reinstate the RTC decision so as not to offend
the constitutional prohibition against double jeopardy.
At most, petitioner could have been liable for damages
under Article 26 of the Civil Code:
“Article 26. Every person shall
respect the dignity, personality,
privacy and peace of mind of his
neighbors and other persons. The
following and similar acts, though
they may not constitute a criminal
offense, shall produce a cause of
action for damages, prevention and
other relief:
xxx xxx xxx
(3) Intriguing to cause another
to be alienated from his friends;
xxx xxx xxx”
Petitioner is reminded that, as an educator, he is
supposed to be a role model for the youth. As such, he
should always act with justice, give everyone his due
and observe honesty and good faith.
WHEREFORE, the petition is hereby GRANTED. The
August 29, 2007 decision and December 5, 2007
resolution of the Court of Appeals in CA-G.R. SP No.
98649 are REVERSED and SET ASIDE. The November
20, 2006 decision of the Regional Trial Court of
Mandaluyong City, Branch 212 is REINSTATED.
Petitioner Jerome Castro is ACQUITTED of slight oral
defamation as defined and penalized in Article 358 of
the Revised Penal Code.
No pronouncement as to costs.
SO ORDERED.
Puno, C.J., Carpio, Azcuna and Leonardo-de Castro, JJ.,
concur.
2. CULPA AQUILANA/CULPA CONTRACTUAL/
CULPA CRIMINAL
ARTICLE 2177. Responsibility for fault or
negligence under the preceding article is entirely
separate and distinct from the civil liability arising
from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same
act or omission of the defendant. (n)
FABRE, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 111127, 26 July 1996, 259 SCRA 426
MENDOZA, J p:
This is a petition for review on certiorari of the decision
of the Court of Appeals 1 in CA-GR No. 28245, dated
September 30, 1992, which affirmed with modification
the decision of the Regional Trial Court of Makati,
Branch 58, ordering petitioners jointly and severally to
pay damages to private respondent Amyline Antonio,
34
and its resolution which denied petitioners' motion for
reconsideration for lack of merit.
Petitioners Engracio Fabre, Jr. and his wife were owners
of a 1982 model Mazda minibus. They used the bus
principally in connection with a bus service for school
children which they operated in Manila. The couple
had a driver, Porfirio J. Cabil, whom they hired in 1981,
after trying him out for two weeks. His job was to take
school children to and from the St. Scholastica's College
in Malate, Manila.
On November 2, 1984 private respondent Word for the
World Christian Fellowship Inc. (WWCF) arranged
with petitioners for the transportation of 33 members of
its Young Adults Ministry from Manila to La Union
and back in consideration of which private respondent
paid petitioners the amount of P3,000.00.
The group was scheduled to leave on November 2,
1984, at 5:00 o'clock in the afternoon. However, as
several members of the party were late, the bus did not
leave the Tropical Hut at the corner of Ortigas Avenue
and EDSA until 8:00 o'clock in the evening. Petitioner
Porfirio Cabil drove the minibus.
The usual route to Caba, La Union was through
Carmen, Pangasinan. However, the bridge at Carmen
was under repair, so that petitioner Cabil, who was
unfamiliar with the area (it being his first trip to La
Union), was forced to take a detour through the town of
Ba-ay in Lingayen, Pangasinan. At 11:30 that night,
petitioner Cabil came upon a sharp curve on the
highway, running on a south to east direction, which he
described as "siete." The road was slippery because it
was raining, causing the bus, which was running at the
speed of 50 kilometers per hour, to skid to the left road
shoulder. The bus hit the left traffic steel brace and sign
along the road and rammed the fence of one Jesus
Escano, then turned over and landed on its left side,
coming to a full stop only after a series of impacts. The
bus came to rest off the road. A coconut tree which it
had hit fell on it and smashed its front portion.
Several passengers were injured. Private respondent
Amyline Antonio was thrown on the floor of the bus
and pinned down by a wooden seat which came off
after being unscrewed. It took three persons to safely
remove her from this position. She was in great pain
and could not move.
The driver, petitioner Cabil, claimed he did not see the
curve until it was too late. He said he was not familiar
with the area and he could not have seen the curve
despite the care he took in driving the bus, because it
was dark and there was no sign on the road. He said
that he saw the curve when he was already within 15 to
30 meters of it. He allegedly slowed down to 30
kilometers per hour, but it was too late.
The Lingayen police investigated the incident the next
day, November 3, 1984. On the basis of their finding
35
they filed a criminal complaint against the driver,
Porfirio Cabil. The case was later filed with the
Lingayen Regional Trial Court. Petitioners Fabre paid
Jesus Escano P1,500.00 for the damage to the latter's
fence. On the basis of Escano's affidavit of desistance
the case against petitioners Fabre was dismissed.
Amyline Antonio, who was seriously injured, brought
this case in the RTC of Makati, Metro Manila. As a
result of the accident, she is now suffering from
paraplegia and is permanently paralyzed from the
waist down. During the trial she described the
operations she underwent and adduced evidence
regarding the cost of her treatment and therapy.
Immediately after the accident, she was taken to the
Nazareth Hospital in Ba-ay, Lingayen. As this hospital
was not adequately equipped, she was transferred to
the Sto. Niño Hospital, also in the town of Ba-ay, where
she was given sedatives. An x-ray was taken and the
damage to her spine was determined to be too severe to
be treated there. She was therefore brought to Manila,
first to the Philippine General Hospital and later to the
Makati Medical Center where she underwent an
operation to correct the dislocation of her spine.
In its decision dated April 17, 1989, the trial court found
that:
xxx xxx xxx
WHEREFORE, premises considered, the Court hereby
renders judgment against defendants Mr. & Mrs.
Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant
to articles 2176 and 2180 of the Civil Code of the
Philippines and said defendants are ordered to pay
jointly and severally to the plaintiffs the following
amount:
xxx xxx xxx
The Court of Appeals affirmed the decision of the trial
court with respect to Amyline Antonio but dismissed it
with respect to the other plaintiffs on the ground that
they failed to prove their respective claims. The Court
of Appeals modified the award of damages as follows:
xxx xxx xxx
With the exception of the award of damages, the
petition is devoid of merit.
First, it is unnecessary for our purpose to determine
whether to decide this case on the theory that
petitioners are liable for breach of contract of carriage
or culpa contractual or on the theory of quasi delict or
culpa aquiliana as both the Regional Trial Court and the
Court of Appeals held, for although the relation of
passenger and carrier is "contractual both in origin and
nature," nevertheless "the act that breaks the contract
may be also a tort." In either case, the question is
whether the bus driver, petitioner Porfirio Cabil, was
negligent.
The finding that Cabil drove his bus negligently, while
his employer, the Fabres, who owned the bus, failed to
exercise the diligence of a good father of the family in
the selection and supervision of their employee is fully
supported by the evidence on record. These factual
findings of the two courts we regard as final and
conclusive, supported as they are by the evidence.
Indeed, it was admitted by Cabil that on the night in
question, it was raining, and, as a consequence, the
road was slippery, and it was dark. He averred these
facts to justify his failure to see that there lay a sharp
curve ahead. However, it is undisputed that Cabil
drove his bus at the speed of 50 kilometers per hour
and only slowed down when he noticed the curve some
15 to 30 meters ahead. By then it was too late for him to
avoid falling off the road. Given the conditions of the
road and considering that the trip was Cabil's first one
outside of Manila, Cabil should have driven his vehicle
at a moderate speed. There is testimony that the
vehicles passing on that portion of the road should only
be running 20 kilometers per hour, so that at 50
kilometers per hour, Cabil was running at a very high
speed.
Considering the foregoing — the fact that it was raining
and the road was slippery, that it was dark, that he
drove his bus at 50 kilometers an hour when even on a
good day the normal speed was only 20 kilometers an
hour, and that he was unfamiliar with the terrain, Cabil
was grossly negligent and should be held liable for the
injuries suffered by private respondent Amyline
Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his
negligence gave rise to the presumption that his
employers, the Fabres, were themselves negligent in the
selection and supervision of their employee.
Due diligence in selection of employees is not satisfied
by finding that the applicant possessed a professional
driver's license. The employer should also examine the
applicant for his qualifications, experience and record
of service. Due diligence in supervision, on the other
hand, requires the formulation of rules and regulations
for the guidance of employees and the issuance of
proper instructions as well as actual implementation
and monitoring of consistent compliance with the rules.
In the case at bar, the Fabres, in allowing Cabil to drive
the bus to La Union, apparently did not consider the
fact that Cabil had been driving for school children
only, from their homes to the St. Scholastica's College in
Metro Manila. They had hired him only after a two-
week apprenticeship. They had tested him for certain
matters, such as whether he could remember the names
of the children he would be taking to school, which
were irrelevant to his qualification to drive on a long
distance travel, especially considering that the trip to La
Union was his first. The existence of hiring procedures
and supervisory policies cannot be casually invoked to
overturn the presumption of negligence on the part of
an employer.
Petitioners argue that they are not liable because (1) an
earlier departure (made impossible by the
congregation's delayed meeting) could have averted the
mishap and (2) under the contract, the WWCF was
directly responsible for the conduct of the trip. Neither
of these contentions hold water. The hour of departure
had not been fixed. Even if it had been, the delay did
not bear directly on the cause of the accident. With
respect to the second contention, it was held in an early
case that:
[A] person who hires a public
automobile and gives the driver
directions as to the place to which he
wishes to be conveyed, but exercises
no other control over the conduct of
the driver, is not responsible for acts
of negligence of the latter or
prevented from recovering for
injuries suffered from a collision
between the automobile and a train,
caused by the negligence either of the
locomotive engineer or the
automobile driver.
As already stated, this case actually involves a contract
of carriage. Petitioners, the Fabres, did not have to be
engaged in the business of public transportation for the
provisions of the Civil Code on common carriers to
apply to them. As this Court has held:
Art. 1732. Common carriers
are persons, corporations, firms or
associations engaged in the business
of carrying or transporting
passengers or goods or both, by land,
water, or air for compensation,
offering their services to the public.
The above article makes no distinction between one
whose principal business activity is the carrying of
persons or goods or both, and one who does such
carrying only as an ancillary activity (in local idiom, as
"a sideline"). Article 1732 also carefully avoids making
any distinction between a person or enterprise offering
transportation service on a regular or scheduled basis
and one offering such service on an occasional, episodic
or unscheduled basis. Neither does Article 1732
distinguish between a carrier offering its services to the
"general public," i.e., the general community or
population, and one who offers services or solicits
business only from a narrow segment of the general
population. We think that Article 1732 deliberately
refrained from making such distinctions.
As common carriers, the Fabres were bound to exercise
"extraordinary diligence" for the safe transportation of
the passengers to their destination. This duty of care is
not excused by proof that they exercised the diligence
of a good father of the family in the selection and
36
supervision of their employee. As Art. 1759 of the Code
provides:
Common carriers are liable for the
death of or injuries to passengers
through the negligence or wilful acts
of the former's employees, although
such employees may have acted
beyond the scope of their authority or
in violation of the orders of the
common carriers.
This liability of the common carriers does not cease
upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision
of their employees.
The same circumstances detailed above, supporting the
finding of the trial court and of the appellate court that
petitioners are liable under Arts. 2176 and 2180 for quasi
delict, fully justify finding them guilty of breach of
contract of carriage under Arts. 1733, 1755 and 1759 of
the Civil Code.
Secondly, we sustain the award of damages in favor of
Amyline Antonio. However, we think the Court of
Appeals erred in increasing the amount of
compensatory damages because private respondents
did not question this award as inadequate. To the
contrary, the award of P500,000.00 for compensatory
damages which the Regional Trial Court made is
reasonable considering the contingent nature of her
income as a casual employee of a company and as
distributor of beauty products and the fact that the
possibility that she might be able to work again has not
been foreclosed. In fact she testified that one of her
previous employers had expressed willingness to
employ her again.
With respect to the other awards, while the decisions of
the trial court and the Court of Appeals do not
sufficiently indicate the factual and legal basis for them,
we find that they are nevertheless supported by
evidence in the records of this case. Viewed as an action
for quasi delict, this case falls squarely within the
purview of Art. 2219(2) providing for the payment of
moral damages in cases of quasi delict. On the theory
that petitioners are liable for breach of contract of
carriage, the award of moral damages is authorized by
Art. 1764, in relation to Art. 2220, since Cabil's gross
negligence amounted to bad faith. Amyline Antonio's
testimony as well as the testimonies of her father and
co-passengers, fully establish the physical suffering and
mental anguish she endured as a result of the injuries
caused by petitioners' negligence.
The award of exemplary damages and attorney's fees
was also properly made. However, for the same reason
that it was error for the appellate court to increase the
award of compensatory damages, we hold that it was
also error for it to increase the award of moral damages
and reduce the award of attorney's fees, inasmuch as
37
private respondents, in whose favor the awards were
made, have not appealed.
As above stated, the decision of the Court of Appeals
can be sustained either on the theory of quasi delict or
on that of breach of contract. The question is whether,
as the two courts below held, petitioners, who are the
owners and driver of the bus, may be made to respond
jointly and severally to private respondent. We hold
that they may be. In Dangwa Trans. Co. Inc. v. Court of
Appeals, on facts similar to those in this case, this Court
held the bus company and the driver jointly and
severally liable for damages for injuries suffered by a
passenger. Again, in Bachelor Express, Inc. v. Court of
Appeals a driver found negligent in failing to stop the
bus in order to let off passengers when a fellow
passenger ran amuck, as a result of which the
passengers jumped out of the speeding bus and
suffered injuries, was held also jointly and severally
liable with the bus company to the injured passengers.
The same rule of liability was applied in situations
where the negligence of the driver of the bus on which
plaintiff was riding concurred with the negligence of a
third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buño, Batangas Laguna
Tayabas Bus Co. v. Intermediate Appellate Court, and Metro
Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle
and the driver of the vehicle were jointly and severally
held liable to the injured passenger or the latter's heirs.
The basis of this allocation of liability was explained in
Viluan v. Court of Appeals, thus:
“Nor should it make any difference
that the liability of petitioner [bus
owner] springs from contract while
that of respondents [owner and
driver of other vehicle] arises from
quasi-delict. As early as 1913, we
already ruled in Gutierrez vs.
Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the
negligence of the driver of the bus on
which he was riding and of the driver
of another vehicle, the drivers as well
as the owners of the two vehicles are
jointly and severally liable for
damages. Some members of the
Court, though, are of the view that
under the circumstances they are
liable on quasi-delict.”
It is true that in Philippine Rabbit Bus Lines, Inc. v. Court
of Appeals this Court exonerated the jeepney driver from
liability to the injured passengers and their families
while holding the owners of the jeepney jointly and
severally liable, but that is because that case was
expressly tried and decided exclusively on the theory of
culpa contractual. As this Court there explained:
The trial court was therefore right in
finding that Manalo [the driver] and
 spouses Mangune and Carreon [the
jeepney owners] were negligent.
However, its ruling that spouses
Mangune and Carreon are jointly and
severally liable with Manalo is
erroneous. The driver cannot be held
jointly and severally liable with the
carrier in case of breach of the
contract of carriage. The rationale
behind this is readily discernible.
Firstly, the contract of carriage is
between the carrier and the
passenger, and in the event of
contractual liability, the carrier is
exclusively responsible therefore to
the passenger, even if such breach be
due to the negligence of his driver
(see Viluan v. The Court of Appeals,
et al., G.R. Nos. L-21477-81, April 29,
1966, 16 SCRA 742) . . .
As in the case of BLTB, private respondents in this case
and her co-plaintiffs did not stake out their claim
against the carrier and the driver exclusively on one
theory, much less on that of breach of contract alone.
After all, it was permitted for them to allege alternative
causes of action and join as many parties as may be
liable on such causes of action so long as private
respondent and her co-plaintiffs do not recover twice
for the same injury. What is clear from the cases is the
intent of the plaintiff there to recover from both the
carrier and the driver, thus justifying the holding that
the carrier and the driver were jointly and severally
liable because their separate and distinct acts concurred
to produce the same injury.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED with MODIFICATION as to the award of
damages. Petitioners are ORDERED to PAY jointly and
severally the private respondent Amyline Antonio the
following amounts:
xxx xxx xxx
SO ORDERED.
Regalado, Romero, Puno, and Torres, Jr., JJ ., concur.
CALALAS vs. COURT OF APPEALS, ET AL.
G.R. No. 122039, 31 May 2000, 332 SCRA 356
MENDOZA, J P:
This is a petition for review on certiorari of the decision
of the Court of Appeals, dated March 31, 1991,
reversing the contrary decision of the Regional Trial
Court, Branch 36, Dumaguete City, and awarding
damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of
carriage.
The facts, as found by the Court of Appeals, are as
follows:
At 10 o'clock in the morning of August 23, 1989, private
respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and
operated by petitioner Vicente Calalas. As the jeepney
was filled to capacity of about 24 passengers, Sunga
was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of
the vehicle.
On the way to Poblacion Sibulan, Negros Occidental,
the jeepney stopped to let a passenger off. As she was
seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the
jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with
severe necrosis of the underlying skin." Closed
reduction of the fracture, long leg circular casting, and
case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to
September 7, 1989. Her attending physician, Dr. Danilo
V. Oligario, an orthopedic surgeon, certified she would
remain on a cast for a period of three months and
would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for
damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise
the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party complaint
against Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment, against Salva as
third-party defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck who
was responsible for the accident. It took cognizance of
another case (Civil Case No. 3490), filed by Calalas
against Salva and Verena, for quasi-delict, in which
Branch 37 of the same court held Salva and his driver
Verena jointly liable to Calalas for the damage to his
jeepney.
On appeal to the Court of Appeals, the ruling of the
lower court was reversed on the ground that Sunga's
cause of action was based on a contract of carriage, not
quasi-delict, and that the common carrier failed to
exercise the diligence required under the Civil Code.
The appellate court dismissed the third-party complaint
against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay
plaintiff-appellant:
xxx xxx xxx
SO ORDERED.
38

Hence, this petition. Petitioner contends that the ruling
in Civil Case No. 3490 that the negligence of Verena
was the proximate cause of the accident negates his
liability and that to rule otherwise would be to make
the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the
jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages
to Sunga on the ground that it is not supported by
evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in
Civil Case No. 3490 finding the driver and the owner of
the truck liable for quasi-delict ignores the fact that she
was never a party to that case and, therefore, the
principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the
present case the same. The issue in Civil Case No. 3490
was whether Salva and his driver Verena were liable
for quasi-delict for the damage caused to petitioner's
jeepney. On the other hand, the issue in this case is
whether petitioner is liable on his contract of carriage.
The first, quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence of
the tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the
performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault
should be clearly established because it is the basis of
the action, whereas in breach of contract, the action can
be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the
common carrier, failed to transport his passenger safely
to his destination. In case of death or injuries to
passengers, Art. 1756 of the Civil Code provides that
common carriers are presumed to have been at fault or
to have acted negligently unless they prove that they
observed extraordinary diligence as defined in Arts.
1733 and 1755 of the Code. This provision necessarily
shifts to the common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling
in Civil Case No. 3490, finding Salva and his driver
Verena liable for the damage to petitioner's jeepney,
should be binding on Sunga. It is immaterial that the
proximate cause of the collision between the jeepney
and the truck was the negligence of the truck driver.
The doctrine of proximate cause is applicable only in
actions for quasi-delict, not in actions involving breach
of contract. The doctrine is a device for imputing
liability to a person where there is no relation between
him and another party. In such a case, the obligation is
created by law itself. But, where there is a pre-existing
contractual relation between the parties, it is the parties
themselves who create the obligation, and the function
of the law is merely to regulate the relation thus
created. Insofar as contracts of carriage are concerned,
39
some aspects regulated by the Civil Code are those
respecting the diligence required of common carriers
with regard to the safety of passengers as well as the
presumption of negligence in cases of death or injury to
passengers. It provides:
“ARTICLE 1733. Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to all the circumstances of
each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in Articles 1734, 1735, and
1746, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety
of the passengers is further set forth
in Articles 1755 and 1756.
ARTICLE 1755. A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with due regard for all the
circumstances.
ARTICLE 1756. In case of death of
or injuries to passengers, common
carriers are presumed to have been at
fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed
by Articles 1733 and 1755.”
In the case at bar, upon the happening of the accident,
the presumption of negligence at once arose, and it
became the duty of petitioner to prove that he had to
observe extraordinary diligence in the care of his
passengers.
Now, did the driver of jeepney carry Sunga "safely as
far as human care and foresight could provide, using
the utmost diligence of very cautious persons, with due
regard for all the circumstances" as required by Art.
1755? We do not think so. Several factors militate
against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was
not properly parked, its rear portion being exposed
about two meters from the broad shoulders of the
highway, and facing the middle of the highway in a
diagonal angle. This is a violation of the R.A. No. 4136,
as amended, or the Land Transportation and Traffic
Code, which provides:
 “SECTION 54. Obstruction of
Traffic. — No person shall drive his
motor vehicle in such a manner as to
obstruct or impede the passage of any
vehicle, nor, while discharging or
taking on passengers or loading or
unloading freight, obstruct the free
passage of other vehicles on the
highway.”
Second, it is undisputed that petitioner's driver took in
more passengers than the allowed seating capacity of
the jeepney, a violation of §32(a) of the same law. It
provides:
“Exceeding registered capacity. — No
person operating any motor vehicle
shall allow more passengers or more
freight or cargo in his vehicle than its
registered capacity.”
The fact that Sunga was seated in an "extension seat"
placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was
petitioner unable to overcome the presumption of
negligence imposed on him for the injury sustained by
Sunga, but also, the evidence shows he was actually
negligent in transporting passengers.
We find it hard to give serious thought to petitioner's
contention that Sunga's taking an "extension seat"
amounted to an implied assumption of risk. It is akin to
arguing that the injuries to the many victims of the
tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk
of drowning by boarding an overloaded ferry. This is
also true of petitioner's contention that the jeepney
being bumped while it was improperly parked
constitutes caso fortuito. A caso fortuito is an event
which could not be foreseen, or which, though foreseen,
was inevitable. 3 This requires that the following
requirements be present: (a) the cause of the breach is
independent of the debtor's will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill his
obligation in a normal manner, and (d) the debtor did
not take part in causing the injury to the creditor. 4
Petitioner should have foreseen the danger of parking
his jeepney with its body protruding two meters into
the highway.
xxx xxx xxx
WHEREFORE, the decision of the Court of Appeals,
dated March 31, 1995, and its resolution, dated
September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is
DELETED.
SO ORDERED.
Bellosillo and Buena, JJ., concur.
Quisumbing and De Leon, Jr., JJ., are on leave.
PADUA, ET AL. vs. ROBLES
G.R. No. L-40486, 29 August 1975, 66 SCRA 485
CASTRO, J p:
Resolving this appeal by the spouses Paulino and
Lucena Bebin Padua, we set aside the order dated
October 25, 1972 of the Court of First Instance of
Zambales dismissing their complaint in civil case 1079-
0, and remand this case for further proceedings.
In the early morning of New Year's Day of 1969 a
taxicab (bearing 1968 plate no. TX-9395 and driven by
Romeo N. Punzalan but operated by the Bay Taxi Cab
owned by Gregorio N. Robles) struck ten-year old
Normandy Padua on the national road in barrio
Barretto, Olongapo City. The impact hurled Normandy
about forty meters away from the point where the
taxicab struck him, as a result of which he died.
Subsequently, Normandy's parents (Paulino and
Lucena Bebin Padua), by complaint filed with the Court
of First Instance of Zambales (civil case 427-0), sought
damages from Punzalan and the Bay Taxi Cab;
likewise, the city Fiscal of Olongapo, by information
filed with the same court (criminal case 1158-0),
charged Punzalan with homicide through reckless
imprudence.
On October 27, 1969 the court a quo, in civil case 427-0,
adjudged for the Paduas as follows:
"WHEREFORE judgment is hereby
rendered ordering the defendant
Romeo Punzalan to pay the plaintiffs
the sums of P12,000.00 as actual
damages, P5,000.00 as moral and
exemplary damages, and P10,000.00
as attorney's fees; and dismissing the
complaint insofar as the Bay Taxicab
Company is concerned. With costs
against the defendant Romeo
Punzalan." (emphasis supplied)
Almost a year later, on October 5, 1970, the court a quo,
in criminal case 1158-0, convicted Punzalan, as follows:
"WHEREFORE, the Court finds the accused Romeo
Punzalan y Narciso guilty beyond reasonable doubt of
the crime of homicide through reckless imprudence, as
defined and penalized under Article 365 of the Revised
Penal Code, attended by the mitigating circumstance of
voluntary surrender, and hereby sentences him to
suffer the indeterminate penalty of TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of prision
correccional, as minimum, to SIX (6) YEARS and ONE
(1) DAY of prision mayor, as maximum, and to pay the
cost. The civil liability of the accused has already been
determined and assessed in Civil Case No. 427-0,
40
entitled 'Paulino Padua, et al. vs. Romeo Punzalan, et
al.'" (emphasis supplied)
After the judgment in civil case 427-0 became final, the
Paduas sought execution thereof. This proved futile; the
corresponding court officer returned the writ of
execution unsatisfied.
Unable to collect the amount of P27,000 awarded in
their favor, the Paduas instituted action in the same
court against Gregorio N. Robles to enforce the latter's
subsidiary responsibility under the provisions of article
103 of the Revised Penal Code. Robles filed a motion to
dismiss based on (1) bar of the cause of action by a prior
judgment and (2) failure of the complaint to state a
cause of action.
Thereafter, the court a quo, in an order dated October
25, 1972, granted Robles' motion to dismiss on the
ground that the Paduas' complaint states no cause of
action. This order the Paduas questioned in the Court of
Appeals which, by resolution dated March 5, 1975,
certified the case to this Court for the reason that the
appeal involves only questions of law.
The Paduas predicate their appeal on eighteen errors
allegedly committed by the court a quo. These assigned
errors, however, raise only one substantial issue:
whether the judgment dated October 5, 1970 in criminal
case 1158-0 includes a determination and adjudication
of Punzalan's civil liability arising from his criminal act
upon which Robles' subsidiary civil responsibility may
be based.
The sufficiency and efficacy of a judgment must be
tested by its substance rather than its form. In
construing a judgment, its legal effects including such
effects that necessarily follow because of legal
implications, rather than the language used, govern.
Also, its meaning, operation, and consequences must be
ascertained like any other written instrument. Thus, a
judgment rests on the intention of the court as gathered
from every part thereof, including the situation to
which it applies and the attendant circumstances.
It would appear that a plain reading, on its face, of the
judgment in criminal case 1158-0, particularly its
decretal portion, easily results in the same conclusion
reached by the court a quo: that the said judgment
assessed no civil liability arising from the offense
charged against Punzalan. However, a careful study of
the judgment in question, the situation to which it
applies, and the attendant circumstances, would yield
the conclusion that the court a quo, on the contrary,
recognized the enforceable right of the Paduas to the
civil liability arising from the offense committed by
Punzalan and awarded the corresponding indemnity
therefor.
Civil liability coexists with criminal responsibility. In
negligence cases, the offended party (or his heirs) has
the option between an action for enforcement of civil
41
liability based on culpa criminal under article 100 of the
Revised Penal Code and an action for recovery of
damages based on culpa aquiliana under article 2177 of
the Civil Code. The action for enforcement of civil
liability based on culpa criminal section 1 of Rule 111 of
the Rules of Court deems simultaneously instituted
with the criminal action, unless expressly waived or
reserved for a separate application by the offended
party. Article 2177 of the Civil Code, however,
precludes recovery of damages twice for the same
negligent act or omission.
In the case at bar, the Court finds it immaterial that the
Paduas chose, in the first instance, an action for
recovery of damages based on culpa aquiliana under
articles 2176, 2177, and 2180 of the Civil Code, which
action proved ineffectual. The Court also takes note of
the absence of any inconsistency between the
aforementioned action priorly availed of by the Paduas
and their subsequent application for enforcement of
civil liability arising from the offense committed by
Punzalan and, consequently, for exaction of Robles'
subsidiary responsibility. Allowance of the latter
application involves no violation of the proscription
against double recovery of damages for the same
negligent act or omission. For, as hereinbefore stated,
the corresponding officer of the court a quo returned
unsatisfied the writ of execution issued against
Punzalan to satisfy the amount of indemnity awarded
to the Paduas in civil case 427-0. Article 2177 of the
Civil Code forbids actual double recovery of damages
for the same negligent act or omission. Finally, the
Court notes that the same judge * tried, heard, and
determined both civil case 427-0 and criminal case 1158-
0. Knowledge of an familiarity with all the facts and
circumstances relevant and relative to the civil liability
of Punzalan may thus be readily attributed to the judge
when he rendered judgment in the criminal action.
In view of the above considerations, it cannot
reasonably be contended that the court a quo intended,
in its judgment in criminal case 1158-0, to omit
recognition of the right of the Paduas to the civil
liability arising from the offense of which Punzalan was
adjudged guilty and the corollary award of the
corresponding indemnity therefor. Surely, it cannot be
said that the court intended the statement in the
decretal portion of the judgment in criminal case 1158-0
referring to the determination and assessment of
Punzalan's civil liability in civil case 427-0 to be pure
jargon or "gobbledygook" and to be absolutely of no
meaning and effect whatsoever. The substance of such
statement, taken in the light of the situation to which it
applies and the attendant circumstances, makes
unmistakably clear the intention of the court to accord
affirmation to the Paduas' right to the civil liability
arising from the judgment against Punzalan in criminal
case 1158-0. Indeed, by including such statement in the
decretal portion of the said judgment, the court
intended to adopt the same adjudication and award it
made in civil case 427-0 as Punzalan's civil liability in
criminal case 1158-0.

There is indeed much to be desired in the formulation
by Judge Amores of that part of the decretal portion of
the judgment in criminal case 1158-0 referring to the
civil liability of Punzalan resulting from his criminal
conviction. The judge could have been forthright and
direct instead of circuitous and ambiguous. But, as we
have above explained, the statement on the civil
liability of Punzalan must surely have a meaning; and
even if the statement were reasonably susceptible of
two or more interpretations, that which achieves moral
justice should be adopted, eschewing the other
interpretations which in effect would negate moral
justice.
It is not amiss at this juncture to emphasize to all
magistrates in all levels of the judicial hierarchy that
extreme degree of care should be exercised in the
formulation of the dispositive portion of a decision,
because it is this portion that is to be executed once the
decision becomes final. The adjudication of the rights
and obligations of the parties, and the dispositions
made as well as the directions and instructions given by
the court in the premises in conformity with the body of
the decision, must all be spelled out clearly, distinctly
and unequivocally, leaving absolutely no room for
dispute, debate or interpretation.
We therefore hold that the Paduas' complaint in civil
case 1079-0 states a cause of action against Robles
whose concomitant subsidiary responsibility, per the
judgment in criminal case 1158-0, subsists.
ACCORDINGLY, the order a quo dated October 25,
1972 dismissing the complaint in civil case 1079-0 is set
aside, and this case is hereby remanded to the court a
quo for further proceedings conformably with this
decision and with law. No pronouncement as to costs.
Makalintal, C.J., Teehankee, Makasiar, Esguerra,
Aquino, Concepcion, Jr. and Martin, JJ., concur.
Muñoz Palma J., did not take part.
Antonio, J., is on leave.
ATLANTIC GULF AND PACIFIC COMPANY OF
MANILA, INC., vs. COURT OF APPEALS, ET AL.
G.R. Nos. 114841-42, 20 October 1995, 247 SCRA 606
REGALADO, J p:
Petitioner moves for the reconsideration of our
judgment promulgated in this case on August 23, 1995
contending that (1) private respondents are permitted
thereunder to recover damages twice for the same act
or omission, and (2) the interests adjudged on the
awarded damages should be reckoned from the date of
finality of our aforesaid judgment rendered herein.
We reject the first submission. It is theorized by
petitioner that our affirmance of the judgment of the
trial court, which granted damages for both the
"damage proper to the land" and "rentals for the same
property," runs afoul of the proscription in Article 2177
of the Civil Code against double recovery of damages
for the same act.
Petitioner overlooks the fact that private respondents,
as plaintiffs in the actions filed in the court below,
specifically alleged that as a result of petitioner's
dredging operations the soil of the former's property
"became infertile, salty, unproductive and unsuitable
for agriculture." They further averred that petitioner's
heavy equipment "used to utilize (private respondents')
land as a depot or parking lot of these equipment(t)
without paying any rent therefor."
Respondent Court of Appeals affirmed the factual
findings and conclusions of the trial court on the nature
and cause of the twin items of damages sustained by
private respondents, thus:
The main reason why (private respondents') properties
were damaged, as found by the trial court, was due to
the dredging operations undertaken by (petitioner) on
the area, which findings are supported by the testimony
of Carlito Castillo, testifying in Civil Case No. 10276,
and Teodora Dimaculangan, in Civil Case No. 10696. . .
. Neither has (petitioner) asseverated against (private
respondents') submission that their properties were
used by (petitioner) as a dump site for its equipment
and trucks, and proof are the photographs of their
properties showing tracks left by truck tires on their
properties. (Parenthetical indication of the parties
concerned are made for easy reference.)
It is, therefore, clearly apparent that petitioner was
guilty of two culpable transgressions on the property
rights of private respondents, that is, for the ruination
of the agricultural fertility or utility of the soil of their
property and, further, for the unauthorized use of said
property as a dump site or depot for petitioner's heavy
equipment and trucks. Consequently, albeit with
differing amounts, both courts correctly awarded
damages both for the destruction of the land and for the
unpaid rentals, or more correctly denominated, for the
reasonable value of its use and occupation of the
premises. There is consequently no merit in said
objection of petitioner.
The second proposition of petitioner is better taken, in
light of the reconciliation and clarification undertaken
by the Court of the heretofore imprecise and varying
pronouncements on the imposition of interest in
judgments for a sum of money.
In the recent case of Eastern Shipping Lines, Inc. vs. Court
of Appeals, et al., the Court adopted interpretative rules
on the matter of the imposable interest and the accrual
thereof. The rules pertinent to the interest involved in
the case at bar are hereunder briefed as applied to the
controversy on the computation and the reckoning date
thereof.
42
When an obligation not constituting a loan or
forbearance of money is breached, interest on the
amount of the damages awarded may be imposed at
the rate of six percent (6%) per annum. No interest shall
be adjudged on unliquidated claims unless the same
can be established with reasonable certainty. Since the
pleadings of herein private respondents in the trial
court did not spell out said amounts with certitude, the
legal interest thereon shall run only from the
promulgation of judgment of said court, it being at that
stage that the quantification of damages may be
deemed to have been reasonably ascertained.
The actual base for the computation of such legal
interest, however, shall be the amount as finally
adjudged by this Court. Furthermore, when our
judgment herein becomes final and executory, the rate
of legal interest shall be twelve percent (12%) from such
finality until the satisfaction of the total judgment
account, the interim period being effectively equivalent
to a forbearance of credit.
ACCORDINGLY, and by way of clarification, the
judgment rendered by this Court in the instant case
shall be understood to mean that the legal interest to be
paid by petitioner is six percent (6%) of the amount due
computed from September 6, 1990 when judgment was
rendered by the trial court. Additionally, interest of
twelve percent (12%) shall be imposed on such total
amount due upon the finality of the judgment of the
Court herein until the full satisfaction thereof.
SO ORDERED.
Narvasa, C.J., Puno, Mendoza and Francisco, JJ.,
concur.
II. QUASI-DELICT
1. ELEMENTS OF A QUASI-DELICT
ARTICLE 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)
ANDAMO, ET AL. vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 74761, 6 November 1990, 191 SCRA 195
See supra.
FGU INSURANCE CORPORATION vs.
COURT OF APPEALS, ET AL.
G.R. No. 118889, 23 March 1998, 287 SCRA 718
BELLOSILLO, J p:
43
For damages suffered by a third party, may an action
based on quasi-delict prosper against a rent-a-car
company and, consequently, its insurer for fault or
negligence of the car lessee in driving the rented
vehicle?
This was a two-car collision at dawn. At around 3
o'clock of 21 April 1987, two (2) vehicles, both
Mitsubishi Colt Lancers, cruising northward along
Epifanio de los Santos Avenue, Mandaluyong City,
figured in a traffic accident. The car bearing Plate No.
PDG 435 owned by Lydia F. Soriano was being driven
at the outer lane of the highway by Benjamin Jacildone,
while the other car, with Plate No. PCT 792, owned by
respondent FILCAR Transport, Inc. (FILCAR), and
driven by Peter Dahl-Jensen as lessee, was at the center
lane, left of the other vehicle. Upon approaching the
corner of Pioneer Street, the car owned by FILCAR
swerved to the right hitting the left side of the car of
Soriano. At that time Dahl-Jensen, a Danish tourist, did
not possess a Philippine driver's license.
As a consequence, petitioner FGU Insurance
Corporation, in view of its insurance contract with
Soriano, paid the latter P25,382.20. By way of
subrogation, 2 it sued Dahl-Jensen and respondent
FILCAR as well as respondent Fortune Insurance
Corporation (FORTUNE) as insurer of FILCAR for
quasi-delict before the Regional Trial Court of Makati
City.
Unfortunately, summons was not served on Dahl-
Jensen since he was no longer staying at his given
address; in fact, upon motion of petitioner, he was
dropped from the complaint.
On 30 July 1991 the trial court dismissed the case for
failure of petitioner to substantiate its claim of
subrogation.
On 31 January 1995 respondent Court of Appeals
affirmed the ruling of the trial court although based on
another ground, i.e., only the fault or negligence of
Dahl-Jensen was sufficiently proved but not that of
respondent FILCAR. 4 In other words, petitioner failed
to establish its cause of action for sum of money based
on quasi-delict.
In this appeal, petitioner insists that respondents are
liable on the strength of the ruling in MYC-Agro-
Industrial Corporation v. Vda. de Caldo that the registered
owner of a vehicle is liable for damages suffered by
third persons although the vehicle is leased to another.
We find no reversible error committed by respondent
court in upholding the dismissal of petitioner's
complaint. The pertinent provision is Art. 2176 of the
Civil Code which states: "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 thereon, the following
requisites must concur: (a) damage suffered by the
plaintiff; (b) fault or negligence of the defendant; and,
(c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred
by the plaintiff.
We agree with respondent court that petitioner failed to
prove the existence of the second requisite, i.e., fault or
negligence of defendant FILCAR, because only the fault
or negligence of Dahl-Jensen was sufficiently
established, not that of FILCAR. It should be noted that
the damage caused on the vehicle of Soriano was
brought about by the circumstance that Dahl-Jensen
swerved to the right while the vehicle that he was
driving was at the center lane. It is plain that the
negligence was solely attributable to Dahl-Jensen thus
making the damage suffered by the other vehicle his
personal liability. Respondent FILCAR did not have
any participation therein.
Article 2180 of the same Code which deals also with
quasi-delict provides:
“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.
The father and, in case of his death or
incapacity, the mother, are
responsible for the damages caused
by the minor children who live in
their company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their
authority and live in their company.
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.
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.
The State is responsible in like
manner when it acts through a
special agent; but not when the
damage has been caused by the
official to whom the task done
properly pertains, in which case what
is provided in article 2176 shall be
applicable.
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.
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.”
The liability imposed by Art. 2180 arises by virtue of a
presumption juris tantum of negligence on the part of
the persons made responsible thereunder, derived from
their failure to exercise due care and vigilance over the
acts of subordinates to prevent them from causing
damage. Yet, as correctly observed by respondent
court, Art. 2180 is hardly applicable because none of the
circumstances mentioned therein obtains in the case
under consideration. Respondent FILCAR being
engaged in a rent-a-car business was only the owner of
the car leased to Dahl-Jensen. As such, there was no
vinculum juris between them as employer and
employee. Respondent FILCAR cannot in any way be
responsible for the negligent act of Dahl-Jensen, the
former not being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of
the same Code which provides: "In motor vehicle
mishap, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have by the
use of due diligence, prevented the misfortune . . . If the
owner was not in the motor vehicle, the provisions of
article 2180 are applicable." Obviously, this provision of
Art. 2184 is neither applicable because of the absence of
master-driver relationship between respondent FILCAR
and Dahl-Jensen. Clearly, petitioner has no cause of
action against respondent FILCAR on the basis of quasi-
delict; logically, its claim against respondent FORTUNE
can neither prosper.
Petitioner's insistence on MYC-Agro-Industrial
Corporation is rooted in a misapprehension of our
ruling therein. In that case, the negligent and reckless
operation of the truck owned by petitioner corporation
caused injuries to several persons and damage to
property. Intending to exculpate itself from liability, the
corporation raised the defense that at the time of the
collision it had no more control over the vehicle as it
was leased to another; and, that the driver was not its
employee but of the lessee. The trial court was not
persuaded as it found that the true nature of the alleged
lease contract was nothing more than a disguise
44
effected by the corporation to relieve itself of the
burdens and responsibilities of an employer. We
upheld this finding and affirmed the declaration of joint
and several liability of the corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals dated 31 January 1995
sustaining the dismissal of petitioner's complaint by the
trial court is AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., Vitug, Panganiban and Quisumbing, JJ .,
concur.
CINCO vs. CANONOY, ET AL.
G.R. No. L-33171, 31 May 1979
MELENCIO-HERRERA, J p:
This is a Petition for Review on Certiorari of the
Decision of the Court of First Instance of Cebu rendered
on November 5, 1970.
The background facts to the controversy may be set
forth as follows:
Petitioner herein filed, on February 25, 1970, a
Complaint in the City Court of Mandaue City, Cebu,
Branch II, for the recovery of damages on account of a
vehicular accident involving his automobile and a
jeepney driven by Romeo Hilot and operated by
Valeriana Pepito and Carlos Pepito, the last three being
the private respondents in this suit. Subsequent thereto,
a criminal case was filed against the driver, Romeo
Hilot, arising from the same accident. At the pre-trial in
the civil case, counsel for private respondents moved to
suspend the civil action pending the final
determination of the criminal suit, invoking Rule 111,
Section 3 (b) of the Rules of Court, which provides:
"(b) After a criminal action has
been commenced, no civil action
arising from the same offense can be
prosecuted, and the same shall be
suspended, in whatever stage it may
be found, until final judgment in the
criminal proceeding has been
rendered;"
The City Court of Mandaue City in an Order dated
August 11, 1970, ordered the suspension of the civil
case. Petitioner's Motion for Reconsideration thereof,
having been denied on August 25, 1970, petitioner
elevated the matter on Certiorari to the Court of First
Instance of Cebu, respondent Judge presiding, on
September 11, 1970, alleging that the City Judge had
acted with grave abuse of discretion in suspending the
civil action for being contrary to law and jurisprudence.
On November 5, 1970, respondent Judge dismissed the
Petition for Certiorari on the ground that there was no
45
grave abuse of discretion on the part of the City Court
in suspending the civil action inasmuch as damage to
property is not one of the instances when an
independent civil action is proper; that petitioner has
another plain, speedy, and adequate remedy under the
law, which is to submit his claim for damages in the
criminal case; that the resolution of the City Court is
interlocutory and, therefore, Certiorari is improper; and
that the Petition is defective inasmuch as what
petitioner actually desires is a Writ of Mandamus
(Annex "R"). Petitioner's Motion for Reconsideration
was denied by respondent Judge in an Order dated
November 14, 1970 (Annex "S" and Annex "U").
Hence, this Petition for Review before this Tribunal, to
which we gave due course on February 25, 1971.
Petitioner makes these: x x x all of which can be
synthesized into one decisive issue: whether or not
there can be an independent civil action for damage to
property during the pendency of the criminal action.
xxx xxx xxx
It bears emphasizing that petitioner's cause of action is
based on quasi-delict. The concept of quasi-delict, as
enunciated in Article 2176 of the Civil Code (supra), is
so broad that it includes not only injuries to persons but
also damage to property. It makes no distinction
between "damage to persons" on the one hand and
"damage to property" on the other. Indeed, the word
"damage" is used in two concepts: the "harm" done and
"reparation" for the harm done. And with respect to
"harm" it is plain that it includes both injuries to person
and property since "harm" is not limited to personal but
also to property injuries. In fact, examples of quasi-delict
in the law itself include damage to property. An
instance is Article 2191(2) of the Civil Code which holds
proprietors responsible for damages caused by
excessive smoke which may be harmful "to persons or
property."
In the light of the foregoing disquisition, we are
constrained to hold that respondent Judge gravely
abused his discretion in upholding the Decision of the
City Court of Mandaue City, Cebu, suspending the civil
action based on a quasi-delict until after the criminal
case is finally terminated. Having arrived at this
conclusion, a discussion of the other errors assigned
becomes unnecessary.
WHEREFORE, granting the Writ of Certiorari prayed
for, the Decision of the Court of First Instance of Cebu
sought to be reviewed is hereby set aside, and the City
Court of Mandaue City, Cebu, Branch II, is hereby
ordered to proceed with the hearing of Civil Case No.
189 of that Court.
Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez, Guerrero
and De Castro, JJ., concur.
2. NEGLIGENCE
a. Concept of Negligence
ARTICLE 1173. The fault or negligence of the
obligor consists in the omission of that diligence
which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad
faith, the provisions of articles 1171 and 2201,
paragraph 2, shall apply.
PICART vs. SMITH, Jr.,
G.R. No. L-12219, 15 March 1918, 37 Phil. 809
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 sufficient
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
sufficiently 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 flange 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
sufficiently 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
46
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 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. 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
sufficiently 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 consequences, without
reference to the prior negligence of the other party.
The decision in the case of Rakes vs. Atlantic, Gulf and
Pacific 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
47
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 infliction 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.
MALCOLM, J., concurring:
After mature deliberation, I have finally 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 finds 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.)
CUSI, ET AL. vs.
PHILIPPINE NATIONAL RAILWAYS
G.R. No. L-29889, 31 May 1979, 90 SCRA 357
GUERRERO, J p:
Direct appeal from the decision of the Court of First
Instance of Rizal ordering defendant-appellant to
indemnify the plaintiffs-appellees in the total amount of
Two Hundred Thirty-Nine Thousand and Six Hundred
Forty-Eight Pesos, and Seventy-Two Centavos
(P239,648.72) for injuries received in a collision caused
by the gross negligence of defendant-appellant, plus
Ten Thousand Pesos (P10,000.00) as attorney's fees and
expenses of litigation.
Upon the amended and supplemental complaints for
damages filed by plaintiffs-appellees, the spouses
Victorino Cusi and Pilar Pobre before the Court of First
Instance of Rizal against the Manila Railroad Company,
now the Philippine National Railways and duly
answered by the latter and after due hearing, the
following facts appear as undisputed: On the night of
October 5, 1963, plaintiffs-appellees attended a birthday
party inside the United Housing Subdivision in
Parañaque, Rizal. After the party which broke up at
about 11 o'clock that evening, the plaintiffs-appellees
proceeded home in their Vauxhall car with Victorino
Cusi at the wheel. Upon reaching the railroad tracks,
finding that the level crossing bar was raised and seeing
that there was no flashing red light, and hearing no
whistle from any coming train, Cusi merely slackened
his speed and proceeded to cross the tracks. At the
same time, a train bound for Lucena traversed the
crossing, resulting in a collision between the two. The
impact threw the plaintiffs-appellees out of their car
which was smashed. One Benjamin Franco, who came
from the same party and was driving a vehicle right
behind them, rushed to their aid and brought them to
San Juan de Dios Hospital for emergency treatment.
Later, the plaintiffs-appellees were transferred to the
Philippine General Hospital. A week later, Mrs. Cusi
transferred to the Manila Doctors Hospital where Dr.
Manuel Rivera, head of the Orthopedic and Fracture
Service of the Philippine General Hospital, performed
on her a second operation and continued to treat her
until her discharge from the hospital on November 2,
1963. Thereafter, Dr. Rivera treated her as an out-
patient until the end of February, 1964 although by that
time the fractured bones had not yet healed. Mrs. Cusi
was also operated on by Dr. Francisco Aguilar, Director
of the National Orthopedic Hospital, in May, 1964 and
in August, 1965, after another operation in her upper
body from the chest to the abdomen, she was placed in
cast for some three (3) months and her right arm
immobilized by reason of the cast.
xxx xxx xxx
The defense is centered on the proposition that the
gross negligence of Victorino Cusi was the proximate
cause of the collision; that had he made a full stop
before traversing the crossing as required by section
56(a) of Act 3992 (Motor Vehicle Law), he could have
seen and heard the approach of the train, and thus,
there would have been no collision.
After a protracted trial, the lower court rendered the
decision now subject of the appeal. Defendant-
appellant seeks the reversal of said decision; but should
we affirm the same, that the award be reduced to a
reasonable amount.
As the action is predicated on negligence, the New Civil
Code making clear that "whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done," the
crucial question posed in the petition at bar is the
existence of negligence on the part of defendant-
appellant as found by the lower court.
xxx xxx xxx
2. Nor is the result different even if no such
presumption were indulged in, that is, even if We were
48
to resolve whether or not there exist compelling reasons
for an ultimate reversal.
The judicial pronouncement below that the gross
negligence of defendant-appellant was the proximate
cause of the collision has been thoroughly reviewed by
this Court and we fully affirm the same.
Negligence has been defined by Judge Cooley in his
work on Torts (3d. ed.), sec. 1324 3 as "the failure to
observe for the protection of the interests of another
person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such
other person suffers injury." By such a test, it can
readily be seen that there is no hard and fast rule
whereby such degree of care and vigilance is measured,
it is dependent upon the circumstances in which a
person finds himself so situated. All that the law
requires is that it is always incumbent upon a person to
use that care and diligence expected of reasonable men
under similar circumstances.
These are the circumstances attendant to the collision.
Undisputably, the warning devices installed at the
railroad crossing were manually operated; there were
only 2 shifts of guards provided for the operation
thereof — one, the 7:00 A.M. to 3:00 P.M. shift, and the
other, the 3:00 P.M. to 11:00 P.M. shift. On the night of
the accident, the train for Lucena was on an
unscheduled trip after 11:00 P.M. During that precise
hour, the warning devices were not operating for no
one attended to them. Also, as observed by the lower
court, the locomotive driver did not blow his whistle,
thus: ". . . he simply sped on without taking an extra
precaution of blowing his whistle from a distance of 50
to 10 meters from the crossing. That the train was
running at full speed is attested to by the fact that
notwithstanding the application of the emergency
brakes, the train did not stop until it reached a distance
of around 100 meters."
These facts assessed together show the inadequacy,
nay, the absence, of precautions taken by the
defendant-appellant to warn the travelling public of the
impending danger. It is clear to Us that as the signal
devices were wholly manually-operated, there was an
urgent need for a flagman or guard to man the crossing
at all times. As it was, the crossing was left unattended
to after eleven o'clock every night and on the night of
the accident. We cannot in all reason justify or condone
the act of the defendant-appellant allowing the subject
locomotive to travel through the unattended crossing
with inoperative signal devices, but without sending
any of its employees to operate said signal devices so as
to warn oncoming motorists of the approach of one of
its locomotives. It is not surprising therefore that the
inoperation of the warning devices created a situation
which was misunderstood by the riding public to mean
safe passage. Jurisprudence recognizes that if warning
devices are installed in railroad crossings, the travelling
public has the right to rely on such warning devices to
put them on their guard and take the necessary
49
precautions before crossing the tracks. A need,
therefore, exists for the railroad company to use
reasonable care to keep such devices in good condition
and in working order, or to give notice that they are not
operating, since if such a signal is misunderstood it is a
menace. 4 Thus, it has been held that if a railroad
company maintains a signalling device at a crossing to
give warning of the approach of a train, the failure of
the device to operate is generally held to be evidence of
negligence, which maybe considered with all the
circumstances of the case in determining whether the
railroad company was negligent as a matter of fact.
The set of circumstances surrounding the collision
subject of this case is very much similar to that of Lilius
v. Manila Railroad Company, 59 Phil. 758 (1934), where
this Court upheld the lower court's finding of
negligence on the part of defendant locomotive
company upon the following facts —
". . . on the part of the defendant
company, for not having had on that
occasion any semaphore at the
crossing at Dayap, to serve as a
warning to passersby of its existence
in order that they might take the
necessary precautions before crossing
the railroad; and, on the part of its
employees — the flagman and
switchman, for not having remained
at his post at the crossing in question
to warn passersby of the approaching
train; the station master, for failure to
send the said flagman and switchman
to his post on time; and the engineer,
for not having taken the necessary
precautions to avoid an accident, in
view of the absence of said flagman
and switchman, by slackening his
speed and continuously ringing the
bell and blowing the whistle before
arriving at the crossing."
Defendant-appellant rests its defense mainly on Section
56(a) of the Motor Vehicle Law. Thus:
"Section 56(a) — Traversing through
streets and railroad crossing, etc. —
All vehicles moving on the public
highways shall be brought to a full
stop before traversing any `through
street' or railroad crossing. Whenever
any such `through street' or crossing
is so designated and signposted, it
shall be unlawful for the driver of
any vehicle to fail to stop within
twenty meters but not less than two
and one-half meters from such
`through street' or railroad crossing."
The defense presupposes that the failure of plaintiffs-
appellees to stop before proceeding to traverse the
crossing constitutes contributory negligence, thereby
precluding them from recovering indemnity for their
injuries and damages.
The candor of defendant-appellant in interposing such
a defense is doubtful. As seemingly observed by the
lower court, the defense, through inadvertence or
deliberateness, did not pursue further the excepting
clause of the same section, thus to go on:
"Provided, however, that the driver
of a passenger automobile or
motorcycle may instead of coming to
a full stop, slow down to not more
than ten kilometers per hour
whenever it is apparent that no
hazard exists."
After a thorough perusal of the facts attendant to the
case, this Court is in full accord with the lower court.
Plaintiff-appellee Victorino Cusi had exercised all the
necessary precautions required of him as to avoid
injury to himself and to others. We find no need for him
to have made a full stop; relying on his faculties of sight
and hearing, Victorino Cusi had no reason to anticipate
the impending danger. The record shows that the
spouses Cusi previously knew of the existence of the
railroad crossing, having stopped at the guardhouse to
ask for directions before proceeding to the party. At the
crossing, they found the level bar raised, no warning
lights flashing nor warning bells ringing, nor whistle
from an oncoming train. They safely traversed the
crossing. On their return home, the situation at the
crossing did not in the least change, except for the
absence of the guard or flagman. Hence, on the same
impression that the crossing was safe for passage as
before, plaintiff-appellee Victorino Cusi merely
slackened his speed and proceeded to cross the tracks,
driving at the proper rate of speed for going over
railroad crossings. Had defendant-appellant been
successful in establishing that its locomotive driver
blew his whistle to warn motorists of his approach to
compensate for the absence of the warning signals, and
that Victorino Cusi, instead of stopping or slackening
his speed, proceeded with reckless speed and
regardless of possible or threatened danger, then We
would have been put in doubt as to the degree of
prudence exercised by him and would have, in all
probability, declared him negligent. 6 But as the
contrary was established, we remain convinced that
Victorino Cusi had not, through his own negligence,
contributed to the accident so as to deny him damages
from the defendant-appellant.
xxx xxx xxx
WHEREFORE, the judgment of the lower court is
hereby AFFIRMED with the modification that the total
amount of damages shall bear legal interest at six per
cent (6%) from the rendition of the decision dated
March 26, 1968.
SO ORDERED.
Teehankee, (Chairman), Makasiar, Fernandez, De
Castro and Melencio-Herrera, JJ., concur.
GAN vs. COURT OF APPEALS
G.R. No. L-44264, 19 September 1988, 165 SCRA 378
FERNAN C.J. p:
Petitioner Hedy Gan was convicted of the crime of
Homicide thru Reckless Imprudence in Criminal Case
No. 10201 of the then Court of First Instance of Manila,
Branch XXII, presided by Judge Federico C. Alikpala.
She was sentenced to an indeterminate penalty of four
(4) months and one (1) day of arresto mayor as
minimum and two (2) years, four (4) months and one
(1) day of prision correccional as maximum and was
made to indemnify the heirs of the victim the sum of
P12,000.00 without any subsidiary imprisonment in
case of insolvency and to pay the costs. On appeal, the
trial court's decision was modified and petitioner was
convicted only of Homicide thru Simple Imprudence.
Still unsatisfied with the decision of the Court of
Appeals, 1 petitioner has come to this Court for a
complete reversal of the judgment below.
The facts of the case as found by the appellate court are
as follows:
"In the morning of July 4, 1972 at
about 8:00 o'clock, the accused Hedy
Gan was driving a Toyota car along
North Bay Boulevard, Tondo, Manila.
While in front of house no. 694 of
North Bay Boulevard, there were two
vehicles, a truck and a jeepney parked
on one side of the road, one following
the other about two to three meters
from each other. As the car driven by
the accused approached the place
where the two vehicles were parked,
there was a vehicle coming from the
opposite direction, followed by
another which tried to overtake and
bypass the one in front of it and
thereby encroached the lane of the car
driven by the accused. To avoid a
head-on collision with the oncoming
vehicle, the defendant swerved to the
right and as a consequence, the front
bumper of the Toyota Crown Sedan
hit an old man who was about to cross
the boulevard from south to north,
pinning him against the rear of the
parked jeepney. The force of the
impact caused the parked jeepney to
move forward hitting the rear of the
parked truck ahead of it. The
pedestrian was injured, the Toyota
Sedan was damaged on its front, the
jeep suffered damages on its rear and
50
 front parts, and the truck sustained
scratches at the wooden portion of its
rear. The body of the old man who
was later identified as Isidoro Casino
was immediately brought to the Jose
Reyes Memorial Hospital but was
(pronounced) dead on arrival."
An information for Homicide thru Reckless
Imprudence was filed against petitioner in view of the
above incident. She entered a plea of not guilty upon
arraignment and the case was set for trial.
xxx xxx xxx
On December 22, 1972, the trial court rendered
judgment finding petitioner guilty beyond reasonable
doubt of the offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R.
No. 14472-CR. On May 3, 1976, the Court of Appeals
rendered a decision, the dispositive portion of which
reads as follows:
"Wherefore, as modified, the accused
Hedy Gan is guilty beyond
reasonable doubt of the crime of
homicide thru simple imprudence
and, pursuant to paragraph 2, Article
365 of the Revised Penal Code she is
hereby sentenced to the
indeterminate penalty of three (3)
months and eleven (11 ) days of
arresto mayor and to indemnify the
heirs of Isidoro Casino in the sum of
Twelve Thousand Pesos (P12,000.00)
without, however, any subsidiary
imprisonment in case of insolvency,
and to pay the costs."
xxx xxx xxx
We reverse.
The test for determining whether or not 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 the
duty on the doer to take precaution against its
mischievous results and the failure to do so constitutes
negligence.
A corollary rule is what is known in the law as the
emergency rule. "Under that rule, one who suddenly
finds himself in a place of danger, and is required to act
without time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better
51
method, unless the emergency in which he finds
himself is brought about by his own negligence."
Applying the above test to the case at bar, we find the
petitioner not guilty of the crime of Simple Imprudence
resulting in Homicide.
The appellate court in finding the petitioner guilty said:
"The accused should have stepped on
the brakes when she saw the car
going in the opposite direction
followed by another which overtook
the first by passing towards its left.
She should not only have swerved
the car she was driving to the right
but should have also tried to stop or
lessen her speed so that she would
not bump into the pedestrian who
was crossing at the time but also the
jeepney which was then parked along
the street."
The course of action suggested by the appellate court
would seem reasonable were it not for the fact that such
suggestion did not take into account the amount of time
afforded petitioner to react to the situation she was in.
For it is undeniable that the suggested course of action
presupposes sufficient time for appellant to analyze the
situation confronting her and to ponder on which of the
different courses of action would result in the least
possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was
presented by the prosecution with respect to the
relative distances of petitioner to the parked jeepney
and the oncoming overtaking vehicle that would tend
to prove that petitioner did have sufficient time to
reflect on the consequences of her instant decision to
swerve her car to the right without stepping on her
brakes. In fact, the evidence presented by the
prosecution on this point is the petitioner's statement to
the police stating:
"Ang masasabi ko lang ho umiwas ho
ako sa isang sasakyan na biglang
nagovertake sa sasakyan na aking
kasalubong kung kaya ay aking
kinabig sa kanan ang aking kotse
subalit siya naman biglang pagtawid
ng tao o victim at hindi ko na ho
naiiwasan at ako ay wala ng magawa.
Iyan ho ang buong pangyayari nang
nasabing aksidente." (emphasis
supplied)
The prosecution having presented this exhibit as its
own evidence, we cannot but deem its veracity to have
been admitted by it. Thus, under the circumstances
narrated by petitioner, we find that the appellate court
is asking too much from a mere mortal like the
petitioner who in the blink of an eye had to exercise her
best judgment to extricate herself from a difficult and
dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be
expected to act with all the coolness of a person under
normal conditions." The danger confronting petitioner
was real and imminent, threatening her very existence.
She had no opportunity for rational thinking but only
enough time to heed the very powerful instinct of self-
preservation.
Also, the respondent court itself pronounced that the
petitioner was driving her car within the legal limits.
We therefore rule that the "emergency rule" enunciated
above applies with full force to the case at bar and
consequently absolve petitioner from any criminal
negligence in connection with the incident under
consideration.
We further set aside the award of damages to the heirs
of the victim, who by executing a release of the claim
due them, had effectively and clearly waived their right
thereto.
WHEREFORE, judgment is hereby rendered acquitting
petitioner HEDY GAN y YU of the crime of Homicide
thru Simple Imprudence. She is no longer liable for the
P12,000.00 civil indemnity awarded by the appellate
court to the heirs of the victim.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ ., concur.
Gutierrez, Jr., J ., on leave.
VALENZUELA vs. COURT OF APPEALS, ET AL.
G.R. Nos. 115024 and 117944, 7 February 1996.
KAPUNAN, J p:
These two petitions for review on certiorari under Rule
45 of the Revised Rules of Court stem from an action to
recover damages by petitioner Lourdes Valenzuela in
the Regional Trial Court of Quezon City for injuries
sustained by her in a vehicular accident in the early
morning of June 24, 1990. The facts found by the trial
court are succinctly summarized by the Court of
Appeals below:
“This is an action to recover damages
based on quasi-delict, for serious
physical injuries sustained in a
vehicular accident.
Plaintiff's version of the accident is as
follows: At around 2:00 in the
morning of June 24, 1990, plaintiff
Ma. Lourdes Valenzuela was driving
a blue Mitsubishi lancer with Plate
No. FFU 542 from her restaurant at
Marcos highway to her home at
Palanza Street, Araneta Avenue. She
was travelling along Aurora Blvd.
with a companion, Cecilia Ramon,
heading towards the direction of
Manila. Before reaching A. Lake
Street, she noticed something wrong
with her tires; she stopped at a
lighted place where there were
people, to verify whether she had a
flat tire and to solicit help if needed.
Having been told by the people
present that her rear right tire was
flat and that she cannot reach her
home in that car's condition, she
parked along the sidewalk, about 1-
1/2 feet away, put on her emergency
lights, alighted from the car, and
went to the rear to open the trunk.
She was standing at the left side of
the rear of her car pointing to the
tools to a man who will help her fix
the tire when she was suddenly
bumped by a 1987 Mitsubishi Lancer
driven by defendant Richard Li and
registered in the name of defendant
Alexander Commercial, Inc. Because
of the impact plaintiff was thrown
against the windshield of the car of
the defendant, which was destroyed,
and then fell to the ground. She was
pulled out from under defendant's
car. Plaintiff's left leg was severed up
to the middle of her thigh, with only
some skin and sucle connected to the
rest of the body. She was brought to
the UERM Medical Memorial Center
where she was found to have a
"traumatic amputation, leg, left up to
distal thigh (above knee)." She was
confined in the hospital for twenty
(20) days and was eventually fitted
with an artificial leg. The expenses for
the hospital confinement
(P120,000.00) and the cost of the
artificial leg (P27,000.00) were paid
by defendants from the car insurance.
In her complaint, plaintiff prayed for
moral damages in the amount of P1
million, exemplary damages in the
amount of P100,000.00 and other
medical and related expenses
amounting to a total of P180,000.00,
including loss of expected earnings.
Defendant Richard Li denied that he
was negligent. He was on his way
home, travelling at 55 kph;
considering that it was raining,
visibility was affected and the road
was wet. Traffic was light. He
testified that he was driving along the
inner portion of the right lane of
52
 Aurora Blvd. towards the direction of
Araneta Avenue, when he was
suddenly confronted, in the vicinity
of A. Lake Street, San Juan, with a car
coming from the opposite direction,
travelling at 80 kph, with "full bright
lights." Temporarily blinded, he
instinctively swerved to the right to
avoid colliding with the oncoming
vehicle, and bumped plaintiff's car,
which he did not see because it was
midnight blue in color, with no
parking lights or early warning
device, and the area was poorly
lighted. He alleged in his defense that
the left rear portion of plaintiff's car
was protruding as it was then "at a
standstill diagonally" on the outer
portion of the right lane towards
Araneta Avenue (par. 18, Answer).
He confirmed the testimony of
plaintiff's witness that after being
bumped the car of the plaintiff
swerved to the right and hit another
car parked on the sidewalk.
Defendants counterclaimed for
damages, alleging that plaintiff was
reckless or negligent, as she was not a
licensed driver.
The police investigator, Pfc. Felic
Ramos, who prepared the vehicular
accident report and the sketch of the
three cars involved in the accident,
testified that the plaintiff's car was
"near the sidewalk"; this witness did
not remember whether the hazard
lights of plaintiff's car were on, and
did not notice if there was an early
warning device; there was a street
light at the corner of Aurora Blvd.
and F. Roman, about 100 meters
away. It was not mostly dark, i.e.
"things can be seen" (p. 16, tsn, Oct.
28, 1991).
A witness for the plaintiff, Rogelio
Rodriguez, testified that after plaintiff
alighted from her car and opened the
trunk compartment, defendant's car
came approaching very fast ten
meters from the scene; the car was
"zigzagging." The rear left side of
plaintiff's car was bumped by the
front right portion of defendant's car;
as a consequence, the plaintiff's car
swerved to the right and hit the
parked car on the sidewalk. Plaintiff
was thrown to the windshield of
defendant's car, which was
destroyed, and landed under the car.
He stated that defendant was under
53
the influence of liquor as he could
"smell it very well" (pp. 43, 79, tsn,
June 17, 1991).”
After trial, the lower court sustained the plaintiff's
submissions and found defendant Richard Li guilty of
gross negligence and liable for damages under Article
2176 of the Civil Code. The trial court likewise held
Alexander Commercial, Inc., Li's employer, jointly and
severally liable for damages pursuant to Article 2180. It
ordered the defendants to jointly and severally pay the
following amounts:
xxx xxx xxx
Consequently, both parties assail the respondent court's
decision by filing two separate petitions before this
court. Richard Li, in G.R. No. 117944, contends that he
should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes
Valenzuela's own negligence. Alternatively, he argues
that in the event that this Court finds him negligent,
such negligence ought to be mitigated by the
contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes
Valenzuela assails the respondent court's decision
insofar as it absolves Alexander Commercial, Inc. from
liability as the owner of the car driven by Richard Li
and insofar as it reduces the amount of the actual and
moral damages awarded by the trial court.
As the issues are intimately related, both petitions are
hereby consolidated.
It is plainly evident that the petition for review in G.R.
No. 117944 raises no substantial questions of law. What
it, in effect, attempts to have this Court review are
factual findings of the trial court, as sustained by the
Court of Appeals finding Richard Li grossly negligent
in driving the Mitsubishi Lancer provided by his
company in the early morning hours of June 24, 1990.
This we will not do. As a general rule, findings of fact
of the Court of Appeals are binding and conclusive
upon us, and this Court will not normally disturb such
factual findings unless the findings of fact of the said
court are palpably unsupported by the evidence on
record or unless the judgment itself is based on a
misapprehension of facts.
In the first place, Valenzuela's version of the incident
was fully corroborated by an uninterested witness,
Rogelio Rodriguez, the owner-operator of an
establishment located just across the scene of the
accident. On trial, he testified that he observed a car
being driven at a "very fast" speed, racing towards the
general direction of Araneta Avenue. Rodriguez further
added that he was standing in front of his
establishment, just ten to twenty feet away from the
scene of the accident, when he saw the car hit
Valenzuela, hurtling her against the windshield of the
defendant's Mitsubishi Lancer, from where she
eventually fell under the defendant's car.
Spontaneously reacting to the incident, he crossed the
street, noting that a man reeking with the smell of
liquor had alighted from the offending vehicle in order
to survey the incident. Equally important, Rodriguez
declared that he observed Valenzuela's car parked
parallel and very near the sidewalk, contrary to Li's
allegation that Valenzuela's car was close to the center
of the right lane. We agree that as between Li's "self-
serving" asseverations and the observations of a witness
who did not even know the accident victim personally
and who immediately gave a statement of the incident
similar to his testimony to the investigator immediately
after the incident, the latter's testimony deserves greater
weight. As the court emphasized:
“The issue is one of credibility and
from Our own examination of the
transcript, We are not prepared to set
aside the trial court's reliance on the
testimony of Rodriguez negating
defendant's assertion that he was
driving at a safe speed. While
Rodriguez drives only a motorcycle,
his perception of speed is not
necessarily impaired. He was
subjected to cross-examination and
no attempt was made to question his
competence or the accuracy of his
statement that defendant was driving
"very fast." This was the same
statement he gave to the police
investigator after the incident, as told
to a newspaper report (Exh. "P"). We
see no compelling basis for
disregarding his testimony.
The alleged inconsistencies in
Rodriguez' testimony are not borne
out by an examination of the
testimony. Rodriguez testified that
the scene of the accident was across
the street where his beerhouse is
located about ten to twenty feet away
(pp. 35–36, tsn, June 17, 1991). He did
not state that the accident transpired
immediately in front of his
establishment. The ownership of the
Lambingan sa Kambingan is not
material; the business is registered in
the name of his mother, but he
explained that he owns the
establishment (p. 5, tsn, June 20,
1991). Moreover, the testimony that
the streetlights on his side of Aurora
Boulevard were on the night the
accident transpired (p. 8) is not
necessarily contradictory to the
testimony of Pfc. Ramos that there
was a streetlight at the corner of
Aurora Boulevard and F. Roman
Street (p. 45, tsn, Oct. 20, 1991).
With respect to the weather
condition, Rodriguez testified that
there was only a drizzle, not a heavy
rain and the rain has stopped and he
was outside his establishment at the
time the accident transpired (pp. 64–
65, tsn, June 17, 1991). This was
consistent with plaintiff's testimony
that it was no longer raining when
she left Bistro La Conga (pp. 10–11,
tsn, April 29, 1991). It was defendant
Li who stated that it was raining all
the way in an attempt to explain why
he was travelling at only 50-55 kph.
(p. 11, tsn, Oct. 14, 1991). As to the
testimony of Pfc. Ramos that it was
raining, he arrived at the scene only
in response to a telephone call after
the accident had transpired (pp. 9–10,
tsn, Oct. 28, 1991). We find no
substantial inconsistencies in
Rodriguez's testimony that would
impair the essential integrity of his
testimony or reflect on his honesty.
We are compelled to affirm the trial
court's acceptance of the testimony of
said eyewitness.”
Against the unassailable testimony of witness
Rodriguez we note that Li's testimony was peppered
with so many inconsistencies leading us to conclude
that his version of the accident was merely adroitly
crafted to provide a version, obviously self-serving,
which would exculpate him from any and all liability in
the incident. Against Valenzuela's corroborated claims,
his allegations were neither backed up by other
witnesses nor by the circumstances proven in the
course of trial. He claimed that he was driving merely
at a speed of 55 kph. when "out of nowhere he saw a
dark maroon lancer right in front of him, which was
(the) plaintiff's car." He alleged that upon seeing this
sudden "apparition" he put on his brakes to no avail as
the road was slippery.
One will have to suspend disbelief in order to give
credence to Li's disingenuous and patently self-serving
asseverations. The average motorist alert to road
conditions will have no difficulty applying the brakes
to a car traveling at the speed claimed by Li. Given a
light rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare
like Aurora Boulevard, Li would have had ample time
to react to the changing conditions of the road if he
were alert — as every driver should be — to those
conditions. Driving exacts a more than usual toll on the
senses. Physiological "fight or flight" mechanisms are
at work, provided such mechanisms were not dulled by
drugs, alcohol, exhaustion, drowsiness, etc. Li's failure
to react in a manner which would have avoided the
accident could therefore have been only due to either or
both of the two factors: 1) that he was driving at a "very
54
fast" speed as testified by Rodriguez; and 2) that he was
under the influence of alcohol. Either factor working
independently would have diminished his
responsiveness to road conditions, since normally he
would have slowed down prior to reaching
Valenzuela's car, rather than be in a situation forcing
him to suddenly apply his brakes. As the trial court
noted (quoted with approval by respondent court):
“Secondly, as narrated by defendant
Richard Li to the San Juan Police
immediately after the incident, he
said that while driving along Aurora
Blvd., out of nowhere he saw a dark
maroon lancer right in front of him,
which was plaintiff's car, indicating,
again, thereby that, indeed, he was
driving very fast, oblivious of his
surroundings and the road ahead of
him, because if he was not, then he
could not have missed noticing at a
still far distance the parked car of the
plaintiff at the right side near the
sidewalk which had its emergency
lights on, thereby avoiding forcefully
bumping at the plaintiff who was
then standing at the left rear edge of
her car.
Since, according to him, in his
narration to the San Juan Police, he
put on his brakes when he saw the
plaintiff's car in front of him, but that
it failed as the road was wet and
slippery, this goes to show again,
that, contrary to his claim, he was,
indeed, running very fast. For, were it
otherwise, he could have easily
completely stopped his car, thereby
avoiding the bumping of the plaintiff,
notwithstanding that the road was
wet and slippery. Verily, since, if,
indeed, he was running slow, as he
claimed, at only about 55 kilometers
per hour, then, inspite of the wet and
slippery road, he could have avoided
hitting the plaintiff by the mere
expedient or applying his brakes at
the proper time and distance.
It could not be true, therefore, as he
now claims during his testimony,
which is contrary to what he told the
police immediately after the accident
and is, therefore, more believable,
that he did not actually step on his
brakes, but simply swerved a little to
the right when he saw the on-coming
car with glaring headlights, from the
opposite direction, in order to avoid
it.
55
For, had this been what he did, he
would not have bumped the car of
the plaintiff which was properly
parked at the right beside the
sidewalk. And, it was not even
necessary for him to swerve a little to
the right in order to safely avoid a
collision with the on-coming car,
considering that Aurora Blvd. is a
double lane avenue separated at the
center by a dotted white paint, and
there is plenty of space for both cars,
since her car was running at the right
lane going towards Manila and the
on-coming car was also on its right
lane going to Cubao."
Having come to the conclusion that Li was negligent in
driving his company-issued Mitsubishi Lancer, the next
question for us to determine is whether or not
Valenzuela was likewise guilty of contributory
negligence in parking her car alongside Aurora
Boulevard, which entire area Li points out, is a no
parking zone.
We agree with the respondent court that Valenzuela
was not guilty of contributory negligence.
Contributory negligence is conduct on the part of the
injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard to
which he is required to conform for his own protection.
Based on the foregoing definition, the standard or act to
which, according to petitioner Li, Valenzuela ought to
have conformed for her own protection was not to park
at all at any point of Aurora Boulevard, a no parking
zone. We cannot agree.
Courts have traditionally been compelled to recognize
that an actor who is confronted with an emergency is
not to be held up to the standard of conduct normally
applied to an individual who is in no such situation.
The law takes stock of impulses of humanity when
placed in threatening or dangerous situations and does
not require the same standard of thoughtful and
reflective care from persons confronted by unusual and
oftentimes threatening conditions. Under the
"emergency rule" adopted by this court in Gan vs. Court
of Appeals, an individual who suddenly finds himself in
a situation of danger and is required to act without
much time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of
negligence if he fails to undertake what subsequently
and upon reflection may appear to be a better solution,
unless the emergency was brought by his own
negligence.
Applying this principle to a case in which the victims in
a vehicular accident swerved to the wrong lane to avoid
hitting two children suddenly darting into the street,
we held, in Mc Kee vs. Intermediate Appellate Court, that
the driver therein, Jose Koh, "adopted the best means
possible in the given situation" to avoid hitting the
children. Using the "emergency rule" the court
concluded that Koh, in spite of the fact that he was in
the wrong lane when the collision with an oncoming
truck occurred, was not guilty of negligence.
While the emergency rule applies to those cases in
which reflective thought, or the opportunity to
adequately weigh a threatening situation is absent, the
conduct which is required of an individual in such
cases is dictated not exclusively by the suddenness of
the event which absolutely negates thoughtful care, but
by the over-all nature of the circumstances. A woman
driving a vehicle suddenly crippled by a flat tire on a
rainy night will not be faulted for stopping at a point
which is both convenient for her to do so and which is
not a hazard to other motorists. She is not expected to
run the entire boulevard in search for a parking zone or
turn on a dark street or alley where she would likely
find no one to help her. It would be hazardous for her
not to stop and assess the emergency (simply because
the entire length of Aurora Boulevard is a no-parking
zone) because the hobbling vehicle would be both a
threat to her safety and to other motorists. In the instant
case, Valenzuela, upon reaching that portion of Aurora
Boulevard close to A. Lake St., noticed that she had a
flat tire. To avoid putting herself and other motorists in
danger, she did what was best under the situation. As
narrated by respondent court: "She stopped at a lighted
place where there are people, to verify whether she had
a flat tire and to solicit help if needed. Having been told
by the people present that her rear right tire was flat
and that she cannot reach her home she parked along
the sidewalk, about 1 1/2 feet away, behind a Toyota
Corona Car." 20 In fact, respondent court noted, Pfc.
Felix Ramos, the investigator on the scene of the
accident confirmed that Valenzuela's car was parked
very close to the sidewalk. 21 The sketch which he
prepared after the incident showed Valenzuela's car
partly straddling the sidewalk, clear and at a
convenient distance from motorists passing the right
lane of Aurora Boulevard. This fact was itself
corroborated by the testimony of witness Rodriguez.
Under the circumstances described, Valenzuela did
exercise the standard reasonably dictated by the
emergency and could not be considered to have
contributed to the unfortunate circumstances which
eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her
car on a sidewalk in Aurora Boulevard was not of her
own making, and it was evident that she had taken all
reasonable precautions.
Obviously in the case at bench, the only negligence
ascribable was the negligence of Li on the night of the
accident. "Negligence, as it is commonly understood is
conduct which creates an undue risk of harm to others."
It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers
injury. We stressed, in Corliss vs. Manila Railroad
Company, that negligence is the want of care required
by the circumstances.
The circumstances established by the evidence adduced
in the court below plainly demonstrate that Li was
grossly negligent in driving his Mitsubishi Lancer. It
bears emphasis that he was driving at a fast speed at
about 2:00 A.M. after a heavy downpour had settled
into a drizzle rendering the street slippery. There is
ample testimonial evidence on record to show that he
was under the influence of liquor. Under these
conditions, his chances of effectively dealing with
changing conditions on the road were significantly
lessened. As Prosser and Keaton emphasize:
“[U]nder present day traffic
conditions, any driver of an
automobile must be prepared for the
sudden appearance of obstacles and
persons on the highway, and of other
vehicles at intersections, such as one
who sees a child on the curb may be
required to anticipate its sudden dash
into the street, and his failure to act
properly when they appear may be
found to amount to negligence.
Li's obvious unpreparedness to cope
with the situation confronting him on
the night of the accident was clearly
of his own making.”
We now come to the question of the liability of
Alexander Commercial, Inc., Li's employer. In denying
liability on the part of Alexander Commercial, the
respondent court held that:
“There is no evidence, not even
defendant Li's testimony, that the
visit was in connection with official
matters. His functions as assistant
manager sometimes required him to
perform work outside the office as he
has to visit buyers and company
clients, but he admitted that on the
night of the accident he came from BF
Homes Parañaque he did not have
'business from the company' (pp. 25–
26, tsn, Sept. 23, 1991). The use of the
company car was partly required by
the nature of his work, but the
privilege of using it for non-official
business is a 'benefit,' apparently
referring to the fringe benefits
attaching to his position.”
Under the civil law, an employer is liable for the
negligence of his employees in the discharge of their
respective duties, the basis of which liability is not
respondeat superior, but the relationship of pater familias,
which theory bases the liability of the master ultimately
on his own negligence and not on that of his servant
56
(Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an
employer may be held liable for the negligence of his
employee, the act or omission which caused damage
must have occurred while an employee was in the
actual performance of his assigned tasks or duties (St.
Francis High School vs. Court of Appeals, 194 SCRA 341).
In defining an employer's liability for the acts done
within the scope of the employee's assigned tasks, the
Supreme Court has held that this includes any act done
by an employee, in furtherance of the interests of the
employer or for the account of the employer at the time
of the infliction of the injury or damage (Filamer
Christian Institute vs. Intermediate Appellate Court, 212
SCRA 637). An employer is expected to impose upon its
employees the necessary discipline called for in the
performance of any act 'indispensable to the business
and beneficial to their employer' (at p. 645).
In light of the foregoing, We are unable to sustain the
trial court's finding that since defendant Li was
authorized by the company to use the company car
'either officially or socially or even bring it home,' he
can be considered as using the company car in the
service of his employer or on the occasion of his
functions. Driving the company car was not among his
functions as assistant manager; using it for non-official
purposes would appear to be a fringe benefit, one of the
perks attached to his position. But to impose liability
upon the employer under Article 2180 of the Civil
Code, earlier quoted, there must be a showing that the
damage was caused by their employees in the service of
the employer or on the occasion of their functions.
There is no evidence that Richard Li was at the time of
the accident performing any act in furtherance of the
company's business or its interests, or at least for its
benefit. The imposition of solidary liability against
defendant Alexander Commercial Corporation must
therefore fail.
We agree with the respondent court that the
relationship in question is not based on the principle of
respondeat superior, which holds the master liable for
acts of the servant, but that of pater familias, in which the
liability ultimately falls upon the employer, for his
failure to exercise the diligence of a good father of the
family in the selection and supervision of his
employees. It is up to this point, however, that our
agreement with the respondent court ends. Utilizing
the bonus pater familias standard expressed in Article
2180 of the Civil Code, we are of the opinion that Li's
employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident
of June 24, 1990.
First, the case of St. Francis High School vs. Court of
Appeals upon which respondent court has placed undue
reliance, dealt with the subject of a school and its
teacher's supervision of students during an
extracurricular activity. These cases now fall under the
provision on special parental authority found in Art.
218 of the Family Code which generally encompasses
all authorized school activities, whether inside or
outside school premises.
57
Second, the employer's primary liability under the
concept of pater familias embodied by Art. 2180 (in
relation to Art. 2176) of the Civil Code is quasi-delictual
or tortious in character. His liability is relieved on a
showing that he exercised the diligence of a good father
of the family in the selection and supervision of its
employees. Once evidence is introduced showing that
the employer exercised the required amount of care in
selecting its employees, half of the employer's burden is
overcome. The question of diligent supervision,
however, depends on the circumstances of
employment.
Ordinarily, evidence demonstrating that the employer
has exercised diligent supervision of its employee
during the performance of the latter's assigned tasks
would be enough to relieve him of the liability imposed
by Article 2180 in relation to Article 2176 of the Civil
Code. The employer is not expected to exercise
supervision over either the employee's private activities
or during the performance of tasks either unsanctioned
by the former or unrelated to the employee's tasks. The
case at bench presents a situation of a different
character, involving a practice utilized by large
companies with either their employees of managerial
rank or their representatives.
It is customary for large companies to provide certain
classes of their employees with courtesy vehicles. These
company cars are either wholly owned and maintained
by the company itself or are subject to various plans
through which employees eventually acquire their
vehicles after a given period of service, or after paying a
token amount. Many companies provide liberal "car
plans" to enable their managerial or other employees of
rank to purchase cars, which, given the cost of vehicles
these days, they would not otherwise be able to
purchase on their own.
Under the first example, the company actually owns
and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the
car is really owned and maintained by the employee
himself. In furnishing vehicles to such employees, are
companies totally absolved of responsibility when an
accident involving a company-issued car occurs during
private use after normal office hours?
Most pharmaceutical companies, for instance, which
provide cars under the first plan, require rigorous tests
of road worthiness from their agents prior to turning
over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a
family, they entrust the company vehicle only after they
are satisfied that the employee to whom the car has
been given full use of the said company car for
company or private purposes will not be a threat or
menace to himself, the company or to others. When a
company gives full use and enjoyment of a company
car to its employee, it in effect guarantees that it is, like
every good father, satisfied that its employee will use
the privilege reasonably and responsively.
In the ordinary course of business, not all company
employees are given the privilege of using a company-
issued car. For large companies other than those cited
in the example of the preceding paragraph, the
privilege serves important business purposes either
related to the image of success an entity intends to
present to its clients and to the public in general, or —
for practical and utilitarian reasons — to enable its
managerial and other employees of rank or its sales
agents to reach clients conveniently. In most cases,
providing a company car serves both purposes. Since
important business transactions and decisions may
occur at all hours in all sorts of situations and under all
kinds of guises, the provision for the unlimited use of a
company car therefore principally serves the business
and goodwill of a company and only incidentally the
private purposes of the individual who actually uses
the car, the managerial employee or company sales
agent. As such, in providing for a company car for
business use and/or for the purpose of furthering the
company's image, a company owes a responsibility to
the public to see to it that the managerial or other
employees to whom it entrusts virtually unlimited use
of a company issued car are able to use the company
issue capably and responsibly.
In the instant case, Li was an Assistant Manager of
Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant
Manager did not require him to scrupulously keep
normal office hours as he was required quite often to
perform work outside the office, visiting prospective
buyers and contacting and meeting with company
clients. 30 These meetings, clearly, were not strictly
confined to routine hours because, as a managerial
employee tasked with the job of representing his
company with its clients, meetings with clients were
both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial,
Inc. therefore enabled both Li — as well as the
corporation — to put up the front of a highly successful
entity, increasing the latter's goodwill before its
clientele. It also facilitated meeting between Li and its
clients by providing the former with a convenient mode
of travel.
Moreover, Li's claim that he happened to be on the road
on the night of the accident because he was coming
from a social visit with an officemate in Parañaque was
a bare allegation which was never corroborated in the
court below. It was obviously self-serving. Assuming
he really came from his officemate's place, the same
could give rise to speculation that he and his officemate
had just been from a work-related function, or they
were together to discuss sales and other work related
strategies.
In fine, Alexander Commercial, Inc. has not
demonstrated, to our satisfaction that it exercised the
care and diligence of a good father of the family in
entrusting its company car to Li. No allegations were
made as to whether or not the company took the steps
necessary to determine or ascertain the driving
proficiency and history of Li, to whom it gave full and
unlimited use of a company car. Not having been able
to overcome the burden of demonstrating that it should
be absolved of liability for entrusting its company car to
Li, said company, based on the principle of bonus pater
familias, ought to be jointly and severally liable with the
former for the injuries sustained by Ma. Lourdes
Valenzuela during the accident.
Finally, we find no reason to overturn the amount of
damages awarded by the respondent court, except as to
the amount of moral damages. In the case of moral
damages, while the said damages are not intended to
enrich the plaintiff at the expense of a defendant, the
award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the
opinion that the reduction in moral damages from an
amount of P1,000,000.00 to P500,000.00 by the Court of
Appeals was not justified considering the nature of the
resulting damage and the predictable sequelae of the
injury.
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of
the full ambulatory functions of her left extremity, even
with the use of state of the art prosthetic technology.
Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements
and months of physical and occupational rehabilitation
and therapy. During her lifetime, the prosthetic devise
will have to be replaced and re-adjusted to changes in
the size of her lower limb effected by the biological
changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-
menopausal women. In other words, the damage done
to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to
the physiologic changes which her body would
normally undergo through the years. The replacements,
changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are painful.
The foregoing discussion does not even scratch the
surface of the nature of the resulting damage because it
would be highly speculative to estimate the amount of
psychological pain, damage and injury which goes with
the sudden severing of a vital portion of the human
body. A prosthetic device, however technologically
58
advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the
lower limb. The sensory functions are forever lost. The
resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.
As the amount of moral damages are subject to this
Court's discretion, we are of the opinion that the
amount of P1,000,000.00 granted by the trial court is in
greater accord with the extent and nature of the injury
— physical and psychological — suffered by
Valenzuela as a result of Li's grossly negligent driving
of his Mitsubishi Lancer in the early morning hours of
the accident.
WHEREFORE, PREMISES CONSIDERED, the decision
of the court of Appeals is modified with the effect of
REINSTATING the judgment of the Regional Trial
Court.
SO ORDERED.
Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur.
VITUG, J., concurring:
Pursuant to Article 2180 of the Civil Code that
acknowledges responsibility under a relationship of
patria potestas, a person may be held accountable not
only for his own direct culpable act or negligence but
also for those of others albeit predicated on his own
supposed failure to exercise due care in his supervisory
authority and functions. In the case of an employer, that
vicarious liability attaches only when the tortious
conduct of the employee relates to, or is in the course
of, his employment. The question to ask should be
whether, at the time of the damage or injury, the
employee is engaged in the affairs or concerns of the
employer or, independently, in that of his own. While
an employer incurs no liability when an employee's
conduct, act or omission is beyond the range of
employment, a minor deviation from the assigned task
of an employee, however, does not affect the liability of
an employer.
ADZUARA vs. COURT OF APPEALS, ET AL.
G.R. No. 125134, 22 January 1999, 361 SCRA 585
BELLOSILLO, J p:
XERXES ADZUARA Y DOTIMAS was found guilty by
the trial court of reckless imprudence resulting in
damage to property with less serious physical injuries.
His conviction was affirmed by the Court of Appeals.
Through this petition for review on certiorari he seeks
the reversal of his conviction.
On 17 December 1990, at half past 1:00 o'clock in the
morning, petitioner Xerxes Adzuara y Dotimas, then a
law student, and his friends Rene Gonzalo and Richard
Jose were cruising in a 4-door Colt Galant sedan with
plate number NMT 718 along the stretch of Quezon
59
Avenue coming from the direction of EDSA towards
Delta Circle at approximately 40 kilometers per hour. 1
Upon reaching the intersection of 4th West Street their
car collided with a 1975 4-door Toyota Corona sedan
with plate number PMD 711 owned and driven by
Gregorio Martinez. Martinez had just attended a Loved
Flock meeting with his daughter Sahlee 2 and was
coming from the eastern portion of Quezon Avenue
near Delta Circle. He was then executing a U-turn at the
speed of 5 kph at the north-west portion of Quezon
Avenue going to Manila when the accident occurred.
The collision flung the Corona twenty (20) meters
southward from the point of impact causing it to land
atop the center island of Quezon Avenue. The Galant
skittered southward on Quezon Avenue's western half
leaving its left rear about four (4) meters past the
Corona's right front side. The principal points of contact
between the two (2) cars were the Galant's left front
side and the Corona's right front door including its
right front fender.
Both petitioner and Martinez claimed that their lanes
had green traffic lights although the investigating
policeman Marcelo Sabido declared that the traffic light
was blinking red and orange when he arrived at the
scene of the accident an hour later.
Sahlee Martinez, who was seated on the Corona's right
front seat, sustained physical injuries which required
confinement and medical attendance at the National
Orthopaedic Hospital for five (5) days. As a result she
missed classes at St. Paul's College for two (2) weeks.
Petitioner and his friends were treated at the Capitol
Medical Center for their injuries.
On 12 July 1991 petitioner was charged before the
Regional Trial Court of Quezon city with reckless
imprudence resulting in damage to property with less
serious physical injuries under Art. 365 of the Revised
Penal Code. He pleaded not guilty to the charge.
On 11 December 1991, before the presentation of
evidence, private complainant Martinez manifested his
intention to institute a separate civil action for damages
against petitioner.
The Regional Trial Court of Quezon City, Branch 95,
convicted petitioner Xerxes Adzuara after trial and
sentenced him to suffer imprisonment of two (2)
months and fifteen (15) days of arresto mayor and to
pay a fine of P50,000.00, with subsidiary imprisonment
in case of insolvency.
The Court of Appeals affirmed the decision of the trial
court but deleted the fine of P50,000.00. On 23 May 1996
11 the appellate court denied petitioner's motion for
reconsideration hence, this petition for review on
certiorari under Rule 45 of the Rules of Court charging
that (a) petitioner's post-collision conduct does not
constitute sufficient basis to convict where there are no
factual circumstances warranting a finding of
negligence, and (b) the medical certificate by itself and
unsubstantiated by the doctor's testimony creates doubt
as to the existence of the injuries complained of.
We find no merit in the petition. A perusal of the
decision of the trial court shows that there are factual
circumstances warranting a finding of negligence on
the part of petitioner. xxx
xxx xxx xxx
In the instant case, nothing on record shows that the
facts were not properly evaluated by the court a quo. As
such, we find no reason to disturb their findings. It
bears to stress that the appreciation of petitioner's post-
collision behavior serves only as a means to emphasize
the finding of negligence which is readily established
by the admission of petitioner and his friend Renato
that they saw the car of Martinez making a U-turn but
could not avoid the collision by the mere application of
the brakes. Negligence is the want of care required by
the circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the
situation of the parties and the degree of care and
vigilance which the circumstances reasonably require.
What degree of care and vigilance then did the
circumstances require? At half past 1:00 o'clock in the
morning along an almost deserted avenue, ordinary
care and vigilance would suffice. This may consist of
keeping a watchful eye on the road ahead and
observing the traffic rules on speed, right of way and
traffic light. The claim of petitioner that Martinez made
a swift U-turn which caused the collision is not credible
since a U-turn is done at a much slower speed to avoid
skidding and overturning, compared to running
straight ahead. Nonetheless, no evidence was presented
showing skid marks caused by the car driven by
Martinez if only to demonstrate that he was driving at a
fast clip in negotiating the U-turn. On the other hand,
the speed at which petitioner drove his car appears to
be the prime cause for his inability to stop his car and
avoid the collision. His assertion that he drove at the
speed of 40 kph. is belied by Martinez who testified that
when he looked at the opposite lane for any oncoming
cars, he saw none; then a few seconds later, he was hit
by Adzuara's car. The extent of the damage on the car
of Martinez and the position of the cars after the impact
further confirm the finding that petitioner went beyond
the speed limit required by law and by the
circumstances.
It is a rule that a motorist crossing a thru-stop street has
the right of way over the one making a U-turn. But if
the person making a U-turn has already negotiated half
of the turn and is almost on the other side so that he is
already visible to the person on the thru-street, the
latter must give way to the former. Petitioner was on
the thru-street and had already seen the Martinez car.
He should have stopped to allow Martinez to complete
the U-turn having, as it were, the last clear chance to
avoid the accident which he ignored. In fact, he never
stopped. Rather, he claimed that on the assumption that
he was negligent, the other party was also guilty of
contributory negligence since his car had no lights on.
The negligence of Martinez however has not been
satisfactorily shown.
Petitioner insists that the traffic light facing him at the
intersection was green which only indicated that he had
the right of way. But the findings of the court a quo on
the matter countervail this stance, hence, we see no
reason to disturb them.
To weaken the evidence of the prosecution, petitioner
assails the testimony of Martinez as being replete with
inconsistencies. The records however reveal that these
inconsistencies refer only to minor points which
indicate veracity rather than prevarication by the
witness. They tend to bolster the probative value of the
testimony in question as they erase any suspicion of
being rehearsed.
Finally, petitioner claims that the medical certificate
presented by the prosecution was uncorroborated by
actual testimony of the physician who accomplished
the same and as such has no probative value insofar as
the physical injuries suffered by Sahlee are concerned.
Regretfully, we cannot agree. The fact of the injury
resulting from the collision may be proved in other
ways such as the testimony of the injured person. In the
case at bar, Sahlee Martinez testified that her injuries as
described in the medical certificate were caused by the
vehicular accident of 17 December 1990. This
declaration was corroborated by Gregorio. This, no less,
is convincing proof.
WHEREFORE, the petition is DENIED. The decision of
the Court of Appeals of 22 November 1995 finding
petitioner XERXES ADZUARA Y DOTIMAS guilty
beyond reasonable doubt of the crime charged and
sentencing him to suffer an imprisonment of two (2)
months and fifteen (15) days of arresto mayor medium
is AFFIRMED. Costs against petitioner.
SO ORDERED.
Puno, Mendoza, Quisumbing and Buena, JJ., concur.
PRUDENTIAL BANK vs.
COURT OF APPEALS, ET AL.
G.R. No. 125536, 16 March 2000, 328 SCRA 264
QUISUMBING, J p:
This appeal by certiorari under Rule 45 of the Rules of
Court seeks to annul and set aside the Decision dated
January 31, 1996, and the Resolution dated July 2, 1997,
of the Court of Appeals in CA G.R. CV No. 35532,
which reversed the judgment of the Regional Trial
Court of Valenzuela, Metro Manila, Branch 171, in Civil
Case No. 2913-V-88, dismissing the private
respondent's complaint for damages.
60
 xxx xxx xxx
The facts of the case on record are as follows:
Private respondent Leticia Tupasi-Valenzuela opened
Savings Account No. 5744 and Current Account No.
01016-3 in the Valenzuela Branch of petitioner
Prudential Bank, with automatic transfer of funds from
the savings account to the current account.
On June 1, 1988, herein private respondent deposited in
her savings account Check No. 666B (104561 of even
date) the amount of P35,271.60, drawn against the
Philippine Commercial International Bank (PCIB).
Taking into account that deposit and a series of
withdrawals, private respondent as of June 21, 1988 had
a balance of P35,993.48 in her savings account and
P776.93 in her current account, or total deposits of
P36,770.41, with petitioner.
Thereafter, private respondent issued Prudential Bank
Check No. 983395 in the amount of P11,500.00 post-
dated June 20, 1988, in favor of one Belen Legaspi. It
was issued to Legaspi as payment for jewelry which
private respondent had purchased. Legaspi, who was
in jewelry trade, endorsed the check to one Philip
Lhuillier, a businessman also in the jewelry business.
When Lhuillier deposited the check in his account with
the PCIB, Pasay Branch, it was dishonored for being
drawn against insufficient funds. Lhuillier's secretary
informed the secretary of Legaspi of the dishonor. The
latter told the former to redeposit the check. Legaspi's
secretary tried to contact private respondent but to no
avail.
Upon her return from the province, private respondent
was surprised to learn of the dishonor of the check. She
went to the Valenzuela Branch of Prudential Bank on
July 4, 1988, to inquire why her check was dishonored.
She approached one Albert Angeles Reyes, the officer in
charge of current account, and requested him for the
ledger of her current account. Private respondent
discovered a debit of P300.00 penalty for the dishonor
of her Prudential Check No. 983395. She asked why her
check was dishonored when there were sufficient funds
in her account as reflected in her passbook. Reyes told
her that there was no need to review the passbook
because the bank ledger was the best proof that she did
not have sufficient funds. Then, he abruptly faced his
typewriter and started typing.
Later, it was found out that the check in the amount of
P35,271.60 deposited by private respondent on June 1,
1988, was credited in her savings account only on June
24, 1988, or after a period of 23 days. Thus the
P11,500.00 check was redeposited by Lhuillier on June
24, 1988, and properly cleared on June 27, 1988.
Because of this incident, the bank tried to mollify
private respondent by explaining to Legaspi and
Lhuillier that the bank was at fault. Since this was not
the first incident private respondent had experienced
61
with the bank, private respondent was unmoved by the
bank's apologies and she commenced the present suit
for damages before the RTC of Valenzuela.
After trial, the court rendered a decision on August 30,
1991, dismissing the complaint of private respondent,
as well as the counterclaim filed by the defendant, now
petitioner.
xxx xxx xxx
Simply stated, the issue is whether the respondent court
erred and gravely abused its discretion in awarding
moral and exemplary damages and attorney's fees to be
paid by petitioner to private respondent.
Petitioner claims that generally the factual findings of
the lower courts are final and binding upon this Court.
However, there are exceptions to this rule. One is where
the trial court and the Court of Appeals had arrived at
diverse factual findings. Petitioner faults the
respondent court from deviating from the basic rule
that finding of facts by the trial court is entitled to great
weight, because the trial court had the opportunity to
observe the deportment of witness and the evaluation
of evidence presented during the trial. Petitioner
contends that the appellate court gravely abused its
discretion when it awarded damages to the plaintiff,
even in the face of lack of evidence to prove such
damages, as found by the trial court.
Firstly, petitioner questions the award of moral
damages. It claims that private respondent did not
suffer any damage upon the dishonor of the check.
Petitioner avers it acted in good faith. It was an honest
mistake on its part, according to petitioner, when
misposting of private respondent's deposit on June 1,
1988, happened. Further, petitioner contends that
private respondent may not "claim" damages because
the petitioner's manager and other employees had
profusely apologized to private respondent for the
error. They offered to make restitution and apology to
the payee of the check, Legaspi, as well as the alleged
endorsee, Lhuillier. Regrettably, it was private
respondent who declined the offer and allegedly said,
that there was nothing more to it, and that the matter
had been put to rest.
Admittedly, as found by both the respondent appellate
court and the trial court, petitioner bank had committed
a mistake. It misposted private respondent's check
deposit to another account and delayed the posting of
the same to the proper account of the private
respondent. The mistake resulted to the dishonor of the
private respondent's check. The trial court found "that
the misposting of plaintiff's check deposit to another
account and the delayed posting of the same to the
account of the plaintiff is a clear proof of lack of
supervision on the part of the defendant bank."
Similarly, the appellate court also found that "while it
may be true that the bank's negligence in dishonoring
the properly funded check of appellant might not have
been attended with malice and bad faith, as appellee
[bank] submits, nevertheless, it is the result of lack of
due care and caution expected of an employee of a firm
engaged in so sensitive and accurately demanding task
as banking.”
In Simex International (Manila), Inc. vs. Court of Appeals,
183 SCRA 360, 367 (1990), and Bank of Philippine Islands
vs. IAC, et al., 206 SCRA 408, 412-413 (1992), this Court
had occasion to stress the fiduciary nature of the
relationship between a bank and its depositors and the
extent of diligence expected of the former in handling
the accounts entrusted to its care, thus:
"In every case, the depositor expects
the bank to treat his account with the
utmost fidelity, whether such account
consists only of a few hundred pesos
or of millions. The bank must record
every single transaction accurately,
down to the last centavo, and as
promptly as possible. This has to be
done if the account is to reflect at any
given time the amount of money the
depositor can dispose of as he sees fit,
confident that the bank will deliver it
as and to whomever he directs. A
blunder on the part of bank, such as
the dishonor of a check without good
reason, can cause the depositor not a
little embarrassment if not also
financial loss and perhaps even civil
and criminal litigation.
The point is that as a business
affected with public interest and
because of the nature of its functions,
the bank is under obligation to treat
the accounts of its depositors with
meticulous care, always having in
mind the fiduciary nature of their
relationship. . . ."
In the recent case of Philippine National Bank vs. Court of
Appeals, we held that "a bank is under obligation to
treat the accounts of its depositors with meticulous care
whether such account consists only of a few hundred
pesos or of millions of pesos. Responsibility arising
from negligence in the performance of every kind of
obligation is demandable. While petitioner's negligence
in this case may not have been attended with malice
and bad faith, nevertheless, it caused serious anxiety,
embarrassment and humiliation." Hence we ruled that
the offended party in said case was entitled to recover
reasonable moral damages.
Even if malice or bad faith was not sufficiently proved
in the instant case, the fact remains that petitioner has
committed a serious mistake. It dishonored the check
issued by the private respondent who turned out to
have sufficient funds with petitioner. The bank's
negligence was the result of lack of due care and
caution required of managers and employees of a firm
engaged in so sensitive and demanding business as
banking. Accordingly, the award of moral damages by
the respondent Court of Appeals could not be said to be
in error nor in grave abuse of its discretion.
There is no hard-and-fast rule in the determination of
what would be a fair amount of moral damages since
each case must be governed by its own peculiar facts.
The yardstick should be that it is not palpably and
scandalously excessive. In our view, the award of
P100,000.00 is reasonable, considering the reputation
and social standing of private respondent Leticia T.
Valenzuela.
The law allows the grant of exemplary damages by way
of example for the public good. The public relies on the
banks' sworn profession of diligence and
meticulousness in giving irreproachable service. The
level of meticulousness must be maintained at all times
by the banking sector. Hence, the Court of Appeals did
not err in awarding exemplary damages. In our view,
however, the reduced amount of P20,000.00 is more
appropriate.
The award of attorney's fees is also proper when
exemplary damages are awarded and since private
respondent was compelled to engage the services of a
lawyer and incurred expenses to protect her interest. 11
The standards in fixing attorney's fees are: (1) the
amount and the character of the services rendered; (2)
labor, time and trouble involved; (3) the nature and
importance of the litigation and business in which the
services were rendered; (4) the responsibility imposed;
(5) the amount of money and the value of the property
affected by the controversy or involved in the
employment; (6) the skill and the experience called for
in the performance of the services; (7) the professional
character and the social standing of the attorney; (8) the
results secured, it being a recognized rule that an
attorney may properly charge a much larger fee when it
is contingent than when it is not. 12 In this case, all the
aforementioned weighed, and considering that the
amount involved in the controversy is only P36,770.41,
the total deposit of private respondent which was
misposted by the bank, we find the award of
respondent court of P50,000.00 for attorney's fees,
excessive and reduce the same to P30,000.00.
WHEREFORE, the assailed DECISION of the Court of
Appeals is hereby AFFIRMED, with MODIFICATION.
The petitioner is ordered to pay P100,000.00 by way of
moral damages in favor of private respondent Leticia T.
Valenzuela. It is further ordered to pay her exemplary
damages in the amount of P20,000.00 and P30,000.00,
attorney's fees.
Costs against petitioner.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
62

b. Negligence as proximate cause
VDA. DE BATACLAN, ET AL. vs. MEDINA
G.R. No. L-10126, 22 October 1957, 102 Phil. 181
MONTEMAYOR, J p:
Shortly after midnight, on September 13, 1952, bus No.
30 of the Medina Transportation, operated by its owner,
defendant Mariano Medina, under a certificate of
public convenience, left the town of Amadeo, Cavite, on
its way to Pasay City, driven by its regular chauffeur,
Conrado Saylon. There were about eighteen passengers,
including the driver and conductor. Among the
passengers were Juan Bataclan, seated beside and to the
right of the driver, Felipe Lara, seated to the right of
Bataclan, another passenger apparently from the
Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated on the left
side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned.
At about 2 :00 o'clock that same morning, while the bus
was running within the jurisdiction of Imus, Cavite, one
of the front tires burst and the vehicle began to zig-zag
until it fell into a canal or ditch on the right side of the
road and turned turtle. Some of the passengers
managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them
named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they had
clambered up to the road, heard groans and moans
from inside the bus, particularly, shouts for help from
Bataclan and Lara, who said that they could not get out
of the bus. There, is nothing in the evidence to show
whether or not the passengers already free from the
wreck, including the driver and the conductor, made
any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or
shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men,
one of them carrying a lighted torch made of bamboo
with a wick on one end, evidently fueled with
petroleum. These men presumably approached the
overturned bus, and almost immediately, a fierce fire
started, burning and all but consuming the bus,
including the four passengers trapped inside it. It
would appear that as the bus overturned, gasoline
began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the
body of the bus and the ground under and around it,
and that the lighted torch brought by one of the men
who answered the call for help set it on fire.
That same day, the charred bodies of the four doomed
passengers inside the bus were removed and duly
identified, specially that of Juan Bataclan. By reason of
63
his death, his widow, Salud Villanueva, in her name
and in behalf of her five minor children, brought the
present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After
trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs, plus P600 as attorney's fee, plus
P100, the value of the merchandise being carried by
Bataclan to Pasay City for sale and which was lost in
the fire. The plaintiffs and the defendants appealed the
decision to the Court of Appeals, but the latter court
endorsed the appeal to us because of the value involved
in the claim in the complaint.
Our New Civil Code amply provides for the
responsibility of a common carrier to its passengers and
their goods. For purposes of reference, we are
reproducing the pertinent codal provisions:
“ART. 1733. Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to all the circumstances of
each case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in articles 1734, 1735, and
1745, Nos. 5, 6, and 7 while the
extraordinary diligence for the safety
of the passengers is further set forth
in articles 1755 and 1756."
"ART. 1755. A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with a due regard for all the
circumstances."
"ART. 1756. In case of death of
or injuries to passengers, common
carriers are presumed to have been at
fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed
in articles 1733 and 1755."
"ART. 1759. Common carriers
are liable for the death of or injuries
to passengers through the negligence
or wilful acts of the former's
employees, although such employees
may have acted beyond the scope of
their authority or in violation of the
orders of the common carriers.
 This liability of the common carriers
does not cease upon proof that they
exercised all the diligence of a good
father of a family in the selection and
supervision of their employees."
"ART. 1763. A common carrier
is responsible for injuries suffered by
a passenger on account of the wilful
acts or negligence of other passengers
or of strangers, if the common
carrier's employees through the
exercise of the diligence of a good
father of a family could have
prevented or stopped the act or
omission."
We agree with the trial court that the case involves a
breach of contract of transportation for hire, the Medina
Transportation having undertaken to carry Bataclan
safely to his destination, Pasay City. We also agree with
the trial court that there was negligence on the part of
the defendant, through his agent, the driver Saylon.
There is evidence to show that at the time of the blow
out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to
the testimony of the witnesses, including that of the
defense, from the point where one of the front tires
burst up to the canal where the bus overturned after
zig-zagging, there was a distance of about 150 meters.
The chauffeur, after the blow-out, must have applied
the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters
before it fell into the canal and turned turtle.
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to what
degree. The trial court was of the opinion that the
proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned
the bus, including himself and his co-passengers who
were unable to leave it; that at the time the fire started,
Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so
damages were awarded, not for his death, but for the
physical injuries suffered by him. We disagree. A
satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American Jurisprudence,
cited by plaintiffs-appellants in their brief. It is as
follows:
". . . 'that cause, which, in natural and
continuous sequence, unbroken by
any efficient intervening cause,
produces the injury, and without
which the result would not have
occurred.' And more
comprehensively, 'the proximate
legal cause is that acting first 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 final event in the
chain immediately effecting the
injury as a natural and probable
result of the cause which first acted,
under such circumstances that the
person responsible for the first 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."
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 fire, say, by lightning, or if some highwaymen after
looting the vehicle sets it on fire, and the passenger is
burned to death, one might still contend that the
proximate cause of his death was the fire 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 flashlights 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 a natural
sequence of the overturning of the bus, the trapping of
some of its passengers and the call for outside help.
What is more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through its
driver and its conductor. According to the witnesses,
the driver and the conductor were on the road walking
back and forth. They, or at least, the driver should and
must have known that in the position in which the
overturned bus was, gasoline could and must have
leaked from the gasoline tank and soaked the area in
and around the bus, this aside from the fact that
gasoline when spilled, specially over a large area, can
be smelt and detected even from a distance, and yet
neither the driver nor the conductor would appear to
have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come
64
under the codal provisions above- reproduced,
particularly, Articles 1733, 1759 and 1763.
xxx xxx xxx
In view of the foregoing, with the modification that the
damages awarded by the trial court are increased from
ONE THOUSAND (P1,000) PESOS to SIX THOUSAND
(P6,000) PESOS, and from SIX HUNDRED PESOS TO
EIGHT HUNDRED (P800) PESOS, for the death of
Bataclan and for attorney's fees, respectively, the
decision appealed from is hereby affirmed, with costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista
Angelo, Labrador, Concepcion., Reyes, J. B. L.,
Endencia and Felix, JJ., concur.
UMALI vs. BACANI, ET AL.
G.R. No. L-40570, 30 January 1976.
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:
xxx xxx xxx
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
65
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 notified him right then and there
of the broken line and asked him to
fix 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 fixed 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.
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 flow 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.
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 defined 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 find any sufficient 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.
BACARRO, ET AL. vs. CASTAÑO, ET AL.
G.R. No. L-34597, 5 November 1982.
RELOVA, J p:
Appeal taken by petitioners from a decision of the
Court of Appeals, affirming that of the Court of First
Instance of Misamis Occidental, the dispositive portion
of which reads:
"WHEREFORE, judgment is hereby
rendered, ordering the defendants to
jointly and severally pay to the
plaintiff the sum of (1) P973.10 for
medical treatment and
hospitalization; (2)P840.20 for loss of
salary during treatment; and (3)
P2,000.00 for partial permanent
deformity, with costs against the
defendants."
The facts are set forth in the decision of the Court of
Appeals, from which We quote:
" . . . In the afternoon of April 1, 1960,
he (appellee) boarded the said jeep as
a paying passenger at Oroquieta
bound for Jimenez, Misamis
66
 Occidental. It was then filled to
capacity, with twelve (12) passengers
in all. 'The jeep was running quite
fast and the jeep while approaching
the (Sumasap) bridge there was a
cargo truck which blew its horn for a
right of way. The jeep gave way but
did not change speed. . . . When the
jeep gave way it turned in the right
and continued running with the same
speed. In so doing . . . the driver was
not able to return the jeep to the
proper place . . . instead, it ran
obliquely towards the canal; that is
why, we fell to the ditch. . . . When
the jeep was running in the side of
the road for few meters, naturally, the
jeep was already inclined and two
passengers beside me were the ones
who pushed me. I was pushed by the
two passengers beside me; that is
why, when I was clinging, my leg
and half of my body were outside the
jeep when it reached the canal . . . My
right leg was sandwiched by the
body of the jeep and the right side of
the ditch. . . . My right leg was
broken.' He was rushed to the Saint
Mary's Hospital where he stayed for
about two (2) months. 'My right leg is
now shorter by one and one-half
inches causing me to use specially
made shoes. . . . I could not squat for
a long time; I could not kneel for a
long time; and I could not even sit for
a long time because I will suffer
cramp. . . . With my three fingers I am
still uneasy with my three fingers in
my right hand. There is a feeling of
numbness with my three fingers even
right now.'
xxx xxx xxx
"From appellee's version just set out,
it appears that after he boarded the
jeep in question at Oroquieta, it was
driven by defendant Montefalcon at
around forty (40) kilometers per hour
bound for Jimenez; that while
approaching Sumasap Bridge at the
said speed, a cargo truck coming
from behind blew its horn to signal
its intention to overtake the jeep; that
the latter, without changing its speed,
gave way by swerving to the right,
such that both vehicles ran side by
side for a distance of around twenty
(20) meters, and that thereafter as the
jeep was left behind, its driver was
unable to return it to its former lane
and instead it obliquely or diagonally
67
ran down an inclined terrain towards
the right until it fell into a ditch
pinning down and crushing
appellee's right leg in the process.
"Throwing the blame for this accident
on the driver of the cargo truck,
appellants, in turn, state the facts to
be as follows:
'In the afternoon of April 1,
1960, plaintiff Gerundio
Castaño boarded the said
jeepney at Oroquieta bound for
Jimenez, Misamis Occidental.
While said jeepney was
negotiating the upgrade
approach of the Sumasap
Bridge at Jimenez, Misamis
Occidental and at a distance of
about 44 meters therefrom, a
cargo truck, owned and
operated by a certain Te Tiong
alias Chinggim, then driven by
Nicostrato Digal, a person not
duly licensed to drive motor
vehicles, overtook the jeepney
so closely that in the process of
overtaking sideswiped the
jeepney, hitting the reserve tire
place at the left side of the
jeepney with the hinge or bolt
of the siding of the cargo truck,
causing the jeepney to swerve
from its course and after
running 14 meters from the
road it finally fell into the canal.
The right side of the jeep fell on
the right leg of the plaintiff-
appellee, crushing said leg
against the ditch resulting in
the injury to plaintiff-appellee
consisting of a broken right
thigh.'
and take the following stand: 'The
main defense of defendants-
appellants is anchored on the fact
that the jeepney was sideswiped by
the overtaking cargo truck'
(Appellants' Brief, pp. 3-4, 7).
"It must be admitted, out of candor, that there
is evidence of the sideswiping relied upon by
appellants . . . "
This appeal by certiorari to review the decision of
respondent Court of Appeals asserts that the latter
decided questions of substance which are contrary to
law and the approved decisions of this Court.
Petitioners alleged that respondent Court of Appeals
erred (1) in finding contributory negligence on the part
of jeepney driver appellant Montefalcon for having
raced with the overtaking cargo truck to the bridge
instead of slackening its speeds when the person solely
responsible for the sideswiping is the unlicensed driver
of the overtaking cargo truck; (2) in finding the jeepney
driver not to have exercised extraordinary diligence,
human care, foresight and utmost diligence of very
cautious persons, when the diligence required pursuant
to Article 1763 of the New Civil Code is only that of
good father of a family since the injuries were caused
by the negligence of a stranger; and (3) in not
considering that appellants were freed from any
liability since the accident was due to fortuitous event
— the sideswiping of the jeepney by the overtaking
cargo truck.
We are not persuaded. The fact is, petitioner-driver
Montefalcon did not slacken his speed but instead
continued to run the jeep at about forty (40) kilometers
per hour even at the time the overtaking cargo truck
was running side by side for about twenty (20) meters
and at which time he even shouted to the driver of the
truck. Hereunder is the testimony of private respondent
Gerundio B. Castaño on this point:
xxx xxx xxx
Thus, had Montefalcon slackened the speed of the jeep
at the time the truck was overtaking it, instead of
running side by side with the cargo truck, there would
have been no contact and accident. He should have
foreseen that at the speed he was running, the vehicles
were getting nearer the bridge and as the road was
getting narrower the truck would be too close to the
jeep and would eventually sideswipe it. Otherwise
stated, he should have slackened his jeep when he
swerved it to the right to give way to the truck because
the two vehicles could not cross the bridge at the same
time.
The second assigned error is centered on the alleged
failure on the part of the jeepney driver to exercise
extraordinary diligence, human care, foresight and
utmost diligence of a very cautious person, when the
diligence required pursuant to Article 1763 of the Civil
Code is only that of a good father of a family.
Petitioners contend that the proximate cause of the
accident was the negligence of the driver of the truck.
However, the fact is, there was a contract of carriage
between the private respondent and the herein
petitioners in which case the Court of Appeals correctly
applied Articles 1733, 1755 and 1766 of the Civil Code
which require the exercise of extraordinary diligence on
the part of petitioner Montefalcon.
"Art. 1733. Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to all the circumstances of
each case.
"Art. 1755. A common carrier
is bound to carry the passengers
safely as far as human care and
foresight can provide, using the
utmost diligence of very cautious
persons, with a due regard for all the
circumstances.
"Art. 1766. In all matters not
regulated by this Code, the rights and
obligations of common carriers shall
be governed by the Code of
Commerce and by special laws."
Indeed, the hazards of modern transportation demand
extraordinary diligence. A common carrier is vested
with public interest. Under the new Civil Code, instead
of being required to exercise mere ordinary diligence a
common carrier is exhorted to carry the passengers
safely as far as human care and foresight can provide
"using the utmost diligence of very cautious persons."
(Article 1755). Once a passenger in the course of travel
is injured, or does not reach his destination safely, the
carrier and driver are presumed to be at fault.
The third assigned error of the petitioners would find
fault upon respondent court in not freeing petitioners
from any liability, since the accident was due to a
fortuitous event. But, We repeat that the alleged
fortuitous event in this case — the sideswiping of the
jeepney by the cargo truck, was something which could
have been avoided considering the narrowness of
Sumasap Bridge which was not wide enough to admit
two vehicles. As found by the Court of Appeals,
Montefalcon contributed to the occurrence of the
mishap.
WHEREFORE, the decision of the respondent Court of
Appeals, dated September 30, 1971, is hereby
AFFIRMED. With costs.
SO ORDERED.
Melencio-Herrera (Acting Chairman), Plana, Vasquez
and Gutierrez, Jr., JJ., concur.
Teehankee (Chairman), J., is on leave.
PHOENIX CONSTRUCTION, INC., ET AL. vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 65295, 10 March 1987.
FELICIANO, J p:
In the early morning of 15 November 1975— at about
1:30 a.m. — private respondent Leonardo Dionisio was
on his way home — he lived in 1214-B Zamora Street,
Bangkal, Makati — from a cocktails-and-dinner
meeting with his boss, the general manager of a
68
marketing corporation. During the cocktails phase of
the evening, Dionisio had taken "a shot or two" of
liquor. Dionisio was driving his Volkswagen car and
had just crossed the intersection of General Lacuna and
General Santos Streets at Bangkal, Makati, not far from
his home, and was proceeding down General Lacuna
Street, when his car headlights (in his allegation)
suddenly failed. He switched his headlights on "bright"
and thereupon he saw a Ford dump truck looming
some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner
Phoenix Construction Inc. ("Phoenix"), was parked on
the right hand side of General Lacuna Street (i.e., on the
right hand side of a person facing in the same direction
toward which Dionisio's car was proceeding), facing
the oncoming traffic. The dump truck was parked
askew (not parallel to the street curb) in such a manner
as to stick out onto the street, partly blocking the way of
oncoming traffic. There were no lights nor any so-called
"early warning" reflector devices set anywhere near the
dump truck, front or rear. The dump truck had earlier
that evening been driven home by petitioner Armando
U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be
carried out early the following morning. Dionisio
claimed that he tried to avoid a collision by swerving
his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision,
Dionisio suffered some physical injuries including
some permanent facial scars, a "nervous breakdown"
and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the
Court of First Instance of Pampanga basically claiming
that the legal and proximate cause of his injuries was
the negligent manner in which Carbonel had parked
the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's
injuries was his own recklessness in driving fast at the
time of the accident, while under the influence of
liquor, without his headlights on and without a curfew
pass. Phoenix also sought to establish that it had
exercised due care in the selection and supervision of
the dump truck driver.
The trial court rendered judgment in favor of Dionisio
and against Phoenix and Carbonel and ordered the
latter:
xxx xxx xxx
Phoenix and Carbonel appealed to the Intermediate
Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the
award of damages to the following extent:
xxx xxx xxx
This decision of the Intermediate Appellate Court is
now before us on a petition for review.
69
Both the trial court and the appellate court had made
fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew
the inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident and
Dionisio's injuries. We note, however, that both courts
failed to pass upon the defense raised by Carbonel and
Phoenix that the true legal and proximate cause of the
accident was not the way in which the dump truck had
been parked but rather the reckless way in which
Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court
in its questioned decision casually conceded that
Dionisio was "in some way, negligent" but apparently
failed to see the relevance of Dionisio's negligence and
made no further mention of it. We have examined the
record both before the trial court and the Intermediate
Appellate Court and we find that both parties had
placed into the record sufficient evidence on the basis of
which the trial court and the appellate court could have
and should have made findings of fact relating to the
alleged reckless manner in which Dionisio drove his car
that night. The petitioners Phoenix and Carbonel
contend that if there was negligence in the manner in
which the dump truck was parked, that negligence was
merely a "passive and static condition" and that private
respondent Dionisio's recklessness constituted an
intervening, efficient cause determinative of the
accident and the injuries he sustained. The need to
administer substantial justice as between the parties in
this case, without having to remand it back to the trial
court after eleven years, compels us to address directly
the contention put forward by the petitioners and to
examine for ourselves the record pertaining to
Dionisio's alleged negligence which must bear upon the
liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into:
(a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night;
(b) whether Dionisio was driving fast or speeding just
before the collision with the dump truck; (c) whether
Dionisio had purposely turned off his car's headlights
before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before
the collision; and (d) whether Dionisio was intoxicated
at the time of the accident.
As to the first issue relating to the curfew pass, it is
clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any
found in his car. Phoenix's evidence here consisted of
the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident. At
the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of
pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any
curfew pass during the trial. Instead, he offered the
explanation that his family may have misplaced his
curfew pass. He also offered a certification (dated two
years after the accident) issued by one Major Benjamin
N. Libarnes of the Zone Integrated Police Intelligence
Unit of Camp Olivas, San Fernando, Pampanga, which
was said to have authority to issue curfew passes for
Pampanga and Metro Manila. This certification was to
the effect that private respondent Dionisio had a valid
curfew pass. This certification did not, however, specify
any pass serial number or date or period of effectivity
of the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession of
a valid curfew pass during the night of the accident and
that the preponderance of evidence shows that he did
not have such a pass during that night. The relevance of
possession or non-possession of a curfew pass that
night lies in the light it tends to shed on the other
related issues: whether Dionisio was speeding home
and whether he had indeed purposely put out his
headlights before the accident, in order to avoid
detection and possibly arrest by the police in the nearby
police station for travelling after the onset of curfew
without a valid curfew pass.
On the second issue — whether or not Dionisio was
speeding home that night — both the trial court and the
appellate court were completely silent.
The defendants in the trial court introduced the
testimony of Patrolman Cuyno who was at the scene of
the accident almost immediately after it occurred, the
police station where he was based being barely 200
meters away. Patrolman Cuyno testified that people
who had gathered at the scene of the accident told him
that Dionisio's car was "moving fast" and did not have
its headlights on. Dionisio, on the other hand, claimed
that he was travelling at a moderate speed at 30
kilometers per hour and had just crossed the
intersection of General Santos and General Lacuna
Streets and had started to accelerate when his
headlights failed just before the collision took place.
Private respondent Dionisio asserts that Patrolman
Cuyno's testimony was hearsay and did not fall within
any of the recognized exceptions to the hearsay rule
since the facts he testified to were not acquired by him
through official information and had not been given by
the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact
that the testimony of Patrolman Cuyno is admissible
not under the official records exception to the hearsay
rule but rather as part of the res gestae. Testimonial
evidence under this exception to the hearsay rule
consists of excited utterances made on the occasion of
an occurrence or event sufficiently startling in nature so
as to render inoperative the normal reflective thought
processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and
not the result of reflective thought.
We think that an automobile speeding down a street
and suddenly smashing into a stationary object in the
dead of night is a sufficiently startling event as to evoke
spontaneous, rather than reflective, reactions from
observers who happened to be around at that time. The
testimony of Patrolman Cuyno was therefore
admissible as part of the res gestae and should have
been considered by the trial court. Clearly, substantial
weight should have been ascribed to such testimony,
even though it did not, as it could not, have purported
to describe quantitatively the precise velocity at which
Dionisio was travelling just before impact with the
Phoenix dump truck.
A third related issue is whether Dionisio purposely
turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the
accident. The Intermediate Appellate Court expressly
found that the headlights of Dionisio's car went off as
he crossed the intersection but was non-committal as to
why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before
he reached the intersection so as not to be detected by
the police in the police precinct which he (being a
resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a
more credible explanation than that offered by private
respondent Dionisio — i.e., that he had his headlights
on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone
off, although he succeeded in switching his lights on
again at "bright" split seconds before contact with the
dump truck.
A fourth and final issue relates to whether Dionisio was
intoxicated at the time of the accident. The evidence
here consisted of the testimony of Patrolman Cuyno to
the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car
and brought to the Makati Medical Center in an
unconscious condition. This testimony has to be taken
in conjunction with the admission of Dionisio that he
had taken "a shot or two" of liquor before dinner with
his boss that night. We do not believe that this evidence
is sufficient to show that Dionisio was so heavily under
the influence of liquor as to constitute his driving a
motor vehicle per se an act of reckless imprudence.
There simply is not enough evidence to show how
much liquor he had in fact taken and the effects of that
upon his physical faculties or upon his judgment or
mental alertness. We are also aware that "one shot or
two" of hard liquor may affect different people
differently.
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.
70
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.
The petitioners, however, urge that the truck driver's
negligence was merely a "passive and static condition"
and that private respondent Dionisio's negligence was
an "efficient intervening cause," and that consequently
Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the
older cases in various jurisdictions in the United States
but we are unable to persuade ourselves that these
arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the
petitioners would have us adopt have already been
"almost entirely discredited." Professors Prosser and
Keeton make this quite clear:
"Cause and condition. Many courts
have sought to distinguish between
the active "cause" of the harm and the
existing "conditions" upon which that
cause operated. If the defendant has
created only a passive static condition
which made the damage possible, the
defendant is said not to be liable. But
so far as the fact of causation is
concerned, in the sense of necessary
antecedents which have played an
important part in producing the
result, it is quite impossible to
distinguish between active forces and
passive situations, particularly since,
as is invariably the case, the latter are
the result of other active forces which
have gone before. The defendant who
spills gasoline about the premises
creates a "condition," but the act may
be culpable because of the danger of
fire. When a spark ignites the
gasoline, the condition has done quite
as much to bring about the fire as the
spark; and since that is the very risk
which the defendant has created, the
defendant will not escape
responsibility. Even the lapse of a
considerable time during which the
"condition" remains static will not
necessarily affect liability; one who
71
digs a trench in the highway may still
be liable to another who falls into it a
month afterward. "Cause" and
"condition" still find occasional
mention in the decisions; but the
distinction is now almost entirely
discredited. So far as it has any
validity at all, it must refer to the type
of case where the forces set in
operation by the defendant have
come to rest in a position of apparent
safety, and some new force
intervenes. But even in such cases, it
is not the distinction between "cause"
and "condition" which is important,
but the nature of the risk and the
character of the intervening cause."
We believe, secondly, that the truck driver's negligence
far from being a "passive and static condition" was
rather an indispensable and efficient 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 reflector 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 efficient intervening
or independent cause. What the petitioners describe 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. It is
helpful to quote once more from Prosser and Keeton:
"Foreseeable Intervening Causes. If
the intervening cause is one which in
ordinary human experience is
reasonably to be anticipated, or one
which the defendant has reason to
anticipate under the particular
circumstances, the defendant may be
negligent, among other reasons,
because of failure to guard against it;
or the defendant may be negligent
only for that reason. Thus one who
sets a fire may be required to foresee
that an ordinary, usual and
customary wind arising later will
spread it beyond the defendant's own
property, and therefore to take
 precautions to prevent that event.
The person who leaves the
combustible or explosive material
exposed in a public place may foresee
the risk of fire from some
independent source. . . . In all of these
cases there is an intervening cause
combining with the defendant's
conduct to produce the result, and in
each case the defendant's negligence
consists in failure to protect the
plaintiff against that very risk.
Obviously the defendant cannot be
relieved from liability by the fact that
the risk or a substantial and
important part of the risk, to which
the defendant has subjected the
plaintiff has indeed come to pass.
Foreseeable intervening forces are
within the scope of the original risk,
and hence of the defendant's
negligence. The courts are quite
generally agreed that intervening
causes which fall fairly in this
category will not supersede the
defendant's responsibility.
Thus it has been held that a
defendant will be required to
anticipate the usual weather of the
vicinity, including all ordinary forces
of nature such as usual wind or rain,
or snow or frost or fog or even
lightning; that one who leaves an
obstruction on the road or a railroad
track should foresee that a vehicle or
a train will run into it; . . . .
The risk created by the defendant
may include the intervention of the
foreseeable negligence of others. . . .
[T]he standard of reasonable conduct
may require the defendant to protect
the plaintiff against `that occasional
negligence which is one of the
ordinary incidents of human life, and
therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk
and forces the plaintiff to walk in a
street where the plaintiff will be
exposed to the risks of heavy traffic
becomes liable when the plaintiff is
run down by a car, even though the
car is negligently driven; and one
who parks an automobile on the
highway without lights at night is not
relieved of responsibility when
another negligently drives into it. ---"
We hold that private respondent Dionisio's negligence
was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck
driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such
damages are subject to mitigation by the courts (Article
2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the
"last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was
negligent, private respondent Dionisio had the "last
clear chance" of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that
"last clear chance" must bear his own injuries alone. The
last clear chance doctrine of the common law was
imported into our jurisdiction by Picart vs. Smith but it
is a matter for debate whether, or to what extent, it has
found its way into the Civil Code of the Philippines.
The historical function of that doctrine in the common
law was to mitigate the harshness of another common
law doctrine or rule — that of contributory negligence.
The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was
also negligent, even if the plaintiff's negligence was
relatively minor as compared with the wrongful act or
omission of the defendant. The common law notion of
last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the
defendant had the last clear chance to avoid the
casualty and failed to do so. Accordingly, it is difficult
to see what role, if any, the common law last clear
chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an
absolute bar to recovery by the plaintiff, has itself been
rejected, as it has been in Article 2179 of the Civil Code
of the Philippines.
Is there perhaps a general concept of "last clear chance"
that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil
law jurisdiction like ours? We do not believe so. Under
Article 2179, the task of a court, in technical terms, is to
determine whose negligence — the plaintiff's or the
defendant's — was the legal or proximate cause of the
injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in
the continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only one of
the relevant factors that may be taken into account. Of
more fundamental importance are the nature of the
negligent act or omission of each party and the
character and gravity of the risks created by such act or
omission for the rest of the community. The petitioners
urge that the truck driver (and therefore his employer)
should be absolved from responsibility for his own
prior negligence because the unfortunate plaintiff failed
to act with that increased diligence which had become
necessary to avoid the peril precisely created by the
truck driver's own wrongful act or omission. To accept
this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond
72
for the foreseeable consequences of his own negligent
act or omission. Our law on quasi-delicts seeks to reduce
the risks and burdens of living in society and to allocate
them among the members of society. To accept the
petitioners' proposition must tend to weaken the very
bonds of society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his employer
Phoenix in supervising its employees properly and
adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver
to bring the dump truck to his home whenever there
was work to be done early the following morning,
when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the
dump truck is parked when away from company
premises, is an affirmative showing of culpa in vigilando
on the part of Phoenix.
Turning to the award of damages and taking into
account the comparative negligence of private
respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, we believe
that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus,
20% of the damages awarded by the respondent
appellate court, except the award of P10,000.00 as
exemplary damages and P4,500.00 as attorney's fees
and costs, shall be borne by private respondent; only
the balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarily liable
therefor to the former. The award of exemplary
damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. We see no
sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate
court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and
moral damages private respondent Dionisio is entitled
to by 20% of such amount. Costs against the petitioners.
SO ORDERED.
Yap, Narvasa, Cruz, Gancayco and Sarmiento, JJ .,
concur.
SMITH BELL AND COMPANY (PHILIPPINES),
INC., ET AL. vs. THE COURT OF APPEALS, ET AL.
G.R. No. 56294, 20 May 1991, 197 SCRA 201
FELICIANO, J p:
In the early morning of 3 May 1970 — at exactly 0350
hours, on the approaches to the port of Manila near
Caballo Island, a collision took place between the M/V
"Don Carlos," an inter-island vessel owned and
73
operated by private respondent Carlos A. Go Thong
and Company ("Go Thong"), and the M/S "Yotai
Maru," a merchant vessel of Japanese registry. The
"Don Carlos" was then sailing south bound leaving the
port of Manila for Cebu, while the "Yotai Maru" was
approaching the port of Manila, coming in from Kobe,
Japan. The bow of the "Don Carlos" rammed the
portside (left side) of the "Yotai Maru" inflicting a three
(3) cm. gaping hole on her portside near Hatch No. 3,
through which seawater rushed in and flooded that
hatch and her bottom tanks, damaging all the cargo
stowed therein.
The consignees of the damaged cargo got paid by their
insurance companies. The insurance companies in turn,
having been subrogated to the interests of the
consignees of the damaged cargo, commenced actions
against private respondent Go Thong for damages
sustained by the various shipments in the then Court of
First Instance of Manila.
Two (2) cases were filed in the Court of First Instance of
Manila. The first case, Civil Case No. 82567, was
commenced or 13 March 1971 by petitioner Smith Bell
and Company (Philippines), Inc. and Sumitomo Marine
and Fire Insurance Company Ltd., against private
respondent Go Thong, in Branch 3, which was presided
over by Judge Bernardo P. Fernandez. The second case,
Civil Case No. 82556, was filed on 15 March 1971 by
petitioners Smith Bell and Company (Philippines), Inc.
and Tokyo Marine and Fire Insurance Company, Inc.
against private respondent Go Thong in Branch 4,
which was presided over by then Judge, later Associate
Justice of this Court, Serafin R. Cuevas.
Civil Cases Nos. 82567 (Judge Fernandez) and 82556
(Judge Cuevas) were tried under the same issues and
evidence relating to the collision between the "Don
Carlos" and the "Yotai Maru" the parties in both cases
having agreed that the evidence on the collision
presented in one case would be simply adopted in the
other. In both cases, the Manila Court of First Instance
held that the officers and crew of the "Don Carlos" had
been negligent, that such negligence was the proximate
cause of the collision and accordingly held respondent
Go Thong liable for damages to the plaintiff insurance
companies. Judge Fernandez awarded the insurance
companies P19,889.79 with legal interest plus P3,000.00
as attorney's fees; while Judge Cuevas awarded the
plaintiff insurance companies on two (2) claims
US$68,640.00 or its equivalent in Philippine currency
plus attorney's fees of P30,000.00, and P19,163.02 plus
P5,000.00 as attorney's fees, respectively.
The decision of Judge Fernandez in Civil Case No.
82567 was appealed by respondent Go Thong to the
Court of Appeals, and the appeal was there docketed as
C.A.-G.R. No. 61320-R. The decision of Judge Cuevas in
Civil Case No. 82556 was also appealed by Go Thong to
the Court of Appeals, the appeal being docketed as
C.A.-G.R. No. 61206-R. Substantially identical
assignments of errors were made by Go Thong in the
two (2) appealed cases before the Court of Appeals.
In C.A.-G.R. No. 61320-R, the Court of Appeals through
Reyes, L.B., J., rendered a Decision on 8 August 1978
affirming the Decision of Judge Fernandez. Private
respondent Go Thong moved for reconsideration,
without success. Go Thong then went to the Supreme
Court on Petition for Review, the Petition being
docketed as G.R. No. L-48839 ("Carlos A. Go Thong and
Company v. Smith Bell and Company [Philippines],
Inc., et al."). In its Resolution dated 6 December 1978,
this Court, having considered "the allegations, issues
and arguments adduced in the Petition for Review on
Certiorari, of the Decision of the Court of Appeals as
well as respondent's comment", denied the Petition for
lack of merit. Go Thong filed a Motion for
Reconsideration; the Motion was denied by this Court
on 24 January 1979.
In the other (Cuevas) case, C.A.-G.R. No. 61206-R, the
Court of Appeals, on 26 November 1980 (or almost two
[2] years after the Decision of Reyes, L.B., J., in C.A.-
G.R. No. 61320-R, had been affirmed by the Supreme
Court on Petition for Review) through Sison, P.V., J.,
reversed the Cuevas Decision and held the officers of
the "Yotai Maru" at fault in the collision with the "Don
Carlos," and dismissed the insurance companies'
complaint. Herein petitioners asked for reconsideration,
to no avail.
The insurance companies are now before us on Petition
for Review on Certiorari, assailing the Decision of Sison,
P.V., J., in C.A.-G.R. No. 61206-R. Petitioners' principal
contentions are:
xxx xxx xxx
c. that Sison, P.V., J., was in serious and reversible
error in holding that the "Yotai Maru" had been
negligent and at fault in the collision with the "Don
Carlos."
II
In their Petition for Review, petitioners assail the
finding and conclusion of the Sison Decision, that the
"Yotai Maru" was negligent and at fault in the collision,
rather than the "Don Carlos." In view of the conclusions
reached in Part I above, it may not be strictly necessary
to deal with the issue of the correctness of the Sison
Decision in this respect. The Court considers,
nonetheless, that in view of the conflicting conclusions
reached by Reyes, L.B., J., on the one hand, and Sison,
P.V., J., on the other, and since in affirming the Reyes
Decision, the Court did not engage in a detailed written
examination of the question of which vessel had been
negligent, and in view of the importance of the issues of
admiralty law involved, the Court should undertake a
careful review of the record of the case at bar and
discuss those issues in extenso.
The decision of Judge Cuevas in Civil Case No. 82556 is
marked by careful analysis of the evidence concerning
the collision. It is worth underscoring that the findings
of fact of Judge Fernandez in Civil Case No. 82567
(which was affirmed by the Court of Appeals in the
Reyes Decision and by this Court in G.R. No. L-48839)
are just about identical with the findings of Judge
Cuevas. Examining the facts as found by Judge Cuevas,
the Court believes that there are three (3) principal
factors which are constitutive of negligence on the part
of the "Don Carlos," which negligence was the
proximate cause of the collision.
The first of these factors was the failure of the "Don
Carlos" to comply with the requirements of Rule 18 (a)
of the International Rules of the Road ("Rules"), which
provides as follows
"(a) When two power-driven vessels are
meeting end on, or nearly end on, so
as to involve risk of collision, each
shall alter her course to starboard, so
that each may pass on the port side
of the other. This Rule only
applies to cases where vessels
are meeting end on or nearly end
on, in such a manner as to
involve risk of collision, and
does not apply to two vessels
which must, if both keep on their
respective course, pass clear of
each other. The only cases to
which it does apply are when
each of two vessels is end on, or
nearly end on, to the other; in
other words, to cases in which,
by day, each vessel sees the
masts of the other in a line or
nearly in a line with her own;
and by night to cases in which
each vessel is in such a position
as to see both the sidelights of
the other. It does not apply, by
day, to cases in which a vessel
sees another ahead crossing her
own course; or, by night, to cases
where the red light of one vessel
is opposed to the red light of the
other or where the green light of
one vessel is opposed to the
green light of the other or where
a red light without a green light
or a green light without a red
light is seen ahead, or where
both green and red lights are
seen anywhere but ahead."
(Emphasis supplied)
The evidence on this factor was summarized by Judge
Cuevas in the following manner:
74
 "Plaintiffs and defendant's evidence
seem to agree that each vessel made a
visual sighting of each other ten
minutes before the collision which
occurred at 0350. German's version of
the incident that followed, was that
'Don Carlos' was proceeding directly
to [a] meeting [on an] 'end-on or
nearly end-on situation' (Exh. S, page
8). He also testified that 'Yotai Maru's'
headlights were 'nearly in line at 0340
A.M.' (t.s.n, June 6, 1974) clearly
indicating that both vessels were sailing
on exactly opposite paths (t.s.n. June 6,
1974, page 56). Rule 18 (a) of the
International Rules of the Road
provides as follows:
xxx xxx xxx
And yet German altered 'Don Carlos'
course by five degrees to the left at 0343
hours instead of to the right (t.s.n. June
6, 1974, pages 44-45) which maneuver
was the error that caused the collision in
question. Why German did so is likewise
explained by the evidence on record.
'Don Carlos' was overtaking another
vessel, the 'Don Francisco' and was then
at the starboard (right side) of the
aforesaid vessel at 3.40 a.m. It was in the
process of overtaking 'Don Francisco'
that 'Don Carlos' was finally brought
into a situation where he was meeting
end-on or nearly end -on 'Yotai Maru'
thus involving risk of collision. Hence,
German in his testimony before the
Board of Marine Inquiry stated:
'Atty. Chung:
You said in answer to the
cross-examination that you took a
change of course to the left. Why did
you not take a course to the right
instead?
German:
I did not take any course to
the right because the other vessel was
in my mind at the starboard side
following me. Besides, I don't want to
get risk of the Caballo Island (Exh. 2,
pages 209 and 210).'" (Emphasis
supplied).
For her part, the "Yotai Maru" did comply with its
obligations under Rule 18 (a). As the "Yotai Maru"
found herself on an "end-on" or a "nearly end-on"
situation vis-a-vis the "Don Carlos," and as the distance
between them was rapidly shrinking, the "Yotai Maru"
turned starboard (to its right) and at the same time gave
the required signal consisting of one short horn blast.
75
The "Don Carlos" turned to portside (to its left), instead
of turning to starboard as demanded by Rule 18 (a). The
"Don Carlos" also violated Rule 28 (c) for it failed to
give the required signal of two (2) short horn blasts
meaning "I am altering my course to port." When the
"Yotai Maru" saw that the "Don Carlos" was turning to
port, the master of the "Yotai Maru" ordered the vessel
turned "hard starboard" at 3:45 a.m. and stopped her
engines; at about 3:46 a.m. the "Yotai Maru" went "full
astern engine." The collision occurred at exactly 3:50
a.m.
The second circumstance constitutive of negligence on
the part of the "Don Carlos" was its failure to have on
board that night a "proper look-out" as required by
Rule I (B). Under Rule 29 of the same set of Rules, all
consequences arising from the failure of the "Don
Carlos" to keep a "proper look-out" must be borne by
the "Don Carlos." Judge Cuevas' summary of the
evidence said:
"The evidence on record likewise
discloses very convincingly that 'Don
Carlos' did not have a 'look-out'
whose sole and only duty is only to
act as such . . ."
A "proper look-out" is one who has been trained as
such and who is given no other duty save to act as a
look-out and who is stationed where he can see and
hear best and maintain good communication with the
officer in charge of the vessel, and who must, of course,
be vigilant. Judge Cuevas wrote:
"The 'look-out' should have no other
duty to perform. (Chamberlain v.
Ward, 21, N.O.W. 62, U.S. 548, 571).
He has only one duty, that which its
name implies — to keep a 'look-out'.
So a deckhand who has other duties,
is not a proper 'look-out' (Brooklyn
Perry Co. v. U.S., 122, Fed. 696). The
navigating officer is not a sufficient
'look-out' (Larcen B. Myrtle, 44 Fed.
779) — Griffin on Collision, pages
277-278). Neither the captain nor the
[helmsman] in the pilothouse can be
considered to be a 'look-out' within
the meaning of the maritime law. Nor
should he be stationed in the bridge.
He should be as near as practicable to
the surface of the water so as to be
able to see low-lying lights (Griffin on
Collision, page 273).
On the strength of the foregoing authorities, which do
not appear to be disputed even by the defendant, it is
hardly probable that neither German or Leo Enriquez
may qualify as 'look-out' in the real sense of the word."
(Emphases supplied).
In the case at bar, the failure of the "Don Carlos" to
recognize in a timely manner the risk of collision with
the "Yotai Maru" coming in from the opposite direction,
was at least in part due to the failure of the "Don
Carlos" to maintain a proper look-out.
The third factor constitutive of negligence on the part of
the "Don Carlos" relates to the fact that Second Mate
Benito German was, immediately before and during the
collision, in command of the "Don Carlos." Judge
Cuevas summed up the evidence on this point in the
following manner:
"The evidence on record clearly
discloses that 'Don Carlos' was, at the
time of the collision and immediately
prior thereto, under the command of
Benito German, a second mate although
its captain, Captain Rivera, was very
much in the said vessel at the time. The
defendant's evidence appears bereft
of any explanation as to why second
mate German was at the helm of the
aforesaid vessel when Captain Rivera
did not appear to be under any
disability at the time. In this
connection, Article [633] of the Code
of Commerce provides:
'Art. [633] — The second mate shall
take command of the vessel in case of
the inability or disqualification of the
captain and sailing mate, assuming,
in such case, their powers and
liability.'
The fact that second mate
German was allowed to be in
command of 'Don Carlos' and
not the chief or the sailing mate
in the absence of Captain
Rivera, gives rise to no other
conclusion except that said
vessel [had] no chief mate.
Otherwise, the defense
evidence should have at least
explained why it was German,
only a second mate, who was
at the helm of the vessel 'Don
Carlos' at the time of the fatal
collision.
But that is not all. Worst still aside from
German's being only a second mate, is
his apparent lack of sufficient knowledge
of the basic and generally established
rules of navigation. For instance he
appeared unaware of the necessity of
employing a 'look-out' (t.s.n. June 6,
1974, page 27) which is manifest even in
his testimony before the Board of Marine
Inquiry on the same subject (Exh. 2, page
209). There is, therefore, every reasonable
ground to believe that his inability to
grasp actual situation and the
implication brought about by inadequacy
of experience and technical know-how
was mainly responsible and decidedly
accounted for the collision of the vessels
involved in this case . . ." (Emphasis
supplied)
Second Mate German simply did not have the level of
experience, judgment and skill essential for recognizing
and coping with the risk of collision as it presented
itself that early morning when the "Don Carlos,"
running at maximum speed and having just overtaken
the "Don Francisco" then approximately one mile
behind to the starboard side of the "Don Carlos," found
itself head-on or nearly head on vis-a-vis the "Yotai
Maru." It is essential to point out that this situation was
created by the "Don Carlos" itself.
The Court of Appeals in C.A.-G.R. No. 61206-R did not
make any findings of fact which contradicted the
findings of fact made by Judge Cuevas. What Sison,
P.V., J. actually did was to disregard all the facts found
by Judge Cuevas, and discussed above and,
astonishingly, found a duty on the "Yotai Maru" alone
to avoid collision with and to give way to the "Don
Carlos." Sison, P.V., J., wrote:
"At a distance of eight (8) miles and
with ten (10) minutes before the
impact, [Katoh] and Chonabayashi
had ample time to adopt effective
precautionary measures to steer away
from the Philippine vessel,
particularly because both [Katoh] and
Chonabayashi also deposed that at
the time they had first eyesight of the
'Don Carlos' there was still 'no danger
at all' of a collision. Having sighted the
'Don Carlos' at a comparatively safe
distance — 'no danger at all' of a
collision — the Japanese ship should
have observed with the highest diligence
the course and movements of the
Philippine interisland vessel as to enable
the former to adopt such precautions as
will necessarily prevent a collision, or
give way, and in case of a collision, the
former is prima facie at fault. In G.
Urrutia & Co. vs. Baco River Plantation
Co., 26 Phil. 632, the Supreme Court
held:
'Nautical rules require that
where a steamship and sailing
vessel are approaching each
other from opposite directions,
or on intersecting lines, the
steamship, from the moment the
sailing vessel is seen, shall watch
76
 with the highest diligence her
course and movements so as to
enable it to adopt such timely
means of precaution as will
necessarily prevent the two
boats from coming in contact.'
(Emphasis supplied)
At 3:44 p.m., or 4 minutes after first
sighting the 'Don Carlos', or 6
minutes before contact time,
Chonabayashi revealed that the 'Yotai
Maru' gave a one-blast whistle to
inform the Philippine vessel that the
Japanese ship was turning to
starboard or to the right and that
there was no blast or a proper signal
from the 'Don Carlos' (pp. 67-68.
Deposition of Chonabayashi, List of
Exhibits). The absence of a reply signal
from the 'Don Carlos' placed the 'Yotai
Maru' in a situation of doubt as to the
course the Don Carlos' would take. Such
being the case, it was the duty of the
Japanese officers 'to stop, reverse or come
to a standstill' until the course of the
'Don Carlos' has been determined and
the risk of a collision removed (The
Sabine, 21 F (2d) 121, 124, cited in
Standard Vacuum, etc. vs. Cebu
Stevedoring, etc., 5 C.A.R. 2d 853,
861-862) . . ." (Emphasis supplied).
The Court is unable to agree with the view thus taken
by Sison, P.V., J. By imposing an exclusive obligation
upon one of the vessels, the "Yotai Maru," to avoid the
collision, the Court of Appeals not only chose to
overlook all the above facts constitutive of negligence
on the part of the "Don Carlos;" it also in effect used the
very negligence on the part of the "Don Carlos;" to
absolve it from responsibility and to shift that
responsibility exclusively onto the "Yotai Maru" the
vessel which had observed carefully the mandate of
Rule 18 (a). Moreover, G. Urrutia and Company v. Baco
River Plantation Company invoked by the Court of
Appeals seems simply inappropriate and inapplicable.
For the collision in the Urrutia case was between a
sailing vessel, on the one hand, and a power-driven
vessel, on the other; the Rules, of course, imposed a
special duty on the power-driven vessel to watch the
movements of a sailing vessel, the latter being
necessarily much slower and much less maneuverable
than the power-driven one. In the case at bar, both the
"Don Carlos" and the "Yotai Maru" were power-driven
and both were equipped with radar; the maximum
speed of the "Yotai Maru" was thirteen (13) knots while
that of the "Don Carlos" was eleven (11) knots.
Moreover, as already noted, the "Yotai Maru" precisely
took last minute measures to avert collision as it saw
the "Don Carlos" turning to portside: the "Yotai Maru"
turned "hard starboard" and stopped its engines and
then put its engines "full astern."
77
Thus, the Court agrees with Judge Cuevas (just as it
had agreed with Reyes, L.B., J.), with Judge Fernandez
and Nocon, J., that the "Don Carlos" had been negligent
and that its negligence was the sole proximate cause of
the collision and of the resulting damages.
FOR ALL THE FOREGOING, the Decision of the Court
of Appeals dated 26 November 1980 in C.A.-G.R. No.
61206-R is hereby REVERSED and SET ASIDE. The
decision of the trial court dated 22 September 1975 is
hereby REINSTATED and AFFIRMED in its entirety.
Costs against private respondent.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
FERNANDO vs. COURT OF APPEALS, ET AL.
G.R. No. 92087, 8 May 1992, 208 SCRA 714
MEDIALDEA, J p:
This is a petition for review on certiorari praying that
the amended decision of the Court of Appeals dated
January 11, 1990 in CA-G.R. No. C.V. 04846, entitled
"Sofia Fernando, etc., et al. v. The City of Davao," be
reversed and that its original decision dated January 31,
1986 be reinstated subject to the modification sought by
the petitioners in their motion for partial
reconsideration dated March 6, 1986.
The antecedent facts are briefly narrated by the trial
court, as follows:
"From the evidence presented we see the following
facts: On November 7, 1975, Bibiano Morta, market
master of the Agdao Public Market filed a requisition
request with the Chief of Property of the City
Treasurer's Office for the re-emptying of the septic tank
in Agdao. An invitation to bid was issued to Aurelio
Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo
and Antonio Suñer, Jr. Bascon won the bid. On
November 26, 1975 Bascon was notified and he signed
the purchase order. However, before such date,
specifically on November 22, 1975, bidder Bertulano
with four other companions namely Joselito Garcia,
William Liagoso, Alberto Fernando and Jose Fajardo, Jr.
were found dead inside the septic tank. The bodies
were removed by a fireman. One body, that of Joselito
Garcia, was taken out by his uncle, Danilo Garcia and
taken to the Regional Hospital but he expired there. The
City Engineer's office investigated the case and learned
that the five victims entered the septic tank without
clearance from it nor with the knowledge and consent
of the market master. In fact, the septic tank was found
to be almost empty and the victims were presumed to
be the ones who did the re-emptying. Dr. Juan Abear of
the City Health Office autopsied the bodies and in his
reports, put the cause of death of all five victims as
`asphyxia' caused by the diminution of oxygen supply
in the body working below normal conditions. The
lungs of the five victims burst, swelled in hemorrhagic
areas and this was due to their intake of toxic gas,
which, in this case, was sulfide gas produced from the
waste matter inside the septic tank." (p. 177, Records).
On August 28, 1984, the trial court rendered a decision,
the dispositive portion of which reads:
"IN VIEW OF THE FOREGOING,
this case is hereby DISMISSED
without pronouncement as to costs.
"SO ORDERED." (Records, p. 181)
From the said decision, the petitioners appealed to the
then Intermediate Appellate Court (now Court of
Appeals). On January 3, 1986, the appellate court issued
a decision, the dispositive portion of which reads:
xxx xxx xxx
Hence, this petition raising the following issues for
resolution:
"1. Is the respondent Davao City guilty of negligence
in the case at bar?
"2. If so, is such negligence the immediate and
proximate cause of deaths of the victims hereof?"
(p. 73, Rollo)
Negligence has been defined 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 (Corliss v. Manila Railroad
Company, L-21291, March 28, 1969, 27 SCRA 674, 680).
Under the law, a person who by his omission causes
damage to another, there being negligence, is obliged to
pay for the damage done (Article 2176, New Civil
Code). As to what would constitute a negligent act in a
given situation, the case of Picart v. Smith (37 Phil. 809,
813) provides Us the answer, to wit:
"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
pater familias 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 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 provision, 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 sufficiently probable to warrant his
foregoing the conduct or guarding
against its consequences."(Emphasis
supplied)
To be entitled to damages for an injury resulting from
the negligence of another, a claimant must establish the
relation between the omission and the damage. He
must prove under Article 2179 of the New Civil Code
that the defendant's negligence was the immediate and
proximate cause of his injury. Proximate cause has been
defined as that cause, which, in natural and continuous
sequence unbroken by any efficient intervening cause,
produces the injury, and without which the result
would not have occurred (Vda. de Bataclan, et al. v.
Medina, 102 Phil. 181, 186). Proof of such relation of
cause and effect is not an arduous one if the claimant
did not in any way contribute to the negligence of the
defendant. However, where the resulting injury was the
product of the negligence of both parties, there exists a
difficulty to discern which acts shall be considered the
proximate cause of the accident. In Taylor v. Manila
Electric Railroad and Light Co. (16 Phil. 8, 29-30), this
Court set a guideline for a judicious assessment of the
situation:
78
 "Difficulty seems to be apprehended
in deciding which acts of the injured
party shall be considered immediate
causes of the accident. The test is
simple. Distinction must be made
between the accident and the injury,
between the event itself, without which
there could have been no accident, and
those acts of the victim not entering into
it, independent of it, but contributing to
his own proper hurt. For instance, the
cause of the accident under review
was the displacement of the
crosspiece or the failure to replace it.
This 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
through his act or omission of duty,
that would have been one of the
determining causes of the event or
accident, for which he would have
been responsible. Where he
contributes to the principal
occurrence, as one of its determining
factors, he can not recover. Where, in
conjunction with the occurrence, he
contributes only to his own injury, he
may recover the amount that the
defendant responsible for the event
should pay for such injury, less a sum
deemed a suitable equivalent for his
own imprudence." (emphasis Ours)
Applying all these established doctrines in the case at
bar and after a careful scrutiny of the records, We find
no compelling reason to grant the petition. We affirm.
Petitioners fault the city government of Davao for
failing to clean a septic tank for the period of 19 years
resulting in an accumulation of hydrogen sulfide gas
which killed the laborers. They contend that such
failure was compounded by the fact that there was no
warning sign of the existing danger and no efforts
exerted by the public respondent to neutralize or render
harmless the effects of the toxic gas. They submit that
the public respondent's gross negligence was the
proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true
that the public respondent has been remiss in its duty
to re-empty the septic tank annually, such negligence
was not a continuing one. Upon learning from the
report of the market master about the need to clean the
septic tank of the public toilet in Agdao Public Market,
the public respondent immediately responded by
issuing invitations to bid for such service. Thereafter, it
79
awarded the bid to the lowest bidder, Mr. Feliciano
Bascon (TSN, May 24, 1983, pp. 22-25). The public
respondent, therefore, lost no time in taking up
remedial measures to meet the situation. It is likewise
an undisputed fact that despite the public respondent's
failure to re-empty the septic tank since 1956, people in
the market have been using the public toilet for their
personal necessities but have remained unscathed. The
testimonies of Messrs. Danilo Garcia and David Secoja
(plaintiffs'-petitioners' witnesses) on this point are
relevant, to wit:
xxx xxx xxx
The absence of any accident was due to the public
respondent's compliance with the sanitary and
plumbing specifications in constructing the toilet and
the septic tank (TSN, November 4, 1983, p. 51). Hence,
the toxic gas from the waste matter could not have
leaked out because the septic tank was air-tight (TSN,
ibid. p. 49). The only indication that the septic tank in
the case at bar was full and needed emptying was when
water came out from it (TSN, September 13, 1983, p. 41).
Yet, even when the septic tank was full, there was no
report of any casualty of gas poisoning despite the
presence of people living near it or passing on top of it
or using the public toilet for their personal necessities.
Petitioners made a lot of fuss over the lack of any
ventilation pipe in the toilet to emphasize the
negligence of the city government and presented
witnesses to attest on this lack. However, this strategy
backfired on their faces. Their witnesses were not
expert witnesses. On the other hand, Engineer
Demetrio Alindada of the city government testified and
demonstrated by drawings how the safety
requirements like emission of gases in the construction
of both toilet and septic tank have been complied with.
He stated that the ventilation pipe need not be
constructed outside the building as it could also be
embodied in the hollow blocks as is usually done in
residential buildings (TSN, November 4, 1983, pp. 50-
51). The petitioners submitted no competent evidence
to corroborate their oral testimonies or rebut the
testimony given by Engr. Alindada.
We also do not agree with the petitioner's submission
that warning signs of noxious gas should have been put
up in the toilet in addition to the signs of "MEN" and
"WOMEN" already in place in that area. Toilets and
septic tanks are not nuisances per se as defined in
Article 694 of the New Civil Code which would
necessitate warning signs for the protection of the
public. While the construction of these public facilities
demands utmost compliance with safety and sanitary
requirements, the putting up of warning signs is not
one of those requirements. The testimony of Engr.
Alindada on this matter is elucidative:
xxx xxx xxx
In view of this factual milieu, it would appear that an
accident such as toxic gas leakage from the septic tank
is unlikely to happen unless one removes its covers.
The accident in the case at bar occurred because the
victims on their own and without authority from the
public respondent opened the septic tank. Considering
the nature of the task of emptying a septic tank
especially one which has not been cleaned for years, an
ordinarily prudent person should undoubtedly be
aware of the attendant risks. The victims are no
exception; more so with Mr. Bertulano, an old hand in
this kind of service, who is presumed to know the
hazards of the job. His failure, therefore, and that of his
men to take precautionary measures for their safety
was the proximate cause of the accident. In Culion Ice,
Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil.
129, 133), We held that when a person holds himself out
as being competent to do things requiring professional
skill, he will be held liable for negligence if he fails to
exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do (emphasis
Ours). The fatal accident in this case would not have
happened but for the victims' negligence. Thus, the
appellate court was correct to observe that:
". . . Could the victims have died if
they did not open the septic tank
which they were not in the first place
authorized to open? Who between
the passive object (septic tank) and
the active subject (the victims herein)
who, having no authority therefore,
arrogated unto themselves, the task
of opening the septic tank which
caused their own deaths should be
responsible for such deaths. How
could the septic tank which has been
in existence since the 1950's be the
proximate cause of an accident that
occurred only on November 22, 1975?
The stubborn fact remains that since
1956 up to occurrence of the accident
in 1975 no injury nor death was
caused by the septic tank. The only
reasonable conclusion that could be
drawn from the above is that the
victims' death was caused by their
own negligence in opening the septic
tank . . ." (Rollo, p. 23)
Petitioners further contend that the failure of the
market master to supervise the area where the septic
tank is located is a reflection of the negligence of the
public respondent.
We do not think so. The market master knew that work
on the septic tank was still forthcoming. It must be
remembered that the bidding had just been conducted.
Although the winning bidder was already known, the
award to him was still to be made by the Committee on
Awards. Upon the other hand, the accident which befell
the victims who are not in any way connected with the
winning bidder happened before the award could be
given. Considering that there was yet no award and
order to commence work on the septic tank, the duty of
the market master or his security guards to supervise
the work could not have started (TSN, September 13,
1983, p. 40). Also, the victims could not have been seen
working in the area because the septic tank was hidden
by a garbage storage which is more or less ten (10)
meters away from the comfort room itself (TSN, ibid,
pp. 38-39). The surreptitious way in which the victims
did their job without clearance from the market master
or any of the security guards goes against their good
faith. Even their relatives or family members did not
know of their plan to clean the septic tank.
Finally, petitioners insistence on the applicability of
Article 24 of the New Civil Code cannot be sustained.
Said law states:
"ARTICLE 24. In all contractual,
property or other relations, when one
of the parties is at a disadvantage on
account of his moral dependence,
ignorance, indigence, mental
weakness, tender age or other
handicap, the courts must be vigilant
for his protection."
We approve of the appellate court's ruling that "(w)hile
one of the victims was invited to bid for said project, he
did not win the bid, therefore, there is a total absence of
contractual relations between the victims and the City
Government of Davao City that could give rise to any
contractual obligation, much less, any liability on the
part of Davao City." (Rollo, p. 24. The accident was
indeed tragic and We empathize with the petitioners.
However, the herein circumstances lead Us to no other
conclusion than that the proximate and immediate
cause of the death of the victims was due to their own
negligence. Consequently, the petitioners cannot
demand damages from the public respondent.
ACCORDINGLY, the amended decision of the Court of
Appeals dated January 11, 1990 is AFFIRMED. No
costs.
SO ORDERED.
Narvasa, C .J ., Cruz, Griño-Aquino and Bellosillo, JJ .,
concur.
RIDJO TAPE & CHEMICAL CORP., ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 126074, 24 February 1998, 286 SCRA 544
ROMERO, J p:
Before us is a petition to review the decision 1 of the
Court of Appeals which reversed that of the Regional
Trial Court of Quezon City, Branch 104 in Civil Case
Nos. Q-92-13845 and Q-92-13879 ordering petitioners to
pay private respondent Manila Electric Co.
80
(MERALCO) the amount of P415,317.66 and P89,710.58 plaintiff(s) and against the
plus the costs of suit. This petition involves the two defendants:
cases filed by petitioners which were eventually
consolidated. 1. Making the Injunction
permanent, enjoining the
Civil Case No. Q-92-13845: defendants in both cases, and all
their subordinates, legal
On November 16, 1990, petitioners applied for and was representatives, electric meter
granted electric service by MERALCO. Ten months readers and technicians from
later, however, or on September 4, 1991, petitioners committing acts of
received a letter from MERALCO demanding payment dispossession/disruption of
of P415,317.66, allegedly representing unregistered electric power on the subject
electric consumption for the period November 7, 1990, premises located at the
to February 13, 1991. MERALCO justified its demand compound of Ridjo Tape and
on the ground that the unregistered electric Chemical Corporation and Ridjo
consumption was due to the defects of the electric Paper Corporation located at 64
meter located in the premises of petitioners. and 68 Judge Juan Luna St., San
Francisco del Monte, Quezon
Since petitioners refused to pay the amount, City.
MERALCO notified them that in the event the overdue
account remained unpaid, it would be forced to 2. Ordering defendants to pay the
disconnect their electricity. Alarmed by this cost of suit.
development, petitioners, instead of settling the
amount, filed on October 29, 1992 a case before Branch Defendants' counterclaim on (the)
98 of the Quezon City RTC for the issuance of a writ of two cases are (sic) denied for lack of
preliminary injunction and/or temporary restraining merit."
order to forestall any planned disconnection by
MERALCO. MERALCO appealed to the Court of Appeals which, on
January 22, 1996, reversed the trial court's finding, to
On November 19, 1992, the trial court granted the wit:
prayer for preliminary injunction.
"WHEREFORE, the appealed
Civil Case No. 13879: judgment is REVERSED; and
appellees Ridjo Tape and Chemical
On July 30, 1992, petitioners received another demand Corporation and Ridjo Paper
letter from MERALCO, this time requiring them to pay Corporation are hereby ordered to
the amount of P89,710.58 representing the unregistered pay subject differential billings of
electric consumption for the period July 15, 1991 to P415,317.66 and P89,710.58,
April 13, 1992, the deficiency again due to the defective respectively. Costs against the
meter installed in petitioners' compound. appellees."

MERALCO's demand having remained unheeded,
petitioners were advised that their electric service
would be disconnected without further notice. Hence,
on November 5, 1992, petitioners filed a case before
Branch 104 of the Quezon City RTC, seeking to enjoin
MERALCO from implementing the suspension of
electric service.
Thereafter, on November 9, 1992, petitioners filed a
motion for the consolidation of the two cases, which
was granted, resulting in the joint trial of said cases
before Branch 104 of the Quezon City RTC.
On November 27, 1992, the trial court issued the
corresponding preliminary injunction.
After due trial, the lower court rendered a decision, the
dispositive portion of which reads:
"WHEREFORE, judgment is hereby
rendered in this case in favor of the
Aggrieved, petitioners filed a motion for
reconsideration, which was denied by the Court of
Appeals in a resolution dated August 14, 1996. Hence,
this petition.
From the pleadings filed by the parties, it can be
deduced that the only issue to be resolved is whether
petitioners, despite the absence of evidence of
tampering, are liable to pay for the unregistered
electrical service.
For a better understanding of the two cases, the terms
and conditions of the Service Agreement regarding
payments are reproduced:
"PAYMENTS
Bills will be rendered by the
Company to the Customer monthly
in accordance with the applicable rate
schedule. Said Bills are payable to

81
 collectors or at the main or branch
offices of the Company or at its
authorized banks within ten (10) days
after the regular reading date of the
electric meters. The word 'month' as
used herein and in the rate schedule
is hereby defined to be the elapsed
time between two succeeding meter
readings approximately thirty (30)
days apart. In the event of the stoppage
or the failure by any meter to register the
full amount of energy consumed, the
Customer shall be billed for such period
on an estimated consumption based upon
his use of energy in a similar period of
like use." (Emphasis supplied)
In disclaiming any liability, petitioners assert that the
phrase "stoppage or failure by any meter to register the
full amount of energy consumed" can only refer to
tampering on the part of the customer and not
mechanical failure or defects. MERALCO, on the other
hand, argues that to follow the interpretation advanced
by petitioners would constitute an unjust enrichment in
favor of its customers.
Evidently, the Service Contract between petitioners and
MERALCO partakes of the nature of a contract of
adhesion as it was prepared solely by the latter, the
only participation of the former being that they affixed
or "adhered" their signature thereto, thus, leaving no
room for negotiation and depriving petitioners of the
opportunity to bargain on equal footing. Nevertheless,
these types of contracts have been declared to be
binding as ordinary contracts because the party
adhering thereto is free to reject it in its entirety.
Being an ordinary contract, therefore, the principle that
contracting parties can make stipulations in their
contract provided they are not contrary to law, morals,
good customs, public order or public policy, stands
strong and true. To be sure, contracts are respected as
laws between the contracting parties, and they may
establish such stipulations, clauses, terms and
conditions as they may want to include. Since both
parties offered conflicting interpretations of the
stipulation, however, then judicial determination of the
parties' intention is mandated. In this regard, it must be
stressed that in construing a written contract, the reason
behind and the circumstances surrounding its
execution are of paramount importance to place the
interpreter in the situation occupied by the parties
concerned at the time the writing was executed.
With these pronouncement as parameters, and
considering the circumstances of the parties, we are
constrained to uphold MERALCO's interpretation.
At this juncture, we hasten to point out that the
production and distribution of electricity is a highly
technical business undertaking, and in conducting its
operation, it is only logical for public utilities, such as
MERALCO, to employ mechanical devices and
equipment for the orderly pursuit of its business.
It is to be expected that the parties were consciously
aware that these devices or equipment are susceptible
to defects and mechanical failure. Hence, we are not
prepared to believe that petitioners were ignorant of the
fact that stoppages in electric meters can also result
from inherent defects or flaws and not only from
tampering or intentional mishandling.
Clearly, therefore, the rationale of the provision in the
Service Agreement was primarily to cover situations
similar to the instant case, for there are instances when
electric meters do fail to record the quantity of the
current used for whatever reason. It is precisely this
kind of predicament that MERALCO seeks to protect
itself from so as to avert business losses or reverses. It
must be borne in mind that construction of the terms of
a contract which would amount to impairment or loss
of right is not favored; conservation and preservation,
not waiver, abandonment or forfeiture of a right, is the
rule. Since MERALCO supplied electricity to petitioners
for a fee, no intent to donate the same can be gleaned
from the terms of the Agreement. Hence, the stipulation
must be upheld.
Corollarily, it must be underscored that MERALCO has
the imperative duty to make a reasonable and proper
inspection of its apparatus and equipment to ensure
that they do not malfunction, and the due diligence to
discover and repair defects therein. Failure to perform
such duties constitutes negligence.
A review of the records, however, discloses that the
unpaid charges covered the periods from November 7,
1990 to February 13, 1991 for Civil Case No. Q-92-13045
and from July 15, 1991 to April 13, 1992 for Civil Case
No. 13879, approximately three months and nine
months, respectively. On such basis, we take judicial
notice that during those periods, personnel
representing MERALCO inspected and examined the
electric meters of petitioners regularly for the purpose
of determining the monthly dues payable. So, why
were these defects not detected and reported on time?
It has been held that notice of a defect need not be
direct and express; it is enough that the same had
existed for such a length of time that it is reasonable to
presume that it had been detected, and the presence of
a conspicuous defect which has existed for a
considerable length of time will create a presumption of
constructive notice thereof. Hence, MERALCO's failure
to discover the defect, if any, considering the length of
time, amounts to inexcusable negligence. Furthermore,
we need not belabor the point that as a public utility,
MERALCO has the obligation to discharge its functions
with utmost care and diligence.
Accordingly, we are left with no recourse but to
conclude that this is a case of negligence on the part of
MERALCO for which it must bear the consequences. Its
82
failure to make the necessary repairs and replacement
of the defective electric meter installed within the
premises of petitioners was obviously the proximate
cause of the instant dispute between the parties.
Indeed, if an unusual electric consumption was not
reflected in the statements of account of petitioners,
MERALCO, considering its technical knowledge and
vast experience in providing electric service, could have
easily verified any possible error in the meter reading.
In the absence of such a mistake, the electric meters
themselves should be inspected for possible defects or
breakdowns and forthwith repaired and, if necessary,
replaced. Furthermore, if MERALCO discovered that
contraptions or illegal devices were installed which
would alter the result of the meter reading, then it
should have filed the appropriate criminal complaint
against petitioners under Presidential Decree No. 401.
The rationale behind this ruling is that public utilities
should be put on notice, as a deterrent, that if they
completely disregard their duty of keeping their electric
meters in serviceable condition, they run the risk of
forfeiting, by reason of their negligence, amounts
originally due from their customers. Certainly, we
cannot sanction a situation wherein the defects in the
electric meter are allowed to continue indefinitely until
suddenly the public utilities concerned demand
payment for the unrecorded electricity utilized when, in
the first place, they should have remedied the situation
immediately. If we turn a blind eye on MERALCO's
omission, it may encourage negligence on the part of
public utilities, to the detriment of the consuming
public.
In view of the foregoing discussion, the liability of
petitioners for consumed but unrecorded electricity
must be limited by reason of MERALCO's negligence.
Hence, an equitable solution would be for petitioners to
pay only the estimated consumption on a three-month
average before the period in controversy. To hold
otherwise would unjustly enrich petitioners who would
be allowed to utilize additional electricity, albeit
unrecorded, at no extra cost.
To summarize, it is worth emphasizing that it is not our
intention to impede or diminish the business viability
of MERALCO, or any public utility company for that
matter. On the contrary, we would like to stress that,
being a public utility vested with vital public interest,
MERALCO is impressed with certain obligations
towards its customers and any omission on its part to
perform such duties would be prejudicial to its interest.
For in the final analysis, the bottom line is that those
who do not exercise such prudence in the discharge of
their duties shall be made to bear the consequences of
such oversight.
WHEREFORE, in view of the foregoing, the decision of
the Court of Appeals in CA-G.R. CV No. 44010 is
hereby MODIFIED. Petitioners are ordered to pay
MERALCO the amount P168,342.75, representing its
83
average electric consumption three months prior to the
period in controversy. 21 No costs. cdphil
SO ORDERED.
Narvasa, C .J . and Kapunan, JJ ., concur.
Purisima, J ., took no part; being ponente below.
BENGUET ELECTRIC COOPERATIVE, INC.
vs. COURT OF APPEALS, ET AL.
G.R. No. 127326, 23 December 1999, , 378 SCRA 1137
BELLOSILLO, J p:
This case involves a review on certiorari of the Decision
of the Court of Appeals affirming with modification the
decision of the Regional Trial Court of Baguio City, and
ordering petitioner Benguet Electric Cooperative Inc.
(BENECO) to pay Caridad O. Bernardo, as guardian ad
litem of the three (3) minor children of the late Jose
Bernardo P50,000.00 as indemnity for his death xxx
xxx xxx xxx
For five (5) years up to the time of his death, Jose
Bernardo managed a stall at the Baguio City meat
market. On 14 January 1985 at around 7:50 in the
morning, Jose together with other meat vendors went
out of their stalls to meet a jeepney loaded with
slaughtered pigs in order to select the meat they would
sell for the day. Jose was the very first to reach the
parked jeepney. Grasping the handlebars at the rear
entrance of the vehicle, and as he was about to raise his
right foot to get inside, Jose suddenly stiffened and
trembled as though suffering from an epileptic seizure.
Romeo Pimienta who saw Jose thought he was merely
joking but noticed almost in disbelief that he was
already turning black. In no time the other vendors
rushed to Jose and they discovered that the antenna of
the jeepney bearing the pigs had gotten entangled with
an open electric wire at the top of the roof of a meat
stall. Pimienta quickly got hold of a broom and pried
the antenna loose from the open wire. But shortly after,
Jose released his hold on the handlebars of the jeep only
to slump to the ground. He died shortly in the hospital.
Cause of his death was "cardio-respiratory arrest
secondary to massive brain congestion with petecchial
hemorrhage, brain bilateral pulmonary edema and
congestion and endocardial petecchial hemorrhage and
dilation (history of electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of
Jose Bernardo, and their minor children, Jojo, Jeffrey
and Jo-an, all surnamed Bernardo, filed a complaint
against BENECO before the Regional Trial Court of
Baguio City for a sum of money and damages arising
from the electrocution of Jose Bernardo. In the same
civil action, BENECO filed a third-party complaint
against Guillermo Canave, Jr., the jeepney owner.
In its decision dated 15 August 1994, the trial court
ruled in favor of the Bernardos and ordered BENECO
to pay them damages. Both petitioner and private
respondents herein appealed to the Court of Appeals.
On 5 November 1996 the appellate court promulgated
its Decision which BENECO now assails contending
inter alia that the appellate court gravely erred in
ordering BENECO to pay damages in light of the clear
evidence that it was third-party defendant Canave's
fault or negligence which was the proximate and sole
cause, or at least the principal cause, of the
electrocution and death of Jose Bernardo.
First, BENECO questions the award of damages by
respondent court notwithstanding a clear showing that
the electrocution and death of Jose Bernardo were
directly attributable to the fault and negligence of
jeepney owner Guillermo Canave, Jr.
The records of the case show that respondent court did
not commit any reversible error in affirming the
findings of the trial court that BENECO was solely
responsible for the untimely death of Jose Bernardo
through accidental electrocution. According to the trial
court, which we find substantiated by the records —
“Through Virgilio Cerezo, a "1" and "1-A"). The vertical clearance
registered master electrician and
presently the Chief Electrical
Building Inspector of the General
Services Division of the City of
Baguio, who was tasked to
investigate the electrocution of
Bernardo, the plaintiffs adduced
proof tending to show that the
defendant BENECO installed a No. 2
high voltage main wire distribution
line and a No. 6 service line to
provide power at the temporary meat
market on Hilltop Road. It put up a
three-inch G.I. pipe pole to which the
No. 2 main line was strung on top of
a stall where a service drop line was
connected. The height of the electrical
connection from the No. 2 line to the
service line was barely eight (8) to
nine (9) feet (Exhibit "E"; See Exhibit
"D-1") which is in violation of the
Philippine Electrical Code which
requires a minimum vertical
clearance of fourteen (14) feet from
the level of the ground since the
wiring crosses a public street.
Another violation according to
Cerezo, is that the main line
connected to the service line was not
of rigid conduit wiring but totally
exposed without any safety
protection (Ibid). Worse, the open
wire connections were not insulated
(Ibid); See Exhibits "D-6", "D-6-A",
"D-7"). The jeep's antenna which was
more than eight (8) feet high (Exhibit
"D-9") from the ground (It is about six
to seven feet long and mounted on
the left fender which is about three
feet above the ground) got entangled
with the open wire connections
(Exhibit "D-8"), thereby electrically
charging its handlebars which
Bernardo held on to enter the vehicle
resulting in his electrocution.
While Vedasto Augusto, an electrical
engineer and the line superintendent
in the electrical department of the
defendant BENECO, admitted that
the allowable vertical clearance of the
service drop line is even 15 feet from
the ground level and not only 14 feet,
he and Jose Angeles, then an
instrument man or surveyor of the
BENECO, insisted that BENECO
installed (they do not know by whom
in particular) from the Apollo
Building nearby a service drop line
carrying 220 volts which was
attached to a G.I. pipe pole (Exhibits
of the point of attachment of the
service drop line on the G.I. post to
the ground is 15.5 feet (Exhibit "1-B"),
which is more than the allowable 15-
foot clearance. To this service drop
line was connected the service
entrance conductor (Exhibit "1-D") to
supply power inside the premises to
be serviced through an electric meter.
At the lower portion of the splicing or
connecting point between the service
drop line and the service entrance
conductor is a three to four-inch bare
wire to serve as a ground. They saw
the bare wire because the splicing
point was exposed as it was not
covered with tape (Exhibit "1-E"). The
antenna of the jeep which
electrocuted Bernardo got entangled
with this exposed splicing point.
Augusto claimed that it was not
BENECO's job to splice or connect the
service entrance conductor to the
service drop line but rather the owner
of the premises to be serviced whose
identity they did not, however,
determine.
Significantly, on cross-examination,
Augusto admitted that the service
drop line that BENECO installed did
not end at the point to which it is
attached to the G.I. post. Rather, it
passed through a spool insulator that
is attached to the post (Exhibit "1-F")
and extended down to where the
84
 service entrance conductor is spliced
with the result that the exposed
splicing point (Exhibit "1-E") is only
about eight (8) feet from the ground
level.”
There is no question that as an electric cooperative
holding the exclusive franchise in supplying electric
power to the towns of Benguet province, its primordial
concern is not only to distribute electricity to its
subscribers but also to ensure the safety of the public by
the proper maintenance and upkeep of its facilities. It is
clear to us then that BENECO was grossly negligent in
leaving unprotected and uninsulated the splicing point
between the service drop line and the service entrance
conductor, which connection was only eight (8) feet
from the ground level, in violation of the Philippine
Electrical Code. BENECO's contention that the accident
happened only on January 14, 1985, around seven (7)
years after the open wire was found existing in 1978, far
from mitigating its culpability, betrays its gross neglect
in performing its duty to the public. 4 By leaving an
open live wire unattended for years, BENECO
demonstrated its utter disregard for the safety of the
public. Indeed, Jose Bernardo's death was an accident
that was bound to happen in view of the gross
negligence of BENECO.
BENECO theorizes in its defense that the death of Jose
Bernardo could be attributed to the negligence of
Canave, Jr., in parking his jeepney so close to the
market stall which was neither a parking area nor a
loading area, with his antenna so high as to get
entangled with an open wire above the Dimasupil
store. But this line of defense must be discarded.
Canave's act of parking in an area not customarily used
for that purpose was by no means the independent
negligent act adverted to by BENECO in citing Manila
Electric Co. v. Ronquillo. Canave was well within his
right to park the vehicle in the said area where there
was no showing that any municipal law or ordinance
was violated nor that there was any foreseeable danger
posed by his act. One thing however is sure, no
accident would have happened had BENECO installed
the connections in accordance with the prescribed
vertical clearance of fifteen (15) feet.
xxx xxx xxx
WHEREFORE, the assailed Decision of the Court of
Appeals dated 5 November 1996 ordering petitioner
Benguet Electric Cooperative, Inc., to pay private
respondent Caridad O. Bernardo as guardian ad litem
for the minors Jojo, Jeffrey and Jo-an, all surnamed
Bernardo, P20,000.00 as exemplary damages, another
P20,000.00 for attorney's fees, and P50,000.00 as
indemnity for the death of Jose Bernardo, is AFFIRMED
with the MODIFICATION that the P864,000.00 as net
income loss is reduced to P675,000.00 and the
P100,000.00 as moral damages is also reduced to
P50,000.00.
85
Costs against petitioner.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ.,
concur.
AUSTRIA, vs. COURT OF APPEALS, ET AL.
G.R. No. 133323, 9 March 2000, , 327 SCRA 688
QUISUMBING, J p:
Before us is a petition for review on certiorari, seeking to
set aside (1) the decision dated August 13, 1997, of the
respondent Court of Appeals in CA G.R. CR No. 16889,
affirming with modification the March 21, 1994,
judgment of the Regional Trial Court, Branch 43, of San
Fernando, Pampanga, in Criminal Case No. 5784, which
convicted the petitioner of reckless imprudence
resulting in serious physical injuries, and (2) the
resolution of said respondent court dated March 25,
1998 denying petitioner's motion for reconsideration.
The original Information dated August 27, 1990,
charging petitioner Alberto Austria and his co-accused
was amended as to correctly state the name of co-
accused Rolando M. Flores, which was Rolando Torres
in the original Information. Consequently, the
Amended Information reads:
"AMENDED INFORMATION
The undersigned Provincial
Prosecutor and Assistant Provincial
Prosecutor accuse ALBERTO
AUSTRIA y PENAFLOR and
ROLANDO M. FLORES of the crime
of Reckless Imprudence resulting in
Homicide and Multiple Physical
Injuries, committed as follows:
That on or about the 9th day of July
1989, in barangay Cabetican,
municipality of Bacolor, province of
Pampanga, Philippines and within
the jurisdiction of this Honorable
Court, the above-named accused,
Alberto Austria y Peñaflor, being
then the driver and person-in-charge
of a Ford Fiera Crew Cab bearing
Plate No. DEB 558 UV Pil. '88 and
registered under the name of
Geronimo Noceda, without due
regard to traffic laws, rules and
regulations, without taking the
necessary precaution to avoid
accident to persons and by giving
said vehicle a speed far greater than
is allowed by law, did then and there
wilfully, unlawfully and feloniously
drive, manage and operate said
vehicle in a careless, reckless and
 imprudent manner, causing as a
result of his carelessness, recklessness
and imprudence to bump and hit a
cargo trailer truck bearing Plate No.
CES 518 which was improperly and
carelessly parked along the right
shoulder of the road by accused
Rolando M. Flores, driver of said
cargo trailer truck, thereby causing
fatal injuries upon Virginia Lapid
Vda. de Diwa, occupant of said Ford
Fiera Crew Cab, which directly
caused her death shortly thereafter,
and inflicted physical injuries upon
the following occupants of said Ford
Fiera Crew Cab, to wit:
Armin Q. Manalansan — which
required and did require medical
attendance for a period of more than
thirty (30) days and incapacitated and
did incapacitate said victim from
performing her customary labor for
the same period of time;
Mylene S. Gigante — which required
and did require medical attendance
for a period of five (5) to seven (7)
days and incapacitated and did
incapacitate from performing her
customary labor for the same period
of time;
Luzviminda S. Diwa — which
required and did require medical
attendance for less than two (2)
weeks and incapacitated and did
incapacitate her from performing her
customary labor for the same period
of time;
Mark S. Diwa — which required and
did require medical attendance for an
unknown duration and incapacitated
and did incapacitate him from
performing his customary labor for
the same period of time. cdrep
All contrary to law."
The facts of the case as summarized by the respondent
court are as follows:
"On July 9, 1989 at around 7:00 P.M.
along the Olongapo-Gapan Road in
the vicinity of barangay Cabetican,
Bacolor, Pampanga, the appellant
was driving his Ford Fiera with ten
(10) passengers. They came from the
Manila International Airport bound
to Dinalupihan, Bataan.
One of the vehicle's tire suddenly hit
a stone lying in the road, while thus
cruising, which caused the appellant
to lose control and collide with the
rear of an improperly parked cargo
truck trailer driven by accused
Rolando M. Flores. As a result of the
collision, five (5) passengers suffered
varying degrees of injuries."
While trial ensued, accused truck driver Rolando M.
Flores remained at-large.
On March 21, 1994, the trial court promulgated its
decision, disposing as follows:
"WHEREFORE, the Court finds the
accused guilty beyond reasonable
doubt hereby sentences him to suffer
an indeterminate penalty of
imprisonment of two (2) months and
one (1) day of arresto mayor, as
minimum, to two (2) years, ten (10)
months and twenty (20) days of
Prision Correccional, as maximum.
The accused is likewise ordered to:
1) Pay the heirs of Virginia Lapid
Vda. de Diwa the amount of
P50,000.00 as indemnity;
2) P6,320.00 as and for actual
expenses incurred by
Luzviminda Diwa, representing
medical and funeral expenses;
and
3) Cost of suit.
SO ORDERED."
Subsequently, on June 10, 1994, the court modified its
decision after the accused filed his motion for
reconsideration dated April 4, 1994. The modified
judgment reads:
"WHEREFORE, the Decision
promulgated on March 21, 1994 is
hereby modified as follows:
The Court, finding accused Alberto
Austria guilty beyond reasonable
doubt of the crime of Reckless
Imprudence Resulting in Serious
Physical Injuries (Art. 365 in relation
to Art. 263 [3], Revised Penal Code),
hereby sentences the said accused to
suffer a[n] indeterminate penalty of
imprisonment of one (1) month and
one (1) day to four (4) months of
arresto mayor.
86
 The said accused is likewise ordered
to indemnify Luzviminda Diwa the
amount of P1,345.75; Mark Diwa the
amount of P4,716.31; and Mylene
Gigante the amount of P6,199.62 as
and for actual damages incurred.
No pronouncement as to the civil
liability of the accused to private
complainant Armin Manalansan
considering that the latter filed a
separate civil action against accused
Alberto Austria before the Regional
Trial Court of Bataan (TSN., p. 7,
February 18, 1992).
SO ORDERED."
Defendant Austria timely appealed his conviction
before the Court of Appeals, which affirmed with
modifications the lower court's decision. The appellate
court's decision disposed as follows:
"WHEREFORE, foregoing
considered, the appealed decision is
AFFIRMED with modification that: 1)
a straight penalty of one (1) month
and one (1) day of arresto mayor for
the imprisonment of the accused is
imposed; and 2) the award in favor of
Mylene Gigante of P6,199.62 is
deleted.
SO ORDERED."
xxx xxx xxx
Petitioner faults respondent court for its failure to
appreciate and give credence to his testimony that
when the accident occurred, the petitioner was driving
along the Olongapo-Gapan road on the lane properly
belonging to him and driving at a moderate speed.
Petitioner cites the case of Phoenix Construction, Inc. v.
Intermediate Appellate Court, 148 SCRA 353 (1987), which
he alleges, contains a set of almost identical facts.
Further, he claims that the other driver's negligence in
parking his vehicle caused the collision. He asserts that
the truck driver, Rolando Flores, negligently parked his
trailer truck with the rear end protruding onto road,
without any warning device. This being so, he should
not be held responsible for Flores' negligence.
Worth noting, the first and second assigned errors are
factual in nature. As a general rule, findings of fact of
the Court of Appeals are binding and conclusive upon
this Court, and we will not normally disturb such
factual findings unless the findings of the court are
palpably unsupported by the evidence on record or
unless the judgment itself is based on misapprehension
of facts. We find no palpable factual error that would
warrant a reversal of the appellate courts' factual
87
determination in this wise:
"In his direct examination, the
appellant admitted that he saw the
trailer at a distance of about six (6)
meters but at the same time stated
that the distance of the focus of the
vehicle's headlight in dim position
was twenty (20) meters. These
inconsistent statements, taken
together with his claim on cross-
examination that he saw the trailer
only when he bumped it, only show
that he was driving much faster than
thirty (30) kilometers per hour.
Assuming that he was driving his
vehicle at that speed of thirty (30)
kilometers per hour, appellant would
have not lost control of the vehicle
after it hit the stone before the
collision. Under these circumstances,
the appellant did not exercise the
necessary precaution required of him.
He was negligent."
While we note similarities of the factual milieu of
Phoenix to that of the present case, we are unable to
agree with petitioner that the truck driver should be
held solely liable while the petitioner should be
exempted from liability. In Phoenix, we ruled that the
driver of the improperly parked vehicle was liable and
the driver of the colliding car contributorily liable. We
agree with the respondent court in its observation on
the petitioner's culpability: "That he had no opportunity
to avoid the collision is of his own making and [this]
should not relieve him of liability." Patently, the
negligence of the petitioner as driver of the Ford Fiera is
the immediate and proximate cause of the collision.
xxx xxx xxx
WHEREFORE, the instant petition is DENIED, and the
assailed decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
THE CONSOLIDATED BANK and TRUST
CORPORATION vs. COURT OF APPEALS, ET AL.
G.R. No. 138569, 11 September 2003, 410 SCRA 562
CARPIO, J p:
The Case
Before us is a petition for review of the Decision of the
Court of Appeals dated 27 October 1998 and its
Resolution dated 11 May 1999. The assailed decision
reversed the Decision of the Regional Trial Court of
Manila, Branch 8, absolving petitioner Consolidated.
Bank and Trust Corporation, now known as Solidbank
Corporation ("Solidbank"), of any liability. The
questioned resolution of the appellate court denied the
motion for reconsideration of Solidbank but modified
the decision by deleting the award of exemplary
damages, attorney's fees, expenses of litigation and cost
of suit.
The Facts
Solidbank is a domestic banking corporation organized
and existing under Philippine laws. Private respondent
L.C. Diaz and Company, CPA's ("L.C. Diaz"), is a
professional partnership engaged in the practice of
accounting.
Sometime in March 1976, L.C. Diaz opened a savings
account with Solidbank, designated as Savings Account
No. S/A 200-16872-6.
On 14 August 1991, L.C. Diaz through its cashier,
Mercedes Macaraya ("Macaraya"), filled up a savings
(cash) deposit slip for P990 and a savings (checks)
deposit slip for P50. Macaraya instructed the messenger
of L.C. Diaz, Ismael Calapre ("Calapre"), to deposit the
money with Solidbank. Macaraya also gave Calapre the
Solidbank passbook.
Calapre went to Solidbank and presented to Teller No.
6 the two deposit slips and the passbook. The teller
acknowledged receipt of the deposit by returning to
Calapre the duplicate copies of the two deposit slips.
Teller No. 6 stamped the deposit slips with the words
"DUPLICATE" and "SAVING TELLER 6 SOLIDBANK
HEAD OFFICE." Since the transaction took time and
Calapre had to make another deposit for L.C. Diaz with
Allied Bank, he left the passbook with Solidbank.
Calapre then went to Allied Bank. When Calapre
returned to Solidbank to retrieve the passbook, Teller
No. 6 informed him that "somebody got the passbook. 3
Calapre went back to L.C. Diaz and reported the
incident to Macaraya.
Macaraya immediately prepared a deposit slip in
duplicate copies with a check of P200,000. Macaraya,
together with Calapre, went to Solidbank and
presented to Teller No. 6 the deposit slip and check.
The teller stamped the words "DUPLICATE" and
"SAVING TELLER 6 SOLIDBANK HEAD OFFICE" on
the duplicate copy of the deposit slip. When Macaraya
asked for the passbook, Teller No. 6 told Macaraya that
someone got the passbook but she could not remember
to whom she gave the passbook. When Macaraya asked
Teller No. 6 if Calapre got the passbook, Teller No. 6
answered that someone shorter than Calapre got the
passbook. Calapre was then standing beside Macaraya.
Teller No. 6 handed to Macaraya a deposit slip dated 14
August 1991 for the deposit of a check for P90,000
drawn on Philippine Banking Corporation ("PBC"). This
PBC check of L.C. Diaz was a check that it had "long
closed." PBC subsequently dishonored the check
because of insufficient funds and because the signature
in the check differed from PBC's specimen signature.
Failing to get back the passbook, Macaraya went back
to her office and reported the matter to the Personnel
Manager of L.C. Diaz, Emmanuel Alvarez.
The following day, 15 August 1991, L.C. Diaz through
its Chief Executive Officer, Luis C. Diaz ("Diaz"), called
up Solidbank to stop any transaction using the same
passbook until L.C. Diaz could open a new account. 5
On the same day, Diaz formally wrote Solidbank to
make the same request. It was also on the same day that
L.C. Diaz learned of the unauthorized withdrawal the
day before, 14 August 1991, of P300,000 from its savings
account. The withdrawal slip for the P300,000 bore the
signatures of the authorized signatories of L.C. Diaz,
namely Diaz and Rustico L. Murillo. The signatories,
however, denied signing the withdrawal slip. A certain
Noel Tamayo received the P300,000.
In an Information 6 dated 5 September 1991, L.C. Diaz
charged its messenger, Emerano Ilagan ("Ilagan") and
one Roscon Verdazola with Estafa through Falsification
of Commercial Document. The Regional Trial Court of
Manila dismissed the criminal case after the City
Prosecutor filed a Motion to Dismiss on 4 August 1992.
On 24 August 1992, L.C. Diaz through its counsel
demanded from Solidbank the return of its money.
Solidbank refused.
On 25 August 1992, L.C. Diaz filed a Complaint for
Recovery of a Sum of Money against Solidbank with
the Regional Trial Court of Manila, Branch 8. After trial,
the trial court rendered on 28 December 1994 a decision
absolving Solidbank and dismissing the complaint.
L.C. Diaz then appealed to the Court of Appeals. On 27
October 1998, the Court of Appeals issued its Decision
reversing the decision of the trial court.
On 11 May 1999, the Court of Appeals issued its
Resolution denying the motion for reconsideration of
Solidbank. The appellate court, however, modified its
decision by deleting the award of exemplary damages
and attorney's fees.
The Ruling of the Trial Court
In absolving Solidbank, the trial court applied the rules
on savings account written on the passbook. The rules
state that "possession of this book shall raise the
presumption of ownership and any payment or
payments made by the bank upon the production of the
said book and entry therein of the withdrawal shall
have the same effect as if made to the depositor
personally."
At the time of the withdrawal, a certain Noel Tamayo
was not only in possession of the passbook, he also
presented a withdrawal slip with the signatures of the
authorized signatories of L.C. Diaz. The specimen
signatures of these persons were in the signature cards.
88
The teller stamped the withdrawal slip with the words
"Saving Teller No. 5." The teller then passed on the
withdrawal slip to Genere Manuel ("Manuel") for
authentication. Manuel verified the signatures on the
withdrawal slip. The withdrawal slip was then given to
another officer who compared the signatures on the
withdrawal slip with the specimen on the signature
cards. The trial court concluded that Solidbank acted
with care and observed the rules on savings account
when it allowed the withdrawal of P300,000 from the
savings account of L.C. Diaz.
The trial court pointed out that the burden of proof
now shifted to L.C. Diaz to prove that the signatures on
the withdrawal slip were forged. The trial court
admonished L.C. Diaz for not offering in evidence the
National Bureau of Investigation ("NBI") report on the
authenticity of the signatures on the withdrawal slip for
P300,000. The trial court believed that L.C. Diaz did not
offer this evidence because it is derogatory to its action.
Another provision of the rules on savings account states
that the depositor must keep the passbook "under lock
and key." When another person presents the passbook
for withdrawal prior to Solidbank's receipt of the notice
of loss of the passbook, that person is considered as the
owner of the passbook. The trial court ruled that the
passbook presented during the questioned transaction
was "now out of the lock and key and presumptively
ready for a business transaction."
Solidbank did not have any participation in the custody
and care of the passbook. The trial court believed that
Solidbank's act of allowing the withdrawal of P300,000
was not the direct and proximate cause of the loss. The
trial court held that L.C. Diaz's negligence caused the
unauthorized withdrawal. Three facts establish L.C.
Diaz's negligence: (1) the possession of the passbook by
a person other than the depositor L.C. Diaz; (2) the
presentation of a signed withdrawal receipt by an
unauthorized person; and (3) the possession by an
unauthorized person of a PBC check "long closed" by
L.C. Diaz, which check was deposited on the day of the
fraudulent withdrawal.
The trial court debunked L.C. Diaz's contention that
Solidbank did not follow the precautionary procedures
observed by the two parties whenever L.C. Diaz
withdrew significant amounts from its account. L.C.
Diaz claimed that a letter must accompany withdrawals
of more than P20,000. The letter must request Solidbank
to allow the withdrawal and convert the amount to a
manager's check. The bearer must also have a letter
authorizing him to withdraw the same amount.
Another person driving a car must accompany the
bearer so that he would not walk from Solidbank to the
office in making the withdrawal. The trial court pointed
out that L.C. Diaz disregarded these precautions in its
past withdrawal. On 16 July 1991, L.C. Diaz withdrew
P82,554 without any separate letter of authorization or
any communication with Solidbank that the money be
converted into a manager's check.
89
The trial court further justified the dismissal of the
complaint by holding that the case was a last ditch
effort of L.C. Diaz to recover P300,000 after the
dismissal of the criminal case against Ilagan.
xxx xxx xxx
The Ruling of the Court of Appeals
The Court of Appeals ruled that Solidbank's negligence
was the proximate cause of the unauthorized
withdrawal of P300,000 from the savings account of
L.C. Diaz. The appellate court reached this conclusion
after applying the provision of the Civil Code on quasi-
delict, to wit: xxx
xxx xxx xxx
The Ruling of the Court
The petition is partly meritorious.
Solidbank's Fiduciary Duty under the Law
The rulings of the trial court and the Court of Appeals
conflict on the application of the law. The trial court
pinned the liability on L.C. Diaz based on the
provisions of the rules on savings account, a
recognition of the contractual relationship between
Solidbank and L.C. Diaz, the latter being a depositor of
the former. On the other hand, the Court of Appeals
applied the law on quasi-delict to determine who
between the two parties was ultimately negligent. The
law on quasi-delict or culpa aquiliana is generally
applicable when there is no pre-existing contractual
relationship between the parties.
We hold that Solidbank is liable for breach of contract
due to negligence, or culpa contractual.
The contract between the bank and its depositor is
governed by the provisions of the Civil Code on simple
loan. 17 Article 1980 of the Civil Code expressly
provides that ". . . savings . . . deposits of money in
banks and similar institutions shall be governed by the
provisions concerning simple loan." There is a debtor-
creditor relationship between the bank and its
depositor. The bank is the debtor and the depositor is
the creditor. The depositor lends the bank money and
the bank agrees to pay the depositor on demand. The
savings deposit agreement between the bank and the
depositor is the contract that determines the rights and
obligations of the parties.
The law imposes on banks high standards in view of
the fiduciary nature of banking. Section 2 of Republic
Act No. 8791 ("RA 8791"), 18 which took effect on 13
June 2000, declares that the State recognizes the
"fiduciary nature of banking that requires high
standards of integrity and performance." This new
provision in the general banking law, introduced in
2000, is a statutory affirmation of Supreme Court
decisions, starting with the 1990 case of Simex
International v. Court of Appeals, holding that "the bank is
under obligation to treat the accounts of its depositors
with meticulous care, always having in mind the
fiduciary nature of their relationship.
This fiduciary relationship means that the bank's
obligation to observe "high standards of integrity and
performance" is deemed written into every deposit
agreement between a bank and its depositor. The
fiduciary nature of banking requires banks to assume a
degree of diligence higher than that of a good father of
a family. Article 1172 of the Civil Code states that the
degree of diligence required of an obligor is that
prescribed by law or contract, and absent such
stipulation then the diligence of a good father of a
family. 22 Section 2 of RA 8791 prescribes the statutory
diligence required from banks — that banks must
observe "high standards of integrity and performance"
in servicing their depositors. Although RA 8791 took
effect almost nine years after the unauthorized
withdrawal of the P300,000 from L.C. Diaz's savings
account, jurisprudence 23 at the time of the withdrawal
already imposed on banks the same high standard of
diligence required under RA No. 8791.
However, the fiduciary nature of a bank-depositor
relationship does not convert the contract between the
bank and its depositors from a simple loan to a trust
agreement, whether express or implied. Failure by the
bank to pay the depositor is failure to pay a simple
loan, and not a breach of trust. The law simply imposes
on the bank a higher standard of integrity and
performance in complying with its obligations under
the contract of simple loan, beyond those required of
non-bank debtors under a similar contract of simple
loan.
The fiduciary nature of banking does not convert a
simple loan into a trust agreement because banks do
not accept deposits to enrich depositors but to earn
money for themselves. The law allows banks to offer
the lowest possible interest rate to depositors while
charging the highest possible interest rate on their own
borrowers. The interest spread or differential belongs to
the bank and not to the depositors who are not cestui
que trust of banks. If depositors are cestui que trust of
banks, then the interest spread or income belongs to the
depositors, a situation that Congress certainly did not
intend in enacting Section 2 of RA 8791.
Solidbank's Breach of its Contractual Obligation
Article 1172 of the Civil Code provides that
"responsibility arising from negligence in the
performance of every kind of obligation is
demandable." For breach of the savings deposit
agreement due to negligence, or culpa contractual, the
bank is liable to its depositor.
Calapre left the passbook with Solidbank because the
"transaction took time" and he had to go to Allied Bank
for another transaction. The passbook was still in the
hands of the employees of Solidbank for the processing
of the deposit when Calapre left Solidbank. Solidbank's
rules on savings account require that the "deposit book
should be carefully guarded by the depositor and kept
under lock and key, if possible." When the passbook is
in the possession of Solidbank's tellers during
withdrawals, the law imposes on Solidbank and its
tellers an even higher degree of diligence in
safeguarding the passbook.
Likewise, Solidbank's tellers must exercise a high
degree of diligence in insuring that they return the
passbook only to the depositor or his authorized
representative. The tellers know, or should know, that
the rules on savings account provide that any person in
possession of the passbook is presumptively its owner.
If the tellers give the passbook to the wrong person,
they would be clothing that person presumptive
ownership of the passbook, facilitating unauthorized
withdrawals by that person. For failing to return the
passbook to Calapre, the authorized representative of
L.C. Diaz, Solidbank and Teller No. 6 presumptively
failed to observe such high degree of diligence in
safeguarding the passbook, and in insuring its return to
the party authorized to receive the same.
In culpa contractual, once the plaintiff proves a breach
of contract, there is a presumption that the defendant
was at fault or negligent. The burden is on the
defendant to prove that he was not at fault or negligent.
In contrast, in culpa aquiliana the plaintiff has the
burden of proving that the defendant was negligent. In
the present case, L.C. Diaz has established that
Solidbank breached its contractual obligation to return
the passbook only to the authorized representative of
L.C. Diaz. There is thus a presumption that Solidbank
was at fault and its teller was negligent in not returning
the passbook to Calapre. The burden was on Solidbank
to prove that there was no negligence on its part or its
employees.
Solidbank failed to discharge its burden. Solidbank did
not present to the trial court Teller No. 6, the teller with
whom Calapre left the passbook and who was
supposed to return the passbook to him. The record
does not indicate that Teller No. 6 verified the identity
of the person who retrieved the passbook. Solidbank
also failed to adduce in evidence its standard procedure
in verifying the identity of the person retrieving the
passbook, if there is such a procedure, and that Teller
No. 6 implemented this procedure in the present case.
Solidbank is bound by the negligence of its employees
under the principle of respondeat superior or command
responsibility. The defense of exercising the required
diligence in the selection and supervision of employees
is not a complete defense in culpa contractual, unlike in
culpa aquiliana.
90
The bank must not only exercise "high standards of
integrity and performance," it must also insure that its
employees do likewise because this is the only way to
insure that the bank will comply with its fiduciary
duty. Solidbank failed to present the teller who had the
duty to return to Calapre the passbook, and thus failed
to prove that this teller exercised the "high standards of
integrity and performance" required of Solidbank's
employees.
Proximate Cause of the Unauthorized Withdrawal
Another point of disagreement between the trial and
appellate courts is the proximate cause of the
unauthorized withdrawal. The trial court believed that
L.C. Diaz's negligence in not securing its passbook
under lock and key was the proximate cause that
allowed the impostor to withdraw the P300,000. For the
appellate court, the proximate cause was the teller's
negligence in processing the withdrawal without first
verifying with L.C. Diaz. We do not agree with either
court.
Proximate cause is that cause which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without
which the result would not have occurred. Proximate
cause is determined by the facts of each case upon
mixed considerations of logic, common sense, policy
and precedent.
L.C. Diaz was not at fault that the passbook landed in
the hands of the impostor. Solidbank was in possession
of the passbook while it was processing the deposit.
After completion of the transaction, Solidbank had the
contractual obligation to return the passbook only to
Calapre, the authorized representative of L.C. Diaz.
Solidbank failed to fulfill its contractual obligation
because it gave the passbook to another person.
Solidbank's failure to return the passbook to Calapre
made possible the withdrawal of the P300,000 by the
impostor who took possession of the passbook. Under
Solidbank's rules on savings account, mere possession
of the passbook raises the presumption of ownership. It
was the negligent act of Solidbank's Teller No. 6 that
gave the impostor presumptive ownership of the
passbook. Had the passbook not fallen into the hands of
the impostor, the loss of P300,000 would not have
happened. Thus, the proximate cause of the
unauthorized withdrawal was Solidbank's negligence
in not returning the passbook to Calapre.
We do not subscribe to the appellate court's theory that
the proximate cause of the unauthorized withdrawal
was the teller's failure to call up L.C. Diaz to verify the
withdrawal. Solidbank did not have the duty to call up
L.C. Diaz to confirm the withdrawal. There is no
arrangement between Solidbank and L.C. Diaz to this
effect. Even the agreement between Solidbank and L.C.
Diaz pertaining to measures that the parties must
91
observe whenever withdrawals of large amounts are
made does not direct Solidbank to call up L.C. Diaz.
There is no law mandating banks to call up their clients
whenever their representatives withdraw significant
amounts from their accounts. L.C. Diaz therefore had
the burden to prove that it is the usual practice of
Solidbank to call up its clients to verify a withdrawal of
a large amount of money. L.C. Diaz failed to do so.
Teller No. 5 who processed the withdrawal could not
have been put on guard to verify the withdrawal. Prior
to the withdrawal of P300,000, the impostor deposited
with Teller No. 6 the P90,000 PBC check, which later
bounced. The impostor apparently deposited a large
amount of money to deflect suspicion from the
withdrawal of a much bigger amount of money. The
appellate court thus erred when it imposed on
Solidbank the duty to call up L.C. Diaz to confirm the
withdrawal when no law requires this from banks and
when the teller had no reason to be suspicious of the
transaction.
Solidbank continues to foist the defense that Ilagan
made the withdrawal. Solidbank claims that since
Ilagan was also a messenger of L.C. Diaz, he was
familiar with its teller so that there was no more need
for the teller to verify the withdrawal. Solidbank relies
on the following statements in the Booking and
Information Sheet of Emerano Ilagan:
“. . . Ilagan also had with him (before
the withdrawal) a forged check of
PBC and indicated the amount of
P90,000 which he deposited in favor
of L.C. Diaz and Company. After
successfully withdrawing this large
sum of money, accused Ilagan gave
alias Rey (Noel Tamayo) his share of
the loot. Ilagan then hired a taxicab in
the amount of P1,000 to transport him
(Ilagan) to his home province at
Bauan, Batangas. Ilagan
extravagantly and lavishly spent his
money but a big part of his loot was
wasted in cockfight and horse racing.
Ilagan was apprehended and meekly
admitted his guilt.” (Emphasis
supplied.)
L.C. Diaz refutes Solidbank's contention by pointing
out that the person who withdrew the P300,000 was a
certain Noel Tamayo. Both the trial and appellate courts
stated that this Noel Tamayo presented the passbook
with the withdrawal slip.
We uphold the finding of the trial and appellate courts
that a certain Noel Tamayo withdrew the P300,000. The
Court is not a trier of facts. We find no justifiable reason
to reverse the factual finding of the trial court and the
Court of Appeals. The tellers who processed the deposit
of the P90,000 check and the withdrawal of the P300,000
were not presented during trial to substantiate
Solidbank's claim that Ilagan deposited the check and
made the questioned withdrawal. Moreover, the entry
quoted by Solidbank does not categorically state that
Ilagan presented the withdrawal slip and the passbook.
Doctrine of Last Clear Chance
The doctrine of last clear chance states that where both
parties are negligent but the negligent act of one is
appreciably later than that of the other, or where it is
impossible to determine whose fault or negligence
caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so, is
chargeable with the loss. Stated differently, the
antecedent negligence of the plaintiff does not preclude
him from recovering damages caused by the
supervening negligence of the defendant, who had the
last fair chance to prevent the impending harm by the
exercise of due diligence.
We do not apply the doctrine of last clear chance to the
present case. Solidbank is liable for breach of contract
due to negligence in the performance of its contractual
obligation to L.C. Diaz. This is a case of culpa
contractual, where neither the contributory negligence
of the plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability. Such
contributory negligence or last clear chance by the
plaintiff merely serves to reduce the recovery of
damages by the plaintiff but does not exculpate the
defendant from his breach of contract.
Mitigated Damages
Under Article 1172, "liability (for culpa contractual)
may be regulated by the courts, according to the
circumstances." This means that if the defendant
exercised the proper diligence in the selection and
supervision of its employee, or if the plaintiff was
guilty of contributory negligence, then the courts may
reduce the award of damages. In this case, L.C. Diaz
was guilty of contributory negligence in allowing a
withdrawal slip signed by its authorized signatories to
fall into the hands of an impostor. Thus, the liability of
Solidbank should be reduced.
In Philippine Bank of Commerce v. Court of Appeals, where
the Court held the depositor guilty of contributory
negligence, we allocated the damages between the
depositor and the bank on a 40-60 ratio. Applying the
same ruling to this case, we hold that L.C. Diaz must
shoulder 40% of the actual damages awarded by the
appellate court. Solidbank must pay he other 60% of the
actual damages.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED with MODIFICATION. Petitioner
Solidbank Corporation shall pay private respondent
L.C. Diaz and Company, CPA's only 60% of the actual
damages awarded by the Court of Appeals. The
remaining 40% of the actual damages shall be borne by
private respondent L.C. Diaz and Company, CPA's.
Proportionate costs. IDcTEA
SO ORDERED.
Davide, Jr., C.J., Vitug and Ynares-Santiago, JJ., concur.
Azcuna, J., is on official leave.
PHILIPPINE NATIONAL RAILWAYS, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 157658, 15 October 2007
NACHURA, J p:
Before the Court is a petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, seeking to annul and set aside the Decision
of the Court of Appeals (CA) in CA-G.R. CV No. 54906
which reversed the Decision of the Regional Trial Court
(RTC) of Manila, Branch 28, in Civil Case No. 92-61987.
The factual antecedents are as follows:
In the early afternoon of April 27, 1992, Jose Amores
(Amores) was traversing the railroad tracks in Kahilum
II Street, Pandacan, Manila. Before crossing the railroad
track, he stopped for a while then proceeded
accordingly. Unfortunately, just as Amores was at the
intersection, a Philippine National Railways' (PNR)
train with locomotive number T-517 turned up and
collided with the car.
At the time of the mishap, there was neither a signal
nor a crossing bar at the intersection to warn motorists
of an approaching train. Aside from the railroad track,
the only visible warning sign at that time was the
defective standard signboard "STOP, LOOK and
LISTEN" wherein the sign "Listen" was lacking while
that of "Look" was bent. No whistle blow from the train
was likewise heard before it finally bumped the car of
Amores. After impact, the car was dragged about ten
(10) meters beyond the center of the crossing. Amores
died as a consequence thereof.
On July 22, 1992, the heirs of Amores, consisting of his
surviving wife and six children, herein respondents,
filed a Complaint for Damages against petitioners PNR
and Virgilio J. Borja (Borja), PNR's locomotive driver at
the time of the incident, before the RTC of Manila. The
case was raffled to Branch 28 and was docketed as Civil
Case No. 92-61987. In their complaint, respondents
averred that the train's speedometer was defective, and
that the petitioners' negligence was the proximate cause
of the mishap for their failure to take precautions to
prevent injury to persons and property despite the
dense population in the vicinity. They then prayed for
actual and moral damages, as well as attorney's fees.
In their Answer, the petitioners denied the allegations,
stating that the train was railroad-worthy and without
any defect. According to them, the proximate cause of
the death of Amores was his own carelessness and
92
negligence, and Amores wantonly disregarded traffic
rules and regulations in crossing the railroad tracks and
trying to beat the approaching train. They admitted that
there was no crossing bar at the site of the accident
because it was merely a barangay road. PNR stressed
that it exercised the diligence of a good father of a
family in the selection and supervision of the
locomotive driver and train engineer, Borja, and that
the latter likewise used extraordinary diligence and
caution to avoid the accident. Petitioners further
asserted that respondents had the last clear chance to
avoid the accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC
rendered judgment in favor of the petitioners, the
dispositive portion of which reads:
xxx xxx xxx
The RTC rationalized that the proximate cause of the
collision was Amores' fatal misjudgment and the
reckless course of action he took in crossing the railroad
track even after seeing or hearing the oncoming train.
On appeal, the CA reversed the RTC decision, as
follows: xxx
xxx xxx xxx
In reversing the trial court's decision, the appellate
court found the petitioners negligent. The court based
the petitioners' negligence on the failure of PNR to
install a semaphore or at the very least, to post a
flagman, considering that the crossing is located in a
thickly populated area. Moreover, the signboard "Stop,
Look and Listen" was found insufficient because of its
defective condition as described above. Lastly, no
negligence could be attributed to Amores as he
exercised reasonable diligence in crossing the railroad
track.
Aggrieved by this reversal, the petitioners filed the
present petition for review on certiorari, raising the
following grounds:
xxx xxx xxx
The petitioners insist that Amores must have heard the
train's whistle and heeded the warning but, noting that
the train was still a distance away and moving slowly,
he must have calculated that he could beat it to the
other side of the track before the train would arrive at
the intersection. The petitioners likewise add that the
train was railroad-worthy and that its defective
speedometer did not affect the train's operation. Lastly,
they insist that evidence showed sufficient warning
signs strategically installed at the crossing to alert both
motorists and pedestrians.
Respondents, on the other hand, argue that the cause of
the accident was petitioners' carelessness, imprudence
and laxity in failing to provide a crossing bar and
93
keeper at the Kahilum II railway intersection.
Considering that Kahilum II Street is in the middle of a
thickly populated squatters' area, and many pedestrians
cross the railroad track, notwithstanding the fact that it
is a public street and a main thoroughfare utilized in
going to Herran Street, the presence of adequate
warning signals would have prevented the untimely
death of Amores. Another crucial point raised by the
respondents is the manner in which Borja applied the
brakes of the train only when the locomotive was
already very near Amores' car, as admitted by witness
Querimit. Finally, respondents claim that Borja's failure
to blow the locomotive's horn, pursuant to the usual
practice of doing the same 100 meters before reaching
the Kahilum II crossing point is an earmark of
recklessness on the part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is
whether the appellate court was correct in ascribing
negligence on the part of the petitioners. It was
ascertained beyond quandary that the proximate cause
of the collision is the negligence and imprudence of the
petitioner PNR and its locomotive driver, Borja, in
operating the passenger train.
As the action is predicated on negligence, the relevant
provision is Article 2176 of the New Civil Code, which
states 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 was no pre-
existing contractual relation between
the parties, is called quasi-delict and is
governed by the provisions of this
chapter.”
We have thoroughly reviewed the records of the case
and we find no cogent reason to reverse the appellate
court's decision. Negligence has been defined 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." Using the
aforementioned philosophy, it may be reliably
concluded that there is no hard and fast rule whereby
such degree of care and vigilance is calibrated; it is
dependent upon the circumstances in which a person
finds himself. All that the law requires is that it is
perpetually compelling upon a person to use that care
and diligence expected of sensible men under
comparable circumstances.
We hold that the petitioners were negligent when the
collision took place. The transcript of stenographic
notes reveals that the train was running at a fast speed
because notwithstanding the application of the
ordinary and emergency brakes, the train still dragged
the car some distance away from the point of impact.
Evidence likewise unveils the inadequate precautions
taken by petitioner PNR to forewarn the public of the
impending danger. Aside from not having any crossing
bar, no flagman or guard to man the intersection at all
times was posted on the day of the incident. A reliable
signaling device in good condition, not just a
dilapidated "Stop, Look and Listen" signage because of
many years of neglect, is needed to give notice to the
public. It is the responsibility of the railroad company
to use reasonable care to keep the signal devices in
working order. Failure to do so would be an indication
of negligence.
As held in the case of Philippine National Railway v.
Brunty, it may broadly be stated that railroad
companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and
property at railroad crossings, which duties pertain
both to the operation of trains and to the maintenance
of the crossings. Moreover, every corporation
constructing or operating a railway shall make and
construct at all points where such railway crosses any
public road, good, sufficient, and safe crossings, and
erect at such points, at sufficient elevation from such
road as to admit a free passage of vehicles of every
kind, a sign with large and distinct letters placed
thereon, to give notice of the proximity of the railway,
and warn persons of the necessity of looking out for
trains. The failure of the PNR to put a cross bar, or
signal light, flagman or switchman, or semaphore is
evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance
requiring it, because public safety demands that said
device or equipment be installed.
The petitioners insist that a train has a right-of-way in a
railroad crossing under the existing laws. They derive
their theory from Section 42 (d), Article III of R.A. 4136,
otherwise known as the Land Transportation and
Traffic Code, which states that:
“The driver of a vehicle upon a
highway shall bring to a full stop
such vehicle before traversing any
"through highway" or railroad
crossing: Provided, That when it is
apparent that no hazard exists, the
vehicle may be slowed down to five
miles per hour instead of bringing it
to a full stop.”
They claim that motorists are enjoined by law to stop,
look and listen before crossing railroad tracks and that
a heavier responsibility rests upon the motorists in
avoiding accidents at level crossings.
It is true that one driving an automobile must use his
faculties of seeing and hearing when nearing a railroad
crossing. However, the obligation to bring to a full stop
vehicles moving in public highways before traversing
any "through street" only accrues from the time the said
"through street" or crossing is so designated and sign-
posted. From the records of the case, it can be inferred
that Amores exercised all the necessary precautions
required of him as to avoid injury to himself and to
others. The witnesses' testimonies showed that Amores
slackened his speed, made a full stop, and then
proceeded to cross the tracks when he saw that there
was no impending danger to his life. Under these
circumstances, we are convinced that Amores did
everything, with absolute care and caution, to avoid the
collision.
It is settled that every person or motorist crossing a
railroad track should use ordinary prudence and
alertness to determine the proximity of a train before
attempting to cross. We are persuaded that the
circumstances were beyond the control of Amores for
no person would sacrifice his precious life if he had the
slightest opportunity to evade the catastrophe. Besides,
the authority in this jurisdiction is that the failure of a
railroad company to install a semaphore or at the very
least, to post a flagman or watchman to warn the public
of the passing train amounts to negligence.
In view of the foregoing, We will now discuss the
liability of petitioner PNR. Article 2180 of the New Civil
Code discusses the liability of the employer once
negligence or fault on the part of the employee has been
established. The employer is actually liable on the
assumption of juris tantum that the employer failed to
exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary
and can only be negated by showing due diligence in
the selection and supervision of the employee, a factual
matter that has not been demonstrated. 21 Even the
existence of hiring procedures and supervisory
employees cannot be incidentally invoked to overturn
the presumption of negligence on the part of the
employer.
WHEREFORE, the petition is DENIED. The Decision of
the Court of Appeals dated March 31, 2003 in CA-G.R.
CV No. 54906 is hereby AFFIRMED.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario and
Reyes, JJ., concur.
LUCAS, ET AL. TUAÑO
G.R. No. 178763, 21 April 2009
CHICO-NAZARIO, J p:
In this petition for review on certiorari under Rule 45 of
the Revised Rules of Court, petitioners Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas seek the reversal of the 27 September
2006 Decision and 3 July 2007 Resolution, both of the
Court of Appeals in CA-G.R. CV No. 68666, entitled
"Peter Paul Patrick Lucas, Fatima Gladys Lucas,
94
Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.
Tuaño".
In the questioned decision and resolution, the Court of
Appeals affirmed the 14 July 2000 Decision of the
Regional Trial Court (RTC), Branch 150, Makati City,
dismissing the complaint filed by petitioners in a civil
case entitled, "Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuaño", docketed as Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick
Lucas (Peter) contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye
and swollen eyelid, Peter made use of his health care
insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to
respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr.
Tuaño), an ophthalmologist at St. Luke's Medical
Center, for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated that
it had been nine (9) days since the problem with his
right eye began; and that he was already taking
Maxitrol to address the problem in his eye. According
to Dr. Tuaño, he performed "ocular routine
examination" on Peter's eyes, wherein: (1) a gross
examination of Peter's eyes and their surrounding area
was made; (2) Peter's visual acuity were taken; (3)
Peter's eyes were palpated to check the intraocular
pressure of each; (4) the motility of Peter's eyes was
observed; and (5) the ophthalmoscopy on Peter's eyes
was used. On that particular consultation, Dr. Tuaño
diagnosed that Peter was suffering from conjunctivitis
or "sore eyes". Dr. Tuaño then prescribed Spersacet-C
eye drops for Peter and told the latter to return for
follow-up after one week.
As instructed, Peter went back to Dr. Tuaño on 9
September 1988. Upon examination, Dr. Tuaño told
Peter that the "sore eyes" in the latter's right eye had
already cleared up and he could discontinue the
Spersacet-C. However, the same eye developed
Epidemic Kerato Conjunctivitis (EKC), a viral infection.
To address the new problem with Peter's right eye, Dr.
Tuaño prescribed to the former a steroid-based eye
drop called Maxitrol, a dosage of six (6) drops per day.
To recall, Peter had already been using Maxitrol prior
to his consult with Dr. Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a
follow-up consultation. After examining both of Peter's
eyes, Dr. Tuaño instructed the former to taper down the
dosage of Maxitrol, because the EKC in his right eye
had already resolved. Dr. Tuaño specifically cautioned
Peter that, being a steroid, Maxitrol had to be
withdrawn gradually; otherwise, the EKC might recur.
95
Complaining of feeling as if there was something in his
eyes, Peter returned to Dr. Tuaño for another check-up
on 6 October 1988. Dr. Tuaño examined Peter's eyes
and found that the right eye had once more developed
EKC. So, Dr. Tuaño instructed Peter to resume the use
of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of
Maxitrol, as it was out of stock. Consequently, Peter
was told by Dr. Tuano to take, instead, Blephamide,
another steroid-based medication, but with a lower
concentration, as substitute for the unavailable
Maxitrol, to be used three (3) times a day for five (5)
days; two (2) times a day for five (5) days; and then just
once a day.
Several days later, on 18 October 1988, Peter went to see
Dr. Tuaño at his clinic, alleging severe eye pain, feeling
as if his eyes were about to "pop-out", a headache and
blurred vision. Dr. Tuaño examined Peter's eyes and
discovered that the EKC was again present in his right
eye. As a result, Dr. Tuaño told Peter to resume the
maximum dosage of Blephamide.
Dr. Tuaño saw Peter once more at the former's clinic on
4 November 1988. Dr. Tuaño's examination showed
that only the periphery of Peter's right eye was positive
for EKC; hence, Dr. Tuaño prescribed a lower dosage of
Blephamide.
It was also about this time that Fatima Gladys Lucas
(Fatima), Peter's spouse, read the accompanying
literature of Maxitrol and found therein the following
warning against the prolonged use of such steroids:
WARNING:
Prolonged use may result in
glaucoma, with damage to the optic
nerve, defects in visual acuity and
fields of vision, and posterior,
subcapsular cataract formation.
Prolonged use may suppress the host
response and thus increase the
hazard of secondary ocular
infractions, in those diseases causing
thinning of the cornea or sclera,
perforations have been known to
occur with the use of topical steroids.
In acute purulent conditions of the
eye, steroids may mask infection or
enhance existing infection. If these
products are used for 10 days or
longer, intraocular pressure should
be routinely monitored even though
it may be difficult in children and
uncooperative patients.
Employment of steroid medication in
the treatment of herpes simplex
requires great caution.
xxx xxx xxx
 ADVERSE REACTIONS:
Adverse reactions have occurred with
steroid/anti-infective combination
drugs which can be attributed to the
steroid component, the anti-infective
component, or the combination. Exact
incidence figures are not available
since no denominator of treated
patients is available.
Reactions occurring most often from
the presence of the anti-infective
ingredients are allergic sensitizations.
The reactions due to the steroid
component in decreasing order to
frequency are elevation of intra-
ocular pressure (IOP) with possible
development of glaucoma, infrequent
optic nerve damage; posterior
subcapsular cataract formation; and
delayed wound healing.
Secondary infection: The
development of secondary has
occurred after use of combination
containing steroids and
antimicrobials. Fungal infections of
the correa are particularly prone to
develop coincidentally with long-
term applications of steroid. The
possibility of fungal invasion must be
considered in any persistent corneal
ulceration where steroid treatment
has been used.
Secondary bacterial ocular infection
following suppression of host
responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuaño's
clinic, complaining of "feeling worse". It appeared that
the EKC had spread to the whole of Peter's right eye yet
again. Thus, Dr. Tuaño instructed Peter to resume the
use of Maxitrol. Petitioners averred that Peter already
made mention to Dr. Tuaño during said visit of the
above-quoted warning against the prolonged use of
steroids, but Dr. Tuaño supposedly brushed aside
Peter's concern as mere paranoia, even assuring him
that the former was taking care of him (Peter).
Petitioners further alleged that after Peter's 26
November 1988 visit to Dr. Tuaño, Peter continued to
suffer pain in his right eye, which seemed to "progress",
with the ache intensifying and becoming more
frequent.
Upon waking in the morning of 13 December 1988,
Peter had no vision in his right eye. Fatima observed
that Peter's right eye appeared to be bloody and
swollen. Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that he
had been suffering from constant headache in the
afternoon and blurring of vision.
Upon examination, Dr. Tuaño noted the hardness of
Peter's right eye. With the use of a tonometer to verify
the exact intraocular pressure 17 (IOP) of Peter's eyes,
Dr. Tuaño discovered that the tension in Peter's right
eye was 39.0 Hg, while that of his left was 17.0 Hg.
Since the tension in Peter's right eye was way over the
normal IOP, which merely ranged from 10.0 Hg to 21.0
Hg, Dr. Tuaño ordered him to immediately discontinue
the use of Maxitrol and prescribed to the latter Diamox
and Normoglaucon, instead. Dr. Tuaño also required
Peter to go for daily check-up in order for the former to
closely monitor the pressure of the latter's eyes.
On 15 December 1988, the tonometer reading of Peter's
right eye yielded a high normal level, i.e., 21.0 Hg.
Hence, Dr. Tuaño told Peter to continue using Diamox
and Normoglaucon. But upon Peter's complaint of
"stomach pains and tingling sensation in his fingers",
Dr. Tuaño discontinued Peter's use of Diamox.
Peter went to see another ophthalmologist, Dr. Ramon
T. Batungbacal (Dr. Batungbacal), on 21 December 1988,
who allegedly conducted a complete ophthalmological
examination of Peter's eyes. Dr. Batungbacal's diagnosis
was Glaucoma O.D. He recommended Laser
Trabeculoplasty for Peter's right eye.
When Peter returned to Dr. Tuaño on 23 December
1988, the tonometer measured the IOP of Peter's right
eye to be 41.0 Hg, again, way above normal. Dr. Tuaño
addressed the problem by advising Peter to resume
taking Diamox along with Normoglaucon.
During the Christmas holidays, Peter supposedly
stayed in bed most of the time and was not able to
celebrate the season with his family because of the
debilitating effects of Diamox.
On 28 December 1988, during one of Peter's regular
follow-ups with Dr. Tuaño, the doctor conducted
another ocular routine examination of Peter's eyes. Dr.
Tuaño noted the recurrence of EKC in Peter's right eye.
Considering, however, that the IOP of Peter's right eye
was still quite high at 41.0 Hg, Dr. Tuaño was at a loss
as to how to balance the treatment of Peter's EKC vis-à-
vis the presence of glaucoma in the same eye. Dr.
Tuaño, thus, referred Peter to Dr. Manuel B. Agulto,
M.D. (Dr. Agulto), another ophthalmologist
specializing in the treatment of glaucoma. Dr. Tuaño's
letter of referral to Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for
evaluation & possible management. I
initially saw him Sept. 2, 1988
because of conjunctivitis. The latter
resolved and he developed EKC for
which I gave Maxitrol. The EKC was
recurrent after stopping steroid
drops. Around 1 month of steroid
96
 treatment, he noted blurring of vision
& pain on the R. however, I
continued the steroids for the sake of
the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was
definitely elevated. I stopped the
steroids immediately and has (sic)
been treating him medically.
It seems that the IOP can be
controlled only with oral Diamox,
and at the moment, the EKC has
recurred and I'm in a fix whether to
resume the steroid or not considering
that the IOP is still uncontrolled.
On 29 December 1988, Peter went to see Dr. Agulto at
the latter's clinic. Several tests were conducted thereat
to evaluate the extent of Peter's condition. Dr. Agulto
wrote Dr. Tuaño a letter containing the following
findings and recommendations:
Thanks for sending Peter Lucas. On
examination conducted vision was
20/25 R and 20/20L. Tension curve
19 R and 15 L at 1210 H while on
Normoglaucon BID OD & Diamox
1/2 tab every 6h po.
Slit lamp evaluation disclosed
subepithelial corneal defect outer OD.
There was circumferential peripheral
iris atrophy, OD. The lenses were
clear.
Funduscopy showed vertical cup disc
of 0.85 R and 0.6 L with temporal
slope R>L.
Zeiss gonioscopy revealed basically
open angles both eyes with
occasional PAS, 36 OD.
Rolly, I feel that Peter Lucas has
really sustained significant glaucoma
damage. I suggest that we do a
baseline visual fields and push
medication to lowest possible levels.
If I may suggest further, I think we
should prescribe Timolol BID OD in
lieu of Normoglaucon. If the IOP is
still inadequate, we may try D'epifrin
BID OD (despite low PAS). I'm in
favor of retaining Diamox or similar
CAI.
If fields show further loss in say — 3
mos. then we should consider
trabeculoplasty.
I trust that this approach will prove
reasonable for you and Peter.
97
Peter went to see Dr. Tuaño on 31 December 1988,
bearing Dr. Agulto's aforementioned letter. Though
Peter's right and left eyes then had normal IOP of 21.0
Hg and 17.0 Hg, respectively, Dr. Tuaño still gave him a
prescription for Timolol B.I.D. so Peter could
immediately start using said medication. Regrettably,
Timolol B.I.D. was out of stock, so Dr. Tuaño instructed
Peter to just continue using Diamox and Normoglaucon
in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter's
right eye remained elevated at 21.0 Hg, 42 as he had
been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuaño conducted a visual field
study of Peter's eyes, which revealed that the latter had
tubular vision in his right eye, while that of his left eye
remained normal. Dr. Tuaño directed Peter to
religiously use the Diamox and Normoglaucon, as the
tension of the latter's right eye went up even further to
41.0 Hg in just a matter of two (2) days, in the meantime
that Timolol B.I.D. and D'epifrin were still not available
in the market. Again, Dr. Tuaño advised Peter to come
for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuaño on the 7th,
13th, 16th and 20th of January 1989 for check-up and
IOP monitoring.
In the interregnum, however, Peter was prodded by his
friends to seek a second medical opinion. On 13 January
1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr.
Lapuz), an ophthalmologist, who, in turn, referred
Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino),
another ophthalmologist who specializes in the
treatment of glaucoma and who could undertake the
long term care of Peter's eyes.
According to petitioners, after Dr. Aquino conducted an
extensive evaluation of Peter's eyes, the said doctor
informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum
borderline tension. Dr. Aquino also confirmed Dr.
Tuaño's diagnosis of tubular vision in Peter's right eye.
Petitioners claimed that Dr. Aquino essentially told
Peter that the latter's condition would require lifetime
medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2)
procedures of laser trabeculoplasty to attempt to
control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma and
blaming Dr. Tuaño for the same, Peter, joined by: (1)
Fatima, his spouse; 46 (2) Abbeygail, his natural child;
47 and (3) Gillian, his legitimate child 48 with Fatima,
instituted on 1 September 1992, a civil complaint for
damages against Dr. Tuaño, before the RTC, Branch
150, Quezon City. The case was docketed as Civil Case
No. 92-2482.
In their Complaint, petitioners specifically averred that
as the "direct consequence of [Peter's] prolonged use of
Maxitrol, [he] suffered from steroid induced glaucoma
which caused the elevation of his intra-ocular pressure.
The elevation of the intra-ocular pressure of [Peter's
right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total
blindness".
xxx xxx xxx
In a Decision dated 14 July 2000, the RTC dismissed
Civil Case No. 92-2482 "for insufficiency of evidence".
The decretal part of said Decision reads:
Wherefore, premises considered, the
instant complaint is dismissed for
insufficiency of evidence. The counter
claim (sic) is likewise dismissed in the
absence of bad faith or malice on the
part of plaintiff in filing the suit.
The RTC opined that petitioners failed to prove by
preponderance of evidence that Dr. Tuaño was
negligent in his treatment of Peter's condition. In
particular, the record of the case was bereft of any
evidence to establish that the steroid medication and its
dosage, as prescribed by Dr. Tuaño, caused Peter's
glaucoma. The trial court reasoned that the "recognized
standards of the medical community has not been
established in this case, much less has causation been
established to render [Tuaño] liable". According to the
RTC:
xxx xxx xxx
Undaunted, petitioners appealed the foregoing RTC
decision to the Court of Appeals. Their appeal was
docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a
decision in CA-G.R. CV No. 68666 denying petitioners'
recourse and affirming the appealed RTC Decision. The
fallo of the judgment of the appellate court states:
xxx xxx xxx
A reading of the afore-quoted reversible errors
supposedly committed by the Court of Appeals in its
Decision and Resolution would reveal that petitioners
are fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to
establish petitioners' entitlement to any kind of
damage. Therefore, it could be said that the sole issue
for our resolution in the Petition at bar is whether the
Court of Appeals committed reversible error in
affirming the judgment of the RTC that petitioners
failed to prove, by preponderance of evidence, their
claim for damages against Dr. Tuaño.
Evidently, said issue constitutes a question of fact, as
we are asked to revisit anew the factual findings of the
Court of Appeals, as well as of the RTC. In effect,
petitioners would have us sift through the evidence on
record and pass upon whether there is sufficient basis
to establish Dr. Tuaño's negligence in his treatment of
Peter's eye condition. This question clearly involves a
factual inquiry, the determination of which is not
within the ambit of this Court's power of review under
Rule 45 of the 1997 Rules Civil Procedure, as amended.
Elementary is the principle that this Court is not a trier
of facts; only errors of law are generally reviewed in
petitions for review on certiorari criticizing decisions of
the Court of Appeals. Questions of fact are not
entertained.
Nonetheless, the general rule that only questions of law
may be raised on appeal in a petition for review under
Rule 45 of the Rules of Court admits of certain
exceptions, including the circumstance when the
finding of fact of the Court of Appeals is premised on
the supposed absence of evidence, but is contradicted
by the evidence on record. Although petitioners may
not explicitly invoke said exception, it may be gleaned
from their allegations and arguments in the instant
Petition.
Petitioners contend, that "[c]ontrary to the findings of
the Honorable Court of Appeals, [they] were more than
able to establish that: Dr. Tuaño ignored the standard
medical procedure for ophthalmologists, administered
medication with recklessness, and exhibited an absence
of competence and skills expected from him". 72
Petitioners reject the necessity of presenting expert
and/or medical testimony to establish (1) the standard
of care respecting the treatment of the disorder
affecting Peter's eye; and (2) whether or not negligence
attended Dr. Tuaño's treatment of Peter, because, in
their words —
That Dr. Tuaño was grossly negligent
in the treatment of Peter's simple eye
ailment is a simple case of cause and
effect. With mere documentary
evidence and based on the facts
presented by the petitioners,
respondent can readily be held liable
for damages even without any expert
testimony. In any case, however, and
contrary to the finding of the trial
court and the Court of Appeals, there
was a medical expert presented by
the petitioner showing the
recklessness committed by [Dr.
Tuaño] — Dr. Tuaño himself.
[Emphasis supplied.]
They insist that Dr. Tuaño himself gave sufficient
evidence to establish his gross negligence that
ultimately caused the impairment of the vision of
Peter's right eye, i.e., that "[d]espite [Dr. Tuaño's]
knowledge that 5% of the population reacts adversely
to Maxitrol, [he] had no qualms whatsoever in
98
prescribing said steroid to Peter without first
determining whether or not the (sic) Peter belongs to
the 5%".
We are not convinced. The judgments of both the Court
of Appeals and the RTC are in accord with the evidence
on record, and we are accordingly bound by the
findings of fact made therein.
Petitioners' position, in sum, is that Peter's glaucoma is
the direct result of Dr. Tuaño's negligence in his
improper administration of the drug Maxitrol; "thus,
[the latter] should be liable for all the damages suffered
and to be suffered by [petitioners]". Clearly, the present
controversy is a classic illustration of a medical
negligence case against a physician based on the latter's
professional negligence. In this type of suit, the patient
or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to
exercise that degree of skill, care, and learning
possessed by other persons in the same profession; and
that as a proximate result of such failure, the patient or
his heirs suffered damages.
For lack of a specific law geared towards the type of
negligence committed by members of the medical
profession, such claim for damages is almost always
anchored on the alleged violation of Article 2176 of the
Civil Code, which states that:
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.
In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just
like any other proceeding for damages, four essential
(4) elements i.e., (1) duty; (2) breach; (3) injury; and (4)
proximate causation, 76 must be established by the
plaintiff/s. All the four (4) elements must co-exist in
order to find the physician negligent and, thus, liable
for damages.
When a patient engages the services of a physician, a
physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and
purposes, represents that he has the needed training
and skill possessed by physicians and surgeons
practicing in the same field; and that he will employ
such training, care, and skill in the treatment of the
patient. Thus, in treating his patient, a physician is
under a duty to [the former] to exercise that degree of
care, skill and diligence which physicians in the same
general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
99
Stated otherwise, the physician has the duty to use at
least the same level of care that any other reasonably
competent physician would use to treat the condition
under similar circumstances.
This standard level of care, skill and diligence is a
matter best addressed by expert medical testimony,
because the standard of care in a medical malpractice
case is a matter peculiarly within the knowledge of
experts in the field.
There is breach of duty of care, skill and diligence, or
the improper performance of such duty, by the
attending physician when the patient is injured in body
or in health [and this] constitutes the actionable
malpractice. Proof of such breach must likewise rest
upon the testimony of an expert witness that the
treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which
physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and
exercise in like cases.
Even so, proof of breach of duty on the part of the
attending physician is insufficient, for there must be a
causal connection between said breach and the
resulting injury sustained by the patient. Put in another
way, in order that there may be a recovery for an injury,
it must be shown that the "injury for which recovery is
sought must be the legitimate consequence of the
wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes"; that
is, the negligence must be the proximate cause of the
injury. And the proximate cause of an injury is that
cause, which, in the natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not
have occurred.
Just as with the elements of duty and breach of the
same, in order to establish the proximate cause [of the
injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the
alleged professional negligence caused [the patient's]
injury is generally one for specialized expert knowledge
beyond the ken of the average layperson; using the
specialized knowledge and training of his field, the
expert's role is to present to the [court] a realistic
assessment of the likelihood that [the physician's]
alleged negligence caused [the patient's] injury.
From the foregoing, it is apparent that medical
negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the
expert opinion of qualified physicians [or surgeons]
stems from the former's realization that the latter
possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating;
hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-
patient relationship developed between Dr. Tuaño and
Peter when Peter went to see the doctor on 2 September
1988, seeking a consult for the treatment of his sore
eyes. Admittedly, Dr. Tuaño, an ophthalmologist,
prescribed Maxitrol when Peter developed and had
recurrent EKC. Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in
sterile form for topical application. It is the drug which
petitioners claim to have caused Peter's glaucoma.
However, as correctly pointed out by the Court of
Appeals, "[t]he onus probandi was on the patient to
establish before the trial court that the physicians
ignored standard medical procedure, prescribed and
administered medication with recklessness and
exhibited an absence of the competence and skills
expected of general practitioners similarly situated".
Unfortunately, in this case, there was absolute failure
on the part of petitioners to present any expert
testimony to establish: (1) the standard of care to be
implemented by competent physicians in treating the
same condition as Peter's under similar circumstances;
(2) that, in his treatment of Peter, Dr. Tuaño failed in his
duty to exercise said standard of care that any other
competent physician would use in treating the same
condition as Peter's under similar circumstances; and
(3) that the injury or damage to Peter's right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as
prescribed by Dr. Tuaño. Petitioners' failure to prove
the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuaño failed to follow in
Peter's case the required procedure for the prolonged
use of Maxitrol. But what is actually the required
procedure in situations such as in the case at bar? To be
precise, what is the standard operating procedure when
ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence
required of Dr. Tuaño under the circumstances, we
have no means to determine whether he was able to
comply with the same in his diagnosis and treatment of
Peter. This Court has no yardstick upon which to
evaluate or weigh the attendant facts of this case to be
able to state with confidence that the acts complained
of, indeed, constituted negligence and, thus, should be
the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr.
Tuaño should have determined first whether Peter was
a "steroid responder". Yet again, petitioners did not
present any convincing proof that such determination is
actually part of the standard operating procedure
which ophthalmologists should unerringly follow prior
to prescribing steroid medications.
In contrast, Dr. Tuaño was able to clearly explain that
what is only required of ophthalmologists, in cases such
as Peter's, is the conduct of standard tests/procedures
known as "ocular routine examination", 88 composed of
five (5) tests/procedures — specifically, gross
examination of the eyes and the surrounding area;
taking of the visual acuity of the patient; checking the
intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on the
patient's eye — and he did all those tests/procedures
every time Peter went to see him for follow-up
consultation and/or check-up.
We cannot but agree with Dr. Tuaño's assertion that
when a doctor sees a patient, he cannot determine
immediately whether the latter would react adversely
to the use of steroids; all the doctor can do is map out a
course of treatment recognized as correct by the
standards of the medical profession. It must be
remembered that a physician is not an insurer of the
good result of treatment. The mere fact that the patient
does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care. The result is
not determinative of the performance [of the physician]
and he is not required to be infallible.
Moreover, that Dr. Tuaño saw it fit to prescribe
Maxitrol to Peter was justified by the fact that the latter
was already using the same medication when he first
came to see Dr. Tuaño on 2 September 1988 and had
exhibited no previous untoward reaction to that
particular drug.
Also, Dr. Tuaño categorically denied petitioners' claim
that he never monitored the tension of Peter's eyes
while the latter was on Maxitrol. Dr. Tuaño testified
that he palpated Peter's eyes every time the latter came
for a check-up as part of the doctor's ocular routine
examination, a fact which petitioners failed to rebut. Dr.
Tuaño's regular conduct of examinations and tests to
ascertain the state of Peter's eyes negate the very basis
of petitioners' complaint for damages. As to whether
Dr. Tuaño's actuations conformed to the standard of
care and diligence required in like circumstances, it is
presumed to have so conformed in the absence of
evidence to the contrary.
Even if we are to assume that Dr. Tuaño committed
negligent acts in his treatment of Peter's condition, the
causal connection between Dr. Tuaño's supposed
negligence and Peter's injury still needed to be
established. The critical and clinching factor in a
medical negligence case is proof of the causal
connection between the negligence which the evidence
established and the plaintiff's injuries. The plaintiff
must plead and prove not only that he has been injured
and defendant has been at fault, but also that the
defendant's fault caused the injury. A verdict in a
malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a
reasonable medical probability based upon competent
expert testimony.
100

The causation between the physician's negligence and
the patient's injury may only be established by the
presentation of proof that Peter's glaucoma would not
have occurred but for Dr. Tuaño's supposed negligent
conduct. Once more, petitioners failed in this regard.
Dr. Tuaño does not deny that the use of Maxitrol
involves the risk of increasing a patient's IOP. In fact,
this was the reason why he made it a point to palpate
Peter's eyes every time the latter went to see him — so
he could monitor the tension of Peter's eyes. But to say
that said medication conclusively caused Peter's
glaucoma is purely speculative. Peter was diagnosed
with open-angle glaucoma. This kind of glaucoma is
characterized by an almost complete absence of
symptoms and a chronic, insidious course. In open-
angle glaucoma, halos around lights and blurring of
vision do not occur unless there has been a sudden
increase in the intraocular vision. Visual acuity remains
good until late in the course of the disease. Hence, Dr.
Tuaño claims that Peter's glaucoma "can only be long
standing . . . because of the large C:D ratio", and that
"[t]he steroids provoked the latest glaucoma to be
revealed earlier" was a blessing in disguise "as [Peter]
remained asymptomatic prior to steroid application".
Who between petitioners and Dr. Tuaño is in a better
position to determine and evaluate the necessity of
using Maxitrol to cure Peter's EKC vis-à-vis the
attendant risks of using the same?
That Dr. Tuaño has the necessary training and skill to
practice his chosen field is beyond cavil. Petitioners do
not dispute Dr. Tuaño's qualifications — that he has
been a physician for close to a decade and a half at the
time Peter first came to see him; that he has had various
medical training; that he has authored numerous
papers in the field of ophthalmology, here and abroad;
that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching
posts (at the time of the filing of the present complaint,
he was the Chair of the Department of Ophthalmology
and an Associate Professor at the University of the
Philippines-Philippine General Hospital and St. Luke's
Medical Center, respectively); and that he held an
assortment of positions in numerous medical
organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine
Board of Ophthalmology, Philippine Society of
Ophthalmic Plastic and Reconstructive Surgery,
Philippine Journal of Ophthalmology, Association of
Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a
physician are admitted, as in the instant case, there is an
inevitable presumption that in proper cases, he takes
the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless
the contrary is sufficiently established. In making the
judgment call of treating Peter's EKC with Maxitrol, Dr.
Tuaño took the necessary precaution by palpating
101
Peter's eyes to monitor their IOP every time the latter
went for a check-up, and he employed the best of his
knowledge and skill earned from years of training and
practice.
In contrast, without supporting expert medical
opinions, petitioners' bare assertions of negligence on
Dr. Tuaño's part, which resulted in Peter's glaucoma,
deserve scant credit.
Our disposition of the present controversy might have
been vastly different had petitioners presented a
medical expert to establish their theory respecting Dr.
Tuaño's so-called negligence. In fact, the record of the
case reveals that petitioners' counsel recognized the
necessity of presenting such evidence. Petitioners even
gave an undertaking to the RTC judge that Dr. Agulto
or Dr. Aquino would be presented. Alas, no follow-
through on said undertaking was made.
The plaintiff in a civil case has the burden of proof as he
alleges the affirmative of the issue. However, in the
course of trial in a civil case, once plaintiff makes out a
prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiff's
prima facie case; otherwise, a verdict must be returned
in favor of plaintiff. The party having the burden of
proof must establish his case by a preponderance of
evidence. The concept of "preponderance of evidence"
refers to evidence which is of greater weight or more
convincing than that which is offered in opposition to
it; in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition
thereto. Rule 133, Section 1 of the Revised Rules of
Court provides the guidelines for determining
preponderance of evidence, thus:
In civil cases, the party having the
burden of proof must establish his
case by a preponderance of evidence.
In determining where the
preponderance or superior weight of
evidence on the issues involved lies
the court may consider all the facts
and circumstances of the case, the
witnesses' manner of testifying, their
intelligence, their means and
opportunity of knowing the facts to
which they are testifying, the nature
of the facts to which they testify, the
probability or improbability of their
testimony, their interest or want of
interest, and also their personal
credibility so far as the same
legitimately appear upon the trial.
The court may also consider the
number of witnesses, though the
preponderance is not necessarily with
the greater number.
Herein, the burden of proof was clearly upon
petitioners, as plaintiffs in the lower court, to establish
their case by a preponderance of evidence showing a
reasonable connection between Dr. Tuaño's alleged
breach of duty and the damage sustained by Peter's
right eye. This, they did not do. In reality, petitioners'
complaint for damages is merely anchored on a
statement in the literature of Maxitrol identifying the
risks of its use, and the purported comment of Dr.
Agulto — another doctor not presented as witness
before the RTC — concerning the prolonged use of
Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical
treatment is a medical question that should have been
presented to experts. If no standard is established
through expert medical witnesses, then courts have no
standard by which to gauge the basic issue of breach
thereof by the physician or surgeon. The RTC and
Court of Appeals, and even this Court, could not be
expected to determine on its own what medical
technique should have been utilized for a certain
disease or injury. Absent expert medical opinion, the
courts would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño liable
for any medical negligence or malpractice where there
is no evidence, in the nature of expert testimony, to
establish that in treating Peter, Dr. Tuaño failed to
exercise reasonable care, diligence and skill generally
required in medical practice. Dr. Tuaño's testimony,
that his treatment of Peter conformed in all respects to
standard medical practice in this locality, stands
unrefuted. Consequently, the RTC and the Court of
Appeals correctly held that they had no basis at all to
rule that petitioners were deserving of the various
damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant petition
is DENIED for lack of merit. The assailed Decision
dated 27 September 2006 and Resolution dated 3 July
2007, both of the Court of Appeals in CA-G.R. CV No.
68666, are hereby AFFIRMED. No cost.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Nachura and
Peralta, JJ., concu
c. Proof of negligence
PHILIPPINE LONG DISTANCE TELEPHONE CO.,
INC. vs. COURT OF APPEALS, ET AL.
G.R. No. 57079, 29 September 1989, 178 SCRA 94
REGALADO, J p:
This case had its inception in an action for damages
instituted in the former Court of First Instance of
Negros Occidental by private respondent spouses
against petitioner Philippine Long Distance Telephone
Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their jeep
ran over a mound of earth and fell into an open trench,
an excavation allegedly undertaken by PLDT for the
installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban
failed to notice the open trench which was left
uncovered because of the creeping darkness and the
lack of any warning light or signs. As a result of the
accident, respondent Gloria Esteban allegedly sustained
injuries on her arms, legs and face, leaving a permanent
scar on her cheek, while the respondent husband
suffered cut lips. In addition, the windshield of the jeep
was shattered.
PLDT, in its answer, denies liability on the contention
that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent
contractor which undertook the construction of the
manhole and the conduit system. Accordingly, PLDT
filed a third-party complaint against Barte alleging that,
under the terms of their agreement, PLDT should in no
manner be answerable for any accident or injuries
arising from the negligence or carelessness of Barte or
any of its employees. In answer thereto, Barte claimed
that it was not aware nor was it notified of the accident
involving respondent spouses and that it had complied
with the terms of its contract with PLDT by installing
the necessary and appropriate standard signs in the
vicinity of the work site, with barricades at both ends of
the excavation and with red lights at night along the
excavated area to warn the traveling public of the
presence of excavations.
On October 1, 1974, the trial court rendered a decision
in favor of private respondents, the decretal part of
which reads:
xxx xxx xxx
From this decision both PLDT and private respondents
appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
xxx xxx xxx
Prescinding from the aforesaid procedural lapses into
the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24, 1980
which we quote with approval:
"First. Plaintiff's jeep was running
along the inside lane of Lacson Street.
If it had remained on that inside lane,
102
 it would not have hit the ACCIDENT
MOUND.
"Exhibit B shows, through the
tiremarks, that the ACCIDENT
MOUND was hit by the jeep
swerving from the left that is,
swerving from the inside lane. What
caused the swerving is not disclosed;
but, as the cause of the accident,
defendant cannot be made liable for
the damages suffered by plaintiffs.
The accident was not due to the
absence of warning signs, but to the
unexplained abrupt swerving of the
jeep from the inside lane. That may
explain plaintiff-husband's insistence
that he did not see the ACCIDENT
MOUND for which reason he ran
into it.
"Second. That plaintiff's Jeep was on
the inside lane before it swerved to
hit the ACCIDENT MOUND could
have been corroborated by a picture
showing Lacson Street to the south of
the ACCIDENT MOUND.
"It has been stated that the ditches
along Lacson Street had already been
covered except the 3 or 4 meters
where the ACCIDENT MOUND was
located. Exhibit B-1 shows that the
ditches on Lacson Street north of the
ACCIDENT MOUND had already
been covered, but not in such a way
as to allow the outer lane to be freely
and conveniently passable to
vehicles. The situation could have
been worse to the south of the
ACCIDENT MOUND for which
reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running
at 25 kilometers an hour as plaintiff-
husband claimed. At that speed, he
could have braked the vehicle the
moment it struck the ACCIDENT
MOUND. The jeep would not have
climbed the ACCIDENT MOUND
several feet as indicated by the
tiremarks in Exhibit B. The jeep must
have been running quite fast. If the
jeep had been braked at 25 kilometers
an hour, plaintiffs would not have
been thrown against the windshield
and they would not have suffered
their injuries.
"Fourth. If the accident did not
happen because the jeep was running
103
quite fast on the inside lane and for
some reason or other it had to swerve
suddenly to the right and had to
climb over the ACCIDENT MOUND,
then plaintiff-husband had not
exercised the diligence of a good
father of a family to avoid the
accident. With the drizzle, he should
not have run on dim lights, but
should have put on his regular lights
which should have made him see the
ACCIDENT MOUND in time. If he
was running on the outside lane at 25
kilometers an hour, even on dim
lights, his failure to see the
ACCIDENT MOUND in time to
brake the car was negligence on his
part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3
feet high and 1-1/2 feet wide. If he
did not see the ACCIDENT MOUND
in time, he would not have seen any
warning sign either. He knew of the
existence and location of the
ACCIDENT MOUND, having seen it
many previous times. With ordinary
precaution, he should have driven his
jeep on the night of the accident so as
to avoid hitting the ACCIDENT
MOUND."
The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right
to recover damages. The perils of the road were
known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only purpose of
said signs was to inform and warn the public of the
presence of excavations on the site. The private
respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to fall
into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes
the proximate cause only when the doing of the said
omitted act would have prevented the injury. It is basic
that private respondents cannot charge PLDT for their
injuries where their own failure to exercise due and
reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last
clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had
knowledge of the presence and location of the
excavations there. It was his negligence that exposed
him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent
Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the
part of PLDT. We have for consideration only the self-
serving testimony of respondent Antonio Esteban and
the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of
the incident and the non-submission of a medical report
from the hospital where private respondents were
allegedly treated have not even been satisfactorily
explained.
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980 —
"(a) There was no third party
eyewitness of the accident. As to how
the accident occurred, the Court can
only rely on the testimonial evidence
of plaintiffs themselves, and such
evidence should be very carefully
evaluated, with defendant, as the
party being charged, being given the
benefit of any doubt. Definitely
without ascribing the same
motivation to plaintiffs, another
person could have deliberately
engineered a similar accident in the
hope and expectation that the Court
can grant him substantial moral and
exemplary damages from the big
corporation that defendant is. The
statement is made only to stress the
disadvantageous position of
defendant which would have
extreme difficulty in contesting such
person's claim. If there were no
witness or record available from the
police department of Bacolod,
defendant would not be able to
determine for itself which of the
conflicting testimonies of plaintiffs is
correct as to the report or non-report
of the accident to the police
department."
A person claiming damages for the negligence of
another has the burden of proving the existence of such
fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively
established by competent evidence. Whosoever relies
on negligence for his cause of action has the burden in
the first instance of proving the existence of the same if
contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of
Appeals, dated March 11, 1980 and September 3, 1980,
are hereby SET ASIDE. Its original decision,
promulgated on September 25, 1979, is hereby
REINSTATED and AFFIRMED.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ.,
concur.
d. Presumption of Negligence
1. Res ipsa loquitur
AFRICA, ET AL. vs. CALTEX (PHIL.) INC., ET AL.
G.R. No. L-12986, 31 March 1966, 16 SCRA 448.
MAKALINTAL, J p:
This case is before us on a petition for review of the
decision of the Court of Appeals, which affirmed that of
the Court of First Instance of Manila dismissing
petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and 1903
of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal
Avenue, Manila. It started while gasoline was being
hosed from a tank truck into the underground storage,
right at the opening of the receiving tank where the
nozzle of the hose was inserted. The fire spread to and
burned several neighboring houses, including the
personal properties and effects inside them. Their
owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the
first as alleged owner of the station and the second as
its agent in charge of operation. Negligence on the part
of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that
petitioners failed to prove negligence and that
respondents had exercised due care in the premises and
with respect to the supervision of their employees.
xxx xxx xxx
The next question is whether or not, without proof as to
the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on
the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability
. . . in the Philippines, there seems to be nothing
definite," and that while the rules do not prohibit its
adoption in appropriate cases, "in the case at bar,
104
however, we find no practical use for such doctrine."
The question deserves more than such summary
dismissal. The doctrine has actually been applied in this
jurisdiction in the case of Espiritu vs. Philippine Power
and Development Co. (C.A. G. R. No. L-324O-R,
September 20, 1949), wherein the decision of the Court
of Appeals was penned by Mr. Justice J.B.L. Reyes now
a member of the Supreme Court.
The facts of that case are stated in the decision as
follows:
"In the afternoon of May 5, 1946,
while the plaintiff-appellee and other
companions were loading grass
between the municipalities of Bay
and Calauan, in the province of
Laguna, with clear weather and
without any wind blowing, an
electric transmission wire, installed
and maintained by the defendant
Philippine Power and Development
Co., Inc. alongside the road, suddenly
parted, and one of the broken ends
hit the head of the plaintiff as he was
about to board the truck. As a result,
plaintiff received the full shock of
4,400 volts carried by the wire and
was knocked unconscious to the
ground. The electric charge coursed
through his body and caused
extensive and serious multiple burns
from skull to legs, leaving the bone
exposed in some parts and causing
intense pain and wounds that were
not completely healed when the case
was tried on June 18, 1947, over one
year after the mishap."
The defendant therein disclaimed liability on the
ground that the plaintiff had failed to show any specific
act of negligence but the appellate court overruled the
defense under the doctrine of res ipsa loquitur. The court
said:
"The first point is directed against the
sufficiency of plaintiff's evidence to
place appellant on its defense. While
it is the rule, as contended by the
appellant, that in case of
noncontractual negligence, or culpa
aquiliana, the burden of proof is on
the plaintiff to establish that the
proximate cause of his injury was the
negligence of the defendant, it is also
a recognized principle that 'Where
the thing which caused injury,
without fault of the injured person, is
under the exclusive control of the
defendant and the injury is such as in
the ordinary course of things does
not occur if those having such control
105
use proper care, it affords reasonable
evidence, in the absence of the
explanation that the injury arose from
defendant's want of care.'
"And the burden of evidence is
shifted to him to establish that he has
observed due care and diligence. (San
Juan Light & Transit Co. vs. Requena,
224 U.S. 89, 56 L. ed. 68 ). This rule is
known by the name of res ipsa loquitur
(the transaction speaks for itself), and
is peculiarly applicable to the case at
bar, where it is unquestioned that the
plaintiff had every right to be on the
highway, and the electric wire was
under the sole control of defendant
company. In the ordinary course of
events, electric wires do not part
suddenly in fair weather and injure
people, unless they are subjected to
unusual strain and stress or there are
defects in their installation,
maintenance and supervision; just as
barrels do not ordinarily roll out of
the warehouse windows to injure
passersby unless some one was
negligent. (Byrne vs. Boadle, 2 H & Co.
22; 159 Eng. Reprint 299, the leading
case that established that rule).
Consequently, in the absence of
contributory negligence (which is
admittedly not present) the fact that
the wire snapped suffices to raise a
reasonable presumption of
negligence in the installation, care
and maintenance. Thereafter, as
observed by Chief Baron Pollock, if
there are any facts inconsistent with
negligence, it is for the defendant to
prove.'"
It is true of course that decisions of the Court of
Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for
not applying the particular doctrine of res ipsa loquitur
in the case at bar. Gasoline is a high]y combustible
material, in the storage and sale of which extreme care
must be taken. On the other hand, fire is not considered
a fortuitous event, as it arises almost invariably from
some act of man. A case strikingly similar to the one
before Us is Jones vs. Shell Petroleum Corporation, et al.,
171 So. 447;
"Arthur O. Jones is the owner of a
building in the city of Hammon
which in the year 1934 was leased to
the Shell Petroleum Corporation for a
gasoline filling station. On October 8,
1934, during the term of the lease,
while gasoline was being transferred,
from the tank wagon, also operated
 by the Shell Petroleum Corporation,
to the underground tank of the
station, a fire started with resulting
damages to the building owned by
Jones. Alleging that the damages to
his building amounted to $516.95,
Jones sued the Shell Petroleum
Corporation for the recovery of that
amount. The judge of the district
court, after hearing the testimony,
concluded that plaintiff was entitled
to a recovery and rendered judgment
in his favor for $427.82. The Court of
Appeals for the First Circuit reversed
this judgment, on the ground the
testimony failed to show with
reasonable certainty any negligence
on the part of the Shell Petroleum
Corporation or any of its agents or
employees. Plaintiff applied to this
Court for a Writ of Review which
was granted, and the case is now
before us for decision."
In resolving the issue of negligence, the Supreme Court
of Louisiana held:
"Plaintiff's petition contains two
distinct charges of negligence — one
relating to the cause of the fire and
the other relating to the spreading of
the gasoline about the filling station.
"Other than an expert to asses the
damages caused plaintiff's building
by the fire, no witnesses were placed
on the stand by the defendant.
"Taking up plaintiff's charge of
negligence relating to the cause of the
fire, we find it established by the
record that the filling station and the
tank truck were under the control of
the defendant and operated by its
agents or employees. We further find
from the uncontradicted testimony of
plaintiff's witnesses that fire started
in the underground tank attached to
the filling station while it was being
filled from the tank truck and while
both the tank and the truck were in
charge of and being operated by the
agents or employees of the
defendant, extended to the hose and
tank truck, and was communicated
from the burning hose, tank truck,
and escaping gasoline to the building
owned by the plaintiff.
Predicated on these circumstances
and the further circumstance of
defendants failure to explain the
cause of the fire or to show its lack of
knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa
loquitur. There are many cases in
which the doctrine may be
successfully invoked and this, we
think, is one of them.
Where the thing which caused the
injury complained of is shown to be
under the management of defendant
or his servants and the accident is
such as in the ordinary course of
things does not happen if those who
have its management or control use
proper care, it affords reasonable
evidence, in absence of explanation
by defendant, that the accident arose
from want of care. (45 C. J. #768, p.
1193).
"This statement of the rule of res ipsa
loquitur has been widely approved
and adopted by the courts of last
resort. Some of the cases in this
jurisdiction in which the doctrine has
been applied are the following, viz.;
Maus vs. Broderick, 51 La. Ann. 1153,
25 So. 977; Hebert vs. Lake Charles Ice
etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505;
Willis vs. Vicksburg, etc., R. Co., 115
La. 53, 38 So. 892; Bents, vs. Page, 115
La. 560, 39 So. 599."
The principle enunciated in the aforequoted case
applies with equal force here. The gasoline station, with
all its appliances, equipment and employees, was under
the control of appellees. A fire occurred therein and
spread to and burned the neighboring houses. The
persons who knew or could have known how the fire
started were appellees and their employees, but they
gave no explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened
because of want of care.
In the report submitted by Captain Leoncio Mariano of
the Manila Police Department (Exh. X-1 Africa) the
following appears:
"Investigation of the basic complaint
disclosed that the Caltex Gasoline
Station complained of occupies a lot
approximately 10 m x 10 m at the
southwest corner of Rizal Avenue
and Antipolo. The location is within a
very busy business district near the
Obrero Market, a railroad crossing
and very thickly populated
neighborhood where a great number
of people mill around throughout the
day until late at night. The
106
 circumstances put the gasoline
station in a situation primarily
prejudicial to its operation because
the passersby, those waiting for buses
or transportation, those waiting to
cross the streets and others loafing
around have to occupy not only the
sidewalks but also portion of the
gasoline station itself. Whatever be
the activities of these people smoking
or lighting a cigarette cannot be
excluded and this constitute a
secondary hazard to its operation
which in turn endangers the entire
neighborhood to conflagration.
"Furthermore, aside from precautions
already taken by its operator the
concrete walls south and west
adjoining the neighborhood are only
2 1/2 meters high at most and cannot
avoid the flames from leaping over it
in case of fire.
"Records show that there have been
two cases of fire which caused not
only material damages but
desperation and also panic in the
neighborhood.
"Although the soft drinks stand had
been eliminated, this gasoline service
station is also used by its operator as
a garage and repair shop for his fleet
of taxicabs numbering ten or more,
adding another risk to the possible
outbreak of fire at this already small
but crowded gasoline station."
The foregoing report, having been submitted by a
police officer in the performance of his duties on the
basis of his own personal observation of the facts
reported, may properly be considered as an exception
to the hearsay rule. Those facts, descriptive of the
location and objective circumstances surrounding the
operation of the gasoline station in question, strengthen
the presumption of negligence under the doctrine of res
ipsa loquitur, since on their face they called for more
stringent measures of caution than those which would
satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent
demonstration of this than the statement of Leandro
Flores before the police investigator. Flores was the
driver of the gasoline tank wagon who, alone and
without assistance, was transferring the contents
thereof into the underground storage when the fire
broke out. He said: "Before loading the underground
tank there were no people, but while the loading was
going on, there were people who went to drink coca-
cola (at the coca-cola stand) which is about a meter
from the hole leading to the underground tank." He
added that when the tank was almost filled he went to
107
the tank truck to close the valve, and while he had his
back turned to the "manhole" he heard someone shout
"fire."
Even then the fire possibly would not have spread to
the neighboring houses were it not for another
negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the
concrete wall was only 2 1/2 meters high, and beyond
that height it consisted merely of galvanized iron
sheets, which would predictably crumple and melt
when subjected to intense heat. Defendants' negligence,
therefore, was not only with respect to the cause of the
fire but also with respect to the spread thereof to the
neighboring houses.
There is an admission on the part of Boquiren in his
amended answer to the second amended complaint that
"the fire was caused through the acts of a stranger who,
without authority, or permission of answering
defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No
evidence on this point was adduced, but assuming the
allegation to be true — certainly any unfavorable
inference from the admission may be taken against
Boquiren — it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule
which we find acceptable here: "It is the rule that those
who distribute a dangerous article or agent owe a
degree of protection to the public proportionate to and
commensurate with a danger involved . . . we think it is
the generally accepted rule as applied to torts that 'if
the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another,
the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in
bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2,
p. 1184, #439. Stated in another way, 'The intervention
of an unforeseen and unexpected cause, is not sufficient
to relieve a wrongdoer from consequences of
negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting
injury.' (MacAfee et al. vs. Traver's Gas Corp., et al., 153
S.W. 2nd 442.)
The next issue is whether Caltex should be held liable
for the damages caused to appellants. This issue
depends on whether Boquiren was an independent
contractor, as held by the Court of Appeals, or an agent
of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed
upon by this Court. These facts are: 1) Boquiren made
an admission that he was an agent of Caltex; (2) at the
time of the fire Caltex owned the gasoline station and
all the equipment therein; (3) Caltex exercised control
over Boquiren in the management of the station; (4) the
delivery truck used in delivering gasoline to the station
had the name CALTEX painted on it; and (5) the license
to store gasoline at the station was in the name of
Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended
complaint, he denied that he directed one of his drivers
to remove gasoline from the truck into the tank and
alleged that the "alleged driver, if one there was, was
not in his employ, the driver being an employee of the
Caltex (Phil.) Inc. and/or the owners of the gasoline
station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the
effect that he was not acting as agent of Caltex. But then
again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it
stated no cause of action since under the allegations
thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A
motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well
as the equipment therein, but claims that the business
conducted at the service station in question was owned
and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the
nature of their relationship at the time of the fire. There
must have been one in existence at that time. Instead,
what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered
into shortly before the expiration of the one- year
period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on
November 29, 1948, but made effective as of January 1,
1948 so as to cover the date of the fire, namely, March
18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed
precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property
while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is
not an employee, representative or agent of LICENSOR
(Caltex)."
But even if the license agreement were to govern,
Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay
Caltex the purely nominal sum of P1.00 for the use of
the premises and all the equipment therein. He could
sell only Caltex products. Maintenance of the station
and its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of
Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter
until terminated by Caltex upon two days prior written
notice. Caltex could at any time cancel and terminate
the agreement in case Boquiren ceased to sell Caltex
products, or did not conduct the business with due
diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex
but not to Boquiren. These provisions of the contract
show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an
employee of the former.
"Taking into consideration the fact
that the operator owed his position to
the company and the latter could
remove him or terminate his services
at will; that the service station
belonged to the company and bore its
tradename and the operator sold only
the products of the company; that the
equipment used by the operator
belonged to the company and were
just loaned to the operator and the
company took charge of their repair
and maintenance; that an employee
of the company supervised the
operator and conducted periodic
inspection of the company's gasoline
and service station; that the price of
the products sold by the operator was
fixed by the company and not by the
operator; and that the receipts signed
by the operator indicated that he was
a mere agent, the finding of the Court
of Appeals that the operator was an
agent of the company and not an
independent contractor should not be
disturbed.
"To determine the nature of a contract
courts do not have or are not bound
to rely upon the name or title given it
by the contracting parties, should
there be a controversy as to what they
really had intended to enter into, but
the way the contracting parties do or
perform their respective obligations
stipulated or agreed upon may be
shown and inquired into, and should
such performance conflict with the
name or title given the contract by the
parties, the former must prevail over
the latter." Shell Company of the
Philippines, Ltd. vs. Firemen's
Insurance Company of Newark, New
Jersey, 100 Phil. 757).
"The written contract was apparently
drawn for the purpose of creating the
apparent relationship of employer
and independent contractor, and of
avoiding liability for the negligence
of the employees about the station;
but the company was not satisfied to
allow such relationship to exist. The
evidence shows that it immediately
assumed control, and proceeded to
direct the method by which the work
108
 contracted for should be performed.
By reserving the right to terminate
the contract at will, it retained the
means of compelling submission to
its orders. Having elected to assume
control and to direct the means and
methods by which the work has to be
performed, it must be held liable for
the negligence of those performing
service under its direction. We think
the evidence was sufficient to sustain
the verdict of the jury." (Gulf Refining
Company vs. Rogers 57 S.W. 2d 183).
Caltex further argues that the gasoline stored in the
station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said
gasoline from Caltex. Neither was there a sales contract
to prove the same.
As found by the trial court the Africas sustained a loss
of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the
ground that Article 2207 of the new Civil Code, which
provides for the subrogation of the insurer to the rights
of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on
this point at that time, the amount that should be
recovered must be measured by the damages actually
suffered, otherwise the principle prohibiting unjust
enrichment would be violated. With respect to the
claim of the heirs of Ong, P7,500.00 was adjudged by
the lower court on the basis of the assessed value of the
property destroyed namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property
was worth P4,000.00. We agree that the court erred,
since it is of common knowledge that the assessment
for taxation purposes is not an accurate gauge of fair
market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are
therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and
respondents- appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sums
of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,
J.B.L., Barrera, Regala, Bengzon, J.P. and Zaldivar, JJ.,
concur.
Dizon, J., took no part.
F.F. CRUZ and CO., INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. 52732, 29 August 1988.
CORTES, J p:
109
This petition to review the decision of the Court of
Appeals puts in issue the application of the common
law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in
Caloocan City was situated adjacent to the residence of
private respondents. Sometime in August 1971, private
respondent Gregorio Mable first approached Eric Cruz,
petitioner's plant manager, to request that a firewall be
constructed between the shop and private respondents'
residence. The request was repeated several times but
they fell on deaf ears. In the early morning of
September 6, 1974, fire broke out in petitioner's shop.
Petitioner's employees, who slept in the shop premises,
tried to put out the fire, but their efforts proved futile.
The fire spread to private respondents' house. Both the
shop and the house were razed to the ground. The
cause of the conflagration was never discovered. The
National Bureau of Investigation found specimens from
the burned structures negative for the presence of
inflammable substances.
Subsequently, private respondents collected P35,000.00
on the insurance on their house and the contents
thereof.
On January 23, 1975, private respondents filed an action
for damages against petitioner, praying for a judgment
in their favor awarding P150,000.00 as actual damages,
P50,000.00 as moral damages, P25,000.00 as exemplary
damages, P20,000.00 as attorney's fees and costs. The
Court of First Instance held for private respondents:
xxx xxx xxx
On appeal, the Court of Appeals, in a decision
promulgated on November 19, 1979, affirmed the
decision of the trial court but reduced the award of
damages:
xxx xxx xxx
The pivotal issue in this case is the applicability of the
common law doctrine of res ipsa loquitur, the issue of
damages being merely consequential. In view thereof,
the errors assigned by petitioner shall be discussed in
the reverse order.
1. The doctrine of res ipsa loquitur, whose
application to the instant case petitioner objects to, may
be stated as follows:
Where the thing which caused the
injury complained of is shown to be
under the management of the
defendant or his servants and the
accident is such as in the ordinary
course of things does not happen if
those who have its management or
control use proper care, it affords
 reasonable evidence, in the absence of
explanation by the defendant, that
the accident arose from want of care.
[Africa v. Caltex (Phil.), Inc., G.R. No.
L-12986, March 31, 1966, 16 SCRA
448.]
Thus, in Africa, supra, where fire broke out in a Caltex
service station while gasoline from a tank truck was
being unloaded into an underground storage tank
through a hose and the fire spread to and burned
neighboring houses, this Court, applying the doctrine
of res ipsa loquitur, adjudged Caltex liable for the loss.
The facts of the case likewise call for the application of
the doctrine, considering that in the normal course of
operations of a furniture manufacturing shop,
combustible material such as wood chips, sawdust,
paint, varnish and fuel and lubricants for machinery
may be found thereon.
It must also be noted that negligence or want of care on
the part of petitioner or its employees was not merely
presumed. The Court of Appeals found that petitioner
failed to construct a firewall between its shop and the
residence of private respondents as required by a city
ordinance; that the fire could have been caused by a
heated motor or a lit cigarette; that gasoline and alcohol
were used and stored in the shop; and that workers
sometimes smoked inside the shop [CA Decision, p. 5;
Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur,
petitioner's failure to construct a firewall in accordance
with city ordinances would suffice to support a finding
of negligence.
Even then the fire possibly would not have spread to
the neighboring houses were it not for another
negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the
concrete wall was only 2-1/2 meters high, and beyond
that height it consisted merely of galvanized iron
sheets, which would predictably crumble and melt
when subjected to intense heat. Defendant's negligence,
therefore, was not only with respect to the cause of the
fire but also with respect to the spread thereof to the
neighboring houses. [Africa Y. Caltex (Phil.) Inc., supra;
Emphasis supplied.]
In the instant case, with more reason should petitioner
be found guilty of negligence since it had failed to
construct a firewall between its property and private
respondents' residence which sufficiently complies with
the pertinent city ordinances. The failure to comply
with an ordinance providing for safety regulations had
been ruled by the Court as an act of negligence [Teague
v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA
181.]
The Court of Appeals, therefore, had more than
adequate basis to find petitioner liable for the loss
sustained by private respondents.
xxx xxx xxx
WHEREFORE, in view of the foregoing, the decision of
the Court of Appeals is hereby AFFIRMED with the
following modifications as to the damages awarded for
the loss of private respondents' house, considering their
receipt of P35,000.00 from their insurer: (1) the damages
awarded for the loss of the house is reduced to
P35,000.00; and (2) the right of the insurer to
subrogation and thus seek reimbursement from
petitioner for the P35,000.00 it had paid private
respondents is recognized.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ.,
concur.
BATIQUIN, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 118231, 5 July 1996, 258 SCRA 334
DAVIDE, JR., J p:
Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of
this trust, men have been quick to demand retribution.
Some 4,000 years ago, the Code of Hammurabi 1 then
already provided: "If a physician make a deep incision
upon a man with his bronze lancet and cause the man's
death, or operate on the eye socket of a man with his
bronze lancet and destroy the man's eyes, they shall cut
off his hand." Subsequently, Hippocrates wrote what
was to become part of the healer's oath: "I will follow
that method of treatment which according to my ability
and judgment, I consider for the benefit of my patents,
and abstain from whatever is deleterious and
mischievous . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but
should I trespass and violate this oath, may the reverse
be my lot." At present, the primary objective of the
medical profession is the preservation of life and
maintenance of the health of the people.
Needless to say then, when a physician strays from his
sacred duty and endangers instead the life of his
patient, he must be made to answer therefor. Although
society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it
and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851,
which reversed the decision 6 of 21 December 1990 of
Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
110
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said
Hospital.
Mrs. Villegas is a married woman who submitted to Dr.
Batiquin for prenatal care as the latter's private patient
sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin with
the assistance of Dr. Doris Teresita Sy who was also a
Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses
performed a simple cesarean section on Mrs. Villegas at
the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first Child, Rachel
Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until
September 27, 1988 during which period of
confinement she was regularly visited by Dr. Batiquin.
On September 28, 1988 Mrs. Villegas checked out of the
Hospital . . . and on the same day she paid Dr. Batiquin,
thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . .
Soon after leaving the Hospital Mrs. Villegas began to
suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had
been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical
Certificate by Dr. Batiquin on October 31, 1988 . . .
certifying to her physical fitness to return to her work
on November 7, 1988. So on the second week of
November, 1988 Mrs. Villegas returned to her work at
the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas no end and despite the
medications administered by Dr. Batiquin. When the
pains become unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho at the Holy
Child's Hospital in Dumaguete City on January 20,
1989.
The evidence of Plaintiffs show that when Dr. Ma.
Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to
be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger
below the umbilicus which she suspected to be either a
tumor of the uterus or an ovarian cyst, either of which
could be cancerous. She had an x-ray taken of Mrs.
Villegas ' chest, abdomen and kidney. She also took
blood tests of Plaintiff. A blood count showed that Mrs.
Villegas had [an] infection inside her abdominal cavity.
The results of all those examinations impelled Dr. Kho
111
to suggest that Mrs. Villegas submit to another surgery
to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas
she found whitish-yellow discharge inside, an ovarian
cyst on each of the left and right ovaries which gave out
pus, dirt and pus behind the uterus, and a piece of
rubber materials on the right side of the uterus
embedded on [sic] the ovarian cyst. 2 inches by 3/4
inch in size. This piece of rubber material which Dr.
Kho described as a "foreign body" looked like a piece of
a "rubber glove" . . . and which is [sic] also "rubber-
drain like . . . It could have been a torn section of a
surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the
infection of the ovaries and consequently of all the
discomfort suffered by Mrs. Villegas after her delivery
on September 21, 1988.
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not presented
in court, and although Dr. Ma. Salud Kho testified that
she sent it to a pathologist in Cebu City for
examination, it was not mentioned in the pathologist's
Surgical Pathology Report.
Aside from Dr. Kho's testimony, the evidence which
mentioned the piece of rubber are a Medical Certificate,
a Progress Record, an Anesthesia Record, a Nurse's
Record, and a Physician's Discharge Summary. The trial
court, however, regarded these documentary evidence
as mere hearsay, "there being no showing that the
person or persons who prepared them are deceased or
unable to testify on the facts therein stated . . . Except
for the Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other
than Dr. Kho, and she merely affixed her signature on
some of them to express her agreement thereto . . . " The
trial court also refused to give weight to Dr. Kho's
testimony regarding the subject piece of rubber as Dr.
Kho "may not have had first-hand knowledge" thereof,
as could be gleaned from her statement, thus:
xxx xxx xxx
All told, the trial court held in favor of the petitioners
herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's
uterus. Thus, the Court of Appeals reversed the
decision of the trial court, holding:
“4. The fault or negligence of
appellee Dr. Batiquin is established
by preponderance of evidence. The
trial court itself had narrated what
happened to appellant Flotilde after
the caesarean operation made by
 appellee doctor . . . After the second
operation, appellant Flotilde became
well and healthy. Appellant Flotilde's
troubles were caused by the infection
due to the "rubber" that was left
inside her abdomen. Both appellants
testified that after the operation made
by appellee doctor, they did not go to
any other doctor until they finally
decided to see another doctor in
January, 1989 when she was not
getting any better under the care of
appellee Dr. Batiquin . . . Appellee
Dr. Batiquin admitted on the witness
stand that she alone decided when to
close the operating area; that she
examined the portion she operated
on before closing the same . . . Had
she exercised due diligence, appellee
Dr. Batiquin would have found the
rubber and removed it before closing
the operating area.”
The appellate court then ruled:
“Appellants' evidence show[s] that
they paid a total of P17,000.00
[deposit of P7,100.00 (Exh. G-1-A)
plus hospital and medical expenses
together with doctor's fees in the total
amount P9,900.00 (Exhs. G and G-2)]
for the second operation that saved
her life.
For the miseries appellants endured
for more than three (3) months, due
to the negligence of appellee Dr.
Batiquin, they are entitled to moral
damages in the amount of
P100,000.00; exemplary damages in
the amount of P20,000.00 and
attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no
longer bear children because her
uterus and ovaries were removed by
Dr. Kho is not taken into
consideration as it is not shown that
the removal of said organs were the
direct result of the rubber left by
appellee Dr. Batiquin near the uterus.
What is established is that the rubber
left by appellee cause infection,
placed the life of appellant Flotilde in
jeopardy and caused appellants fear,
worry and anxiety . . .
WHEREFORE, the appealed
judgment, dismissing the complaint
for damages is REVERSED and SET
ASIDE. Another judgment is hereby
entered ordering defendants-
appellees to pay plaintiffs-appellants
the amount of P17,000.00 as and for
actual damages; P100,000.00 as and
for moral damages; P20,000.00 as and
for exemplary damages; and
P25,000.00 as and for attorney's fees
plus the cost of litigation.
SO ORDERED.”
From the above judgment, the petitioners appealed to
this Court claiming that the appellate court; (1)
committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on
record, and (2) exceeded its discretion, amounting to
lack or excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
xxx xxx xxx
The petitioners emphasize that the private respondents
never reconciled Dr. Kho's testimony with Dr.
Batiquin's claim on the witness stand that when Dr.
Batiquin confronted Dr. Kho about the foreign body,
the latter said that there was a piece of rubber but that
she threw it away. Although hearsay, Dr. Batiquin's
claim was not objected to, and hence, the same is
admissible but it carries no probative value.
Nevertheless, assuming otherwise, Dr. Batiquin's
statement cannot belie the fact that Dr. Kho found a
piece of rubber near private respondent Villegas uterus.
And even if we were to doubt Dr. Kho as to what she
did to the piece of rubber, i.e., whether she threw it
away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber
from private respondent Villegas's abdomen. On this
score, it is perfectly reasonable to believe the testimony
of a witness with respect to some facts and disbelieve
his testimony with respect to other facts. And it has
been aptly said that even when a witness it found to
have deliberately falsified in some material particulars,
it is not required that the whole of his uncorroborated
testimony be rejected, but such portions thereof
deemed worthy of belief may be credited.
It is here worth nothing that the trial court paid heed to
the following portions of Dr. Batiquin's testimony: that
no rubber drain was used in the operation, and that
there was neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands upon
removing her gloves. Moreover, the trial court pointed
out that the absence of a rubber drain was corroborated
by Dr. Doris Sy, Dr. Batiquin's assistant during the
operation on private respondent Villegas. But the trial
court failed to recognize that the assertions of Drs.
Batiquin and Sy were denials or negative testimonies.
Well-settled is the rule that positive testimony is
stronger than negative testimony. Of course, as the
petitioners advocate, such positive testimony must
come from a credible source, which leads us to the
second assigned error.
112

While the petitioners claim that contradictions and
falsities punctured Dr. Kho's testimony, a reading of the
said testimony reveals no such infirmity and establishes
Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore,
no motive to state any untruth was ever imputed
against Dr. Kho, leaving her trustworthiness
unimpaired. The trial court's following declaration
shows that while it was critical of the lack of care with
which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only
supporting out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less
than honest when she testified about
her findings, but it can also be said
that she did not take the most
appropriate precaution to preserve
that "piece of rubber" as an eloquent
evidence of what she would reveal
should there be a "legal problem"
which she claim[s] to have
anticipated.
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent
Villegas's abdomen] prevails over the negative
testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is
stated thus: "Where the thing which
causes injury is shown to be under
the management of the defendant,
and the accident is such as in the
ordinary course of things does not
happen if those who have the
management use proper care, it
affords reasonable evidence, in the
absence of an explanation by the
defendant, that the accident arose
from want of care." Or as Black's Law
Dictionary puts it:
Res ipsa loquitur. The
thing speaks for itself.
Rebuttable presumption or
inference that defendant was
negligent, which arises upon
proof that [the] instrumentality
causing injury was in
defendant's exclusive control,
and that the accident was one
which ordinary does not
happen in absence of
negligence. Res ipsa loquitur is
[a] rule of evidence whereby
113
negligence of [the] alleged
wrongdoer may be inferred
from [the] mere fact that [the]
accident happened provided
[the] character of [the] accident
and circumstances attending it
lead reasonably to belief that in
[the] absence of negligence it
would not have occurred and
that thing which caused injury
is shown to have been under
[the] management and control
of [the] alleged wrongdoer . . .
Under [this] doctrine . . . the
happening of an injury permits
an inference of negligence
where the plaintiff produces
substantial evidence that [the]
injury was caused by an
agency or instrumentality
under [the] exclusive control
and management of defendant,
and that the occurrence [sic]
was such that in the ordinary
course of things would not
happen if reasonable care had
been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a
rule of evidence is peculiar to the law
of negligence which recognizes that
prima facie negligence may be
established without direct proof and
furnishes a substitute for specific
proof of negligence. The doctrine is
not a rule of substantive law, but
merely a mode of proof or a mere
procedural convenience. The rule,
when applicable to the facts and
circumstances of a particular case, is
not intended to and does not
dispense with the requirement of
proof of culpable negligence on the
party charged. It merely determines
and regulates what shall the prima
facie evidence thereof and facilitates
the burden of plaintiff of proving a
breach of the duty of due care. The
doctrine can be invoked when and
only when, under the circumstances
involved direct evidence is absent
and not readily available.
In the instant case, all the requisites for recourse to the
doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of
Dr. Batiquin. In this light, the private respondents were
bereft of direct evidence as to the actual culprit or the
exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to
say, does not occur unless through the intervention of
negligence. Second, since aside from the caesarean
section, private respondent Villegas underwent no
other operation which could have caused the offending
piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of
the cesarean section performed by Dr. Batiquin. The
petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore
liable for negligently leaving behind a piece of rubber
in private respondent Villegas's abdomen and for all
the adverse effects thereof.
As a final word, this Court reiterates its recognition of
the vital role the medical profession plays in the lives of
the people, and State's compelling interest to enact
measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those
who would undertake to treat our bodies and minds for
disease or trauma." Indeed, a physician is bound to
serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and skill."
Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of
her profession's rigid ethical code and in contravention
of the legal standards set forth for professionals, in the
general, and members of the medical profession, in
particular.
WHEREFORE, the challenged decision of 11 May 1994
of the Court of Appeals in CA-G.R. CV No. 30851 is
hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
Narvasa, C .J ., Melo, Francisco and Panganiban, JJ .,
concur.
RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 124354, 29 December 1999, 321 SCRA 584
KAPUNAN, J p:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error,
may spell the difference between life and death. In this
sense, the doctor plays God on his patient's fate.
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy.
Petitioners seek the reversal of the decision of the Court
of Appeals, dated 29 May 1995, which overturned the
decision of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages
arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court
are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year
old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for
occasional complaints of discomfort
due to pains allegedly caused by the
presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman.
Married to Rogelio E. Ramos, an
executive of Philippine Long Distance
Telephone Company, she has three
children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19,
1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she
sought professional advice. She was
advised to undergo an operation for
the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5).
She underwent a series of
examinations which included blood
and urine tests (Exhs. "A" and "C")
which indicated she was fit for
surgery.
Through the intercession of a mutual
friend, Dr. Buenviaje (TSN, January
13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr.
Orlino Hozaka (should be Hosaka;
see TSN, February 20, 1990, p. 3), one
of the defendants in this case, on June
10, 1985. They agreed that their date
at the operating table at the DLSMC
(another defendant), would be on
June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should
undergo a "cholecystectomy"
operation after examining the
documents (findings from the Capitol
Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka
to look for a good anesthesiologist.
Dr. Hosaka, in turn, assured Rogelio
that he will get a good
anesthesiologist. Dr. Hosaka charged
a fee of P16,000.00, which was to
include the anesthesiologist's fee and
which was to be paid after the
114
 operation (TSN, October 19, 1989, pp.
14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).
A day before the scheduled date of
operation, she was admitted at one of
the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon
City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985
and while still in her room, she was
prepared for the operation by the
hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean
of the College of Nursing at the
Capitol Medical Center, was also
there for moral support. She
reiterated her previous request for
Herminda to be with her even during
the operation. After praying, she was
given injections. Her hands were held
by Herminda as they went down
from her room to the operating room
(TSN, January 13, 1988, pp. 9-11). Her
husband, Rogelio, was also with her
(TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about
two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who
was to administer anesthesia.
Although not a member of the
hospital staff, Herminda introduced
herself as Dean of the College of
Nursing at the Capitol Medical
Center who was to provide moral
support to the patient, to them.
Herminda was allowed to stay inside
the operating room.
At around 9:30 A.M., Dr. Gutierrez
reached a nearby phone to look for
Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed
Herminda Cruz about the prospect of
a delay in the arrival of Dr. Hosaka.
Herminda then went back to the
patient who asked, "Mindy, wala pa
ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating
na iyon" (ibid.).
Thereafter, Herminda went out of the
operating room and informed the
patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13).
When she returned to the operating
room, the patient told her, "Mindy,
inip na inip na ako, ikuha mo ako ng
ibang Doctor." So, she went out again
115
and told Rogelio about what the
patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E.
Ramos was "already dying [and]
waiting for the arrival of the doctor"
even as he did his best to find
somebody who will allow him to pull
out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He
also thought of the feeling of his wife,
who was inside the operating room
waiting for the doctor to arrive (ibid.).
At almost 12:00 noon, he met Dr.
Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10
P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing
those words, he went down to the
lobby and waited for the operation to
be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz,
who was inside the operating room
with the patient, heard somebody say
that "Dr. Hosaka is already here." She
then saw people inside the operating
room "moving, doing this and that,
[and] preparing the patient for the
operation" (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She
thereafter heard Dr. Gutierrez say,
"ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki
ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she
focused her attention on what Dr.
Gutierrez was doing. She thereafter
noticed bluish discoloration of the
nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr.
Hosaka issue an order for someone to
call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the operating
room, she saw this anesthesiologist
trying to intubate the patient. The
patient's nailbed became bluish and
the patient was placed in a
trendelenburg position — a position
where the head of the patient is
placed in a position lower than her
feet which is an indication that there
is a decrease of blood supply to the
patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out
of the operating room, and she told
Rogelio E. Ramos "that something
wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate
the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was
outside the operating room, saw a
respiratory machine being rushed
towards the door of the operating
room. He also saw several doctors
rushing towards the operating room.
When informed by Herminda Cruz
that something wrong was
happening, he told her (Herminda) to
be back with the patient inside the
operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed
back, and saw that the patient was
still in trendelenburg position (TSN,
January 13, 1988, p. 20). At almost
3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive
Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr. Hosaka.
The latter informed the former that
something went wrong during the
intubation. Reacting to what was told
to him, Rogelio reminded the doctor
that the condition of his wife would
not have happened, had he (Dr.
Hosaka) looked for a good
anesthesiologist (TSN, October 19,
1989, p. 31).
Doctors Gutierrez and Hosaka were
also asked by the hospital to explain
what happened to the patient. The
doctors explained that the patient
had bronchospasm (TSN, November
15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter
or on November 15, 1985, the patient
was released from the hospital.
During the whole period of her
confinement, she incurred hospital
bills amounting to P93,542.25 which
is the subject of a promissory note
and affidavit of undertaking executed
by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon
of June 17, 1985, she has been in a
comatose condition. She cannot do
anything. She cannot move any part
of her body. She cannot see or hear.
She is living on mechanical means.
She suffered brain damage as a result
of the absence of oxygen in her brain
for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After
being discharged from the hospital,
she has been staying in their
residence, still needing constant
medical attention, with her husband
Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00
(TSN, October 19, 1989, pp. 32-34).
She was also diagnosed to be
suffering from "diffuse cerebral
parenchymal damage" (Exh. "G"; see
also TSN, December 21, 1989, p. 6).
Thus, on 8 January 1986, petitioners filed a civil case for
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence
in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to
the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and
Dr. Mariano Gavino to prove that the damage sustained
by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by
private respondents during the anesthesia phase. On
the other hand, private respondents primarily relied on
the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain
damage was Erlinda's allergic reaction to the anesthetic
agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
“After evaluating the evidence as
shown in the finding of facts set forth
earlier, and applying the aforecited
provisions of law and jurisprudence
to the case at bar, this Court finds and
so holds that defendants are liable to
plaintiffs for damages. The
defendants were guilty of, at the very
least, negligence in the performance
of their duty to plaintiff-patient
Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez,
this Court finds that she omitted to
exercise reasonable care in not only
intubating the patient, but also in not
repeating the administration of
atropine (TSN, August 20, 1991, pp.
5-10), without due regard to the fact
that the patient was inside the
operating room for almost three (3)
116
 hours. For after she committed a
mistake in intubating [the] patient,
the patient's nailbed became bluish
and the patient, thereafter, was
placed in trendelenburg position,
because of the decrease of blood
supply to the patient's brain. The
evidence further shows that the
hapless patient suffered brain
damage because of the absence of
oxygen in her (patient's) brain for
approximately four to five minutes
which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the
acts of Dr. Perfecta Gutierrez whom
he had chosen to administer
anesthesia on the patient as part of
his obligation to provide the patient a
'good anesthesiologist', and for
arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital),
this Court finds that it is liable for the
acts of negligence of the doctors in
their 'practice of medicine' in the
operating room. Moreover, the
hospital is liable for failing through
its responsible officials, to cancel the
scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects
the defense raised by defendants that
they have acted with due care and
prudence in rendering medical
services to plaintiff-patient. For if the
patient was properly intubated as
claimed by them, the patient would
not have become comatose. And, the
fact that another anesthesiologist was
called to try to intubate the patient
after her (the patient's) nailbed
turned bluish, belie their claim.
Furthermore, the defendants should
have rescheduled the operation to a
later date. This, they should have
done, if defendants acted with due
care and prudence as the patient's
case was an elective, not an
emergency case.
xxx xxx xxx
WHEREFORE, and in view of the
foregoing, judgment is rendered in
favor of the plaintiffs and against the
defendants. Accordingly, the latter
are ordered to pay, jointly and
117
severally, the former the following
sums of money, to wit:
xxx xxx xxx”
Private respondents seasonably interposed an appeal to
the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of
the trial court. The decretal portion of the decision of
the appellate court reads:
xxx xxx xxx
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur" is a maxim for the rule that the
fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of
fact for defendant to meet with an explanation. Where
the thing which caused the injury complained of is
shown to be under the management of the defendant or
his servants and the accident is such as in ordinary
course of things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was
caused by the defendant's want of care.
The doctrine of res ipsa loquitur is simply a recognition
of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of
occurrences may justify an inference of negligence on
the part of the person who controls the instrumentality
causing the injury in the absence of some explanation
by the defendant who is charged with negligence. It is
grounded in the superior logic of ordinary human
experience and on the basis of such experience or
common knowledge, negligence may be deduced from
the mere occurrence of the accident itself. Hence, res
ipsa loquitur is applied in conjunction with the doctrine
of common knowledge.
However, much has been said the res ipsa loquitur is not
a rule of substantive law and, as such, does not create
or constitute an independent or separate ground of
liability. Instead, it is considered as merely evidentiary
or in the nature of a procedural rule. It is regarded as a
mode of proof, of a mere procedural convenience since
it furnishes a substitute for, and relieves a plaintiff of,
the burden of producing specific proof of negligence. In
other words, mere invocation and application of the
doctrine does not dispense with the requirement of
proof of negligence. It is simply a step in the process of
such proof, permitting the plaintiff to present along
with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an
inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward
with the proof. Still, before resort to the doctrine may
be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does not
occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.
In the above requisites, the fundamental element is the
"control of the instrumentality" which caused the
damage. Such element of control must be shown to be
within the dominion of the defendant. In order to have
the benefit of the rule, a plaintiff, in addition to proving
injury or damage, must show a situation where it is
applicable, and must establish that the essential
elements of the doctrine were present in a particular
incident.
Medical malpractice cases do not escape the application
of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference
of negligence as the cause of that harm. The application
of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to
determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The
reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within
the domain of medical science, and not to matters that
are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and
surgeons, external appearances, and manifest
conditions which are observable by any one may be
given by non-expert witnesses. Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted
to find a physician negligent upon proper proof of
injury to the patient, without the aid of expert
testimony, where the court from its fund of common
knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient
if due care had been exercised, an inference of
negligence may be drawn giving rise to an application
of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. When the
doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission
complained of and the injury sustained while under the
custody and management of the defendant without
need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, removal of
the wrong part of the body when another part was
intended, knocking out a tooth while a patient's jaw
was under anesthetic for the removal of his tonsils, and
loss of an eye while the patient plaintiff was under the
influence of anesthetic, during or following an
operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence
as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised. A distinction must be made between the
failure to secure results, and the occurrence of
something more unusual and not ordinarily found if
the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa loquitur
can have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of a
scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular
diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result.
Thus, res ipsa loquitur is not available in a malpractice
suit if the only showing is that the desired result of an
operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual
118
event outside of the routine performance occurred
which is beyond the regular scope of customary
professional activity in such operations, which, if
unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the
untoward consequence. If there was such extraneous
interventions, the doctrine or res ipsa loquitur may be
utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could.
We find the doctrine of res ipsa loquitur appropriate in
the case bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell, where the Kansas Supreme Court in applying
the res ipsa loquitur stated:
The plaintiff herein submitted
himself for a mastoid operation and
delivered his person over to the care,
custody and control of his physician
who had complete and exclusive
control over him, but the operation
was never performed. At the time of
submission he was neurologically
sound and physically fit in mind and
body, but he suffered irreparable
damage and injury rendering him
decerebrate and totally incapacitated.
The injury was one which does not
ordinarily occur in the process of a
mastoid operation or in the absence
of negligence in the administration of
an anesthetic, and in the use and
employment of an endoctracheal
tube. Ordinarily a person being put
under anesthesia is not rendered
decerebrate as a consequence of
administering such anesthesia in the
absence of negligence. Upon these
facts and under these circumstances a
layman would be able to say, as a
matter of common knowledge and
observation, that the consequences of
professional treatment were not as
such as would ordinarily have
followed if due care had been
exercised.
Here the plaintiff could not have been
guilty of contributory negligence
because he was under the influence
of anesthetics and unconscious, and
the circumstances are such that the
true explanation of event is more
accessible to the defendants than to
the plaintiff for they had the
exclusive control of the
instrumentalities of anesthesia.
119
Upon all the facts, conditions and
circumstances alleged in Count II it is
held that a cause of action is stated
under the doctrine of res ipsa loquitur.
Indeed, the principles enunciated in the aforequoted
case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on
her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private
respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and
body. However, during the administration of
anesthesia and prior to the performance of
cholecystectomy she suffered irreparable damage to her
brain. Thus, without undergoing surgery, she went out
of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in
the process of a gall bladder operation. In fact, this kind
of situation does not happen in the absence of
negligence of someone in the administration of
anesthesia and in the use of endotracheal tube.
Normally, a person being put under anesthesia is not
rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure
was followed. Furthermore, the instruments used in the
administration of anesthesia, including the
endotracheal tube, were all under the exclusive control
of private respondents, who are the physicians-in-
charge. Likewise, petitioner Erlinda could not have
been guilty of contributory negligence because she was
under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and
exclusive control of the physicians, we hold that a
practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and
under these circumstances the Court would be able to
say, as a matter of common knowledge and
observation, if negligence attended the management
and care of the patient. Moreover, the liability of the
physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired
results of an operation nor on an alleged lack of skill in
the diagnosis or treatment as in fact no operation or
treatment was ever performed on Erlinda. Thus, upon
all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available
to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own
light and scrutinized in order to be within the res ipsa beside the patient when the tragic event occurred.
loquitur coverage. Witness Cruz testified to this effect:

Having in mind the applicability of the res ipsa loquitur ATTY. PAJARES:
doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether Q: In particular, what did Dra.
the Court of Appeals erred in finding that private Perfecta Gutierrez do, if any on
respondents were not negligent in the care of Erlinda the patient?
during the anesthesia phase of the operation and, if in A: In particular, I could see that she
the affirmative, whether the alleged negligence was the was intubating the patient.
proximate cause of Erlinda's comatose condition. Q: Do you know what happened to
Corollary thereto, we shall also determine if the Court that intubation process
of Appeals erred in relying on the testimonies of the administered by Dra. Gutierrez?
witnesses for the private respondents.
ATTY. ALCERA:
In sustaining the position of private respondents, the
Court of Appeals relied on the testimonies of Dra. She will be incompetent Your
Gutierrez, Dra. Calderon and Dr. Jamora. In giving Honor.
weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to COURT:
admit that she experienced some difficulty in the
endotracheal intubation of the patient and thus, cannot Witness may answer if she
be said to be covering her negligence with falsehood. knows.
The appellate court likewise opined that private
respondents were able to show that the brain damage A: As I have said, I was with the
sustained by Erlinda was not caused by the alleged patient, I was beside the stretcher
faulty intubation but was due to the allergic reaction of holding the left hand of the
the patient to the drug Thiopental Sodium (Pentothal), patient and all of a sudden I
a short-acting barbiturate, as testified on by their expert heard some remarks coming
witness, Dr. Jamora. On the other hand, the appellate from Dra. Perfecta Gutierrez
court rejected the testimony of Dean Herminda Cruz herself. She was saying "Ang
offered in favor of petitioners that the cause of the brain hirap ma-intubate nito, mali yata
injury was traceable to the wrongful insertion of the ang pagkakapasok. O lumalaki
tube since the latter, being a nurse, was allegedly not ang tiyan."
knowledgeable in the process of intubation. In so
holding, the appellate court returned a verdict in favor xxx xxx xxx
of respondents physicians and hospital and absolved
them of any liability towards Erlinda and her family. ATTY. PAJARES:

We disagree with the findings of the Court of Appeals. Q: From whom did you hear those
We hold that private respondents were unable to words "lumalaki ang tiyan"?
disprove the presumption of negligence on their part in A: From Dra. Perfecta Gutierrez.
the care of Erlinda and their negligence was the
proximate cause of her piteous condition. xxx xxx xxx

In the instant case, the records are helpful in furnishing Q. After hearing the phrase
not only the logical scientific evidence of the "lumalaki ang tiyan," what did
pathogenesis of the injury but also in providing the you notice on the person of the
Court the legal nexus upon which liability is based. As patient?
will be shown hereinafter, private respondents' own A: I notice (sic) some bluish
testimonies which are reflected in the transcript of discoloration on the nailbeds of
stenographic notes are replete of signposts indicative of the left hand where I was at.
their negligence in the care and management of Erlinda. Q: Where was Dr. Orlino Ho[s]aka
then at that particular time?
With regard to Dra. Gutierrez, we find her negligent in A: I saw him approaching the
the care of Erlinda during the anesthesia phase. As patient during that time.
borne by the records, respondent Dra. Gutierrez failed Q: When he approached the patient,
to properly intubate the patient. This fact was attested what did he do, if any?
to by Prof. Herminda Cruz, Dean of the Capitol A: He made an order to call on the
Medical Center School of Nursing and petitioner's anesthesiologist in the person of
sister-in-law, who was in the operating room right Dr. Calderon.

120
 Q: Did Dr. Calderon, upon being
called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the
patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to
intubate the patient, after a while
the patient's nailbed became
bluish and I saw the patient was
placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the
patient was placed in that
trendelenburg position?
A: As far as I know, when a patient
is in that position, there is a
decrease of blood supply to the
brain.
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
“A perusal of the standard nursing
curriculum in our country will show
that intubation is not taught as part of
nursing procedures and techniques.
Indeed, we take judicial notice of the
fact that nurses do not, and cannot,
intubate. Even on the assumption
that she is fully capable of
determining whether or not a patient
is properly intubated, witness
Herminda Cruz, admittedly, did not
peep into the throat of the patient.
(TSN, July 25, 1991, p. 13). More
importantly, there is no evidence that
she ever auscultated the patient or
that she conducted any type of
examination to check if the
endotracheal tube was in its proper
place, and to determine the condition
of the heart, lungs, and other organs.
Thus, witness Cruz's categorical
statements that appellant Dra.
Gutierrez failed to intubate the
appellee Erlinda Ramos and that it
was Dra. Calderon who succeeded in
doing so clearly suffer from lack of
sufficient factual bases.”
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation as
a success.
121
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the
statements and acts of the physician and surgeon,
external appearances, and manifest conditions which
are observable by any one. This is precisely allowed
under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for
the proof of negligence in non-technical matters or
those of which an ordinary person may be expected to
have knowledge, or where the lack of skill or want of
care is so obvious as to render expert testimony
unnecessary. We take judicial notice of the fact that
anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of
observation, we believe, does not require a medical
degree to be acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the
Capitol Medical Center School of Nursing, was fully
capable of determining whether or not the intubation
was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San
Pablo City; and then Dean of the Capitol Medical
Center School of Nursing. Reviewing witness Cruz'
statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity,
consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into
Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora,
while you were intubating at
your first attempt (sic), you did
not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube
immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
 Q: When you said "mahirap yata
ito," what were you referring to?
A: "Mahirap yata itong i-intubate,"
that was the patient.
Q: So, you found some difficulty in
inserting the tube?
A: Yes, because of (sic) my first
attempt, I did not see right away.
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of
Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a
person) making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Pre-
operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's
medical records and visits with the patient,
traditionally, the day before elective surgery. It includes
taking the patient's medical history, review of current
drug therapy, physical examination and interpretation
of laboratory data. The physical examination performed
by the anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs
and upper airway. A thorough analysis of the patient's
airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility,
prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance.
Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult
should be studied. Where the need arises, as when
initial assessment indicates possible problems (such as
the alleged short neck and protruding teeth of Erlinda)
a thorough examination of the patient's airway would
go a long way towards decreasing patient morbidity
and mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no
prior consultations with, or pre-operative evaluation of
Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of
seeing her patient for the first time only an hour before
the scheduled operative procedure was therefore, an act
of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of
the physician's centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she
could get away with it. Respondent Dra. Gutierrez tried
to muddle the difference between an elective surgery
and an emergency surgery just so her failure to perform
the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it
is good medical practice to see
the patient a day before so you
can introduce yourself to
establish good doctor-patient
relationship and gain the trust
and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous
statement, it depends on the
operative procedure of the
anesthesiologist and in my case,
with elective cases and normal
cardio-pulmonary clearance like
that, I usually don't do it except
on emergency and on cases that
have an abnormalities (sic).
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that
an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to
make a proper assessment, including the time to be at
the patient's bedside to do a proper interview and
clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their
possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at
least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to
the operation and prepare her for anesthesia. However,
122
she never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the
operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez
failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlinda's comatose
condition.
Private respondents repeatedly hammered the view
that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm mediated by her allergic
response to the drug, Thiopental Sodium, introduced
into her system. Towards this end, they presented Dr.
Jamora, a Fellow of the Philippine College of Physicians
and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic
encephalopathy, was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an
authority in the field of anesthesiology simply because
he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia
practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-
mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is
further supported by his own admission that he
formulated his opinions on the drug not from the
practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on
patients, but only from reading certain references, to
wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any
occasion to use pentothal as a
method of management?
DR. JAMORA:
A: We do it in conjunction with the
anesthesiologist when they have
to intubate our patient.
123
Q: But not in particular when you
practice pulmonology?
A: No.
Q: In other words, your knowledge
about pentothal is based only on
what you have read from books
and not by your own personal
application of the medicine
pentothal?
A: Based on my personal experience
also on pentothal.
Q: How many times have you used
pentothal?
A: They used it on me. I went into
bronchospasm during my
appendectomy.
Q: And because they have used it
on you and on account of your
own personal experience you
feel that you can testify on
pentothal here with medical
authority?
A: No. That is why I used references
to support my claims.
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are
within the expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript,
in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority,
it is clear that the appellate court erred in giving weight
to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
xxx xxx xxx
Moreover, private respondents' theory, that Thiopental
Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin
reactions, or wheezing — some of the more common
accompanying signs of an allergic reaction — appears
on record. No laboratory data were ever presented to
the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept
private respondents' hypothesis without supporting
medical proof, and against the weight of available
evidence, then every anesthetic accident would be an
act of God. Evidently, the Thiopental-allergy theory
vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in
order to absolve them of any and all responsibility for
the patient's condition.
In view of the evidence at hand, we are inclined to
believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's
comatose condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and
without which the result would not have occurred. An
injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence in
the case, that the act or omission played a substantial
part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a
direct result or a reasonably probable consequence of
the act or omission. It is the dominant, moving or
producing cause.
Applying the above definition in relation to the
evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events
leading to Erlinda's brain damage and, ultimately, her
comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This
fact was likewise observed by witness Cruz when she
heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The
development of abdominal distention, together with
respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was
an esophageal intubation. During intubation, such
distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of
the lungs through the trachea. Entry into the esophagus
would certainly cause some delay in oxygen delivery
into the lungs as the tube which carries oxygen is in the
wrong place. That abdominal distention had been
observed during the first intubation suggests that the
length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the
second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed
signs of cyanosis. As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after
he noticed that the nailbeds of Erlinda were already
blue. However, private respondents contend that a
second intubation was executed on Erlinda and this one
was successfully done. We do not think so. No evidence
exists on record, beyond private respondents' bare
claims, which supports the contention that the second
intubation was successful. Assuming that the
endotracheal tube finally found its way into the proper
orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding
from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation
was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it, was
obviously too late. As aptly explained by the trial court,
Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to
five minutes.
The above conclusion is not without basis. Scientific
studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious
injuries associated with anesthesia. Nevertheless,
ninety-eight percent (98%) or the vast majority of
difficult intubations may be anticipated by performing
a thorough evaluation of the patient's airway prior to
the operation. As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable
care been used in the pre-operative evaluation,
respondent physician could have been much more
prepared to meet the contingency brought about by the
perceived anatomic variations in the patient's neck and
oral area, defects which would have been easily
overcome by a prior knowledge of those variations
together with a change in technique. In other words, an
experienced anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would have had
little difficulty going around the short neck and
protruding teeth. Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence
resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the
so-called "captain of the ship," it is the surgeon's
responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the
operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols.
In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore,
it does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at
the same time as Erlinda's cholecystectomy, and was in
fact over three hours late for the latter's operation.
Because of this, he had little or no time to confer with
his anesthesiologist regarding the anesthesia delivery.
This indicates that he was remiss in his professional
duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlinda's
condition.
124
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending
and visiting "consultants," who are allegedly not
hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent
than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who
apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency,
their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by
members of the hospital administration or by a review
committee set up by the hospital who either accept or
reject the application. This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate
grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being able
to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a
specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns
and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting
"consultant" staff. While "consultants" are not,
technically employees, a point which respondent
hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee
relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact
exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose
of allocating responsibility in medical negligence cases,
an employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians. This being the case, the question now arises
as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioner's
condition.
The basis for holding an employer solidarily
responsible for the negligence of its employee is found
125
in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also
for those of others based on the former's responsibility
under a relationship of patria potestas. Such
responsibility ceases when the persons or entity
concerned prove that they have observed the diligence
of a good father of the family to prevent damage. In
other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the
burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they
observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a
general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in
the hiring and supervision of the latter. It failed to
adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge
its burden under the last paragraph of Article 2180.
Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians
for Erlinda's condition.
Based on the foregoing, we hold that the Court of
Appeals erred in accepting and relying on the
testimonies of the witnesses for the private
respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut
the presumption of negligence. Upon these
disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 of the
Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, "subject to its
being updated" covering the period from 15 November
1985 up to 15 April 1992, based on monthly expenses
for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount
established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The
calculated amount was not even arrived at by looking
at the actual cost of proper hospice care for the patient.
What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to
bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in
the care of the chronically ill for the purpose of
providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance,
Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be
normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a
regular basis by a physical therapist to avoid muscle
atrophy, and by a pulmonary therapist to prevent the
accumulation of secretions which can lead to
respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of
proper care, not the cost of the care the family is usually
compelled to undertake at home to avoid bankruptcy.
However, the provisions of the Civil Code on actual or
compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may
be claimed by the plaintiff are those suffered by him as
he has duly proved. The Civil Code provides:
ARTICLE 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.
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has
been completed and that the cost can be liquidated.
However, these provisions neglect to take into account
those situations, as in this case, where the resulting
injury might be continuing and possible future
complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly
respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty.
In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate
damages are provided for. The reason is that these
damages cover two distinct phases.
As it would not be equitable — and certainly not in the
best interests of the administration of justice — for the
victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to
the compensatory damages previously awarded —
temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who
has remained in that condition for over a decade.
Having premised our award for compensatory
damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step
with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which
generally specializes in such care. They should not be
compelled by dire circumstances to provide
substandard care at home without the aid of
professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.
In Valenzuela vs. Court of Appeals, this Court was
confronted with a situation where the injury suffered
by the plaintiff would have led to expenses which were
difficult to estimate because while they would have
been a direct result of the injury (amputation), and were
certain to be incurred by the plaintiff, they were likely
to arise only in the future. We awarded P1,000,000.00 in
moral damages in that case.
Describing the nature of the injury, the Court therein
stated:
As a result of the accident, Ma.
Lourdes Valenzuela underwent a
traumatic amputation of her left
lower extremity at the distal left thigh
just above the knee. Because of this,
Valenzuela will forever be deprived
of the full ambulatory functions of
her left extremity, even with the use
of state of the art prosthetic
technology. Well beyond the period
of hospitalization (which was paid
for by Li), she will be required to
undergo adjustments in her
prosthetic devise due to the
shrinkage of the stump from the
process of healing.
These adjustments entail costs,
prosthetic replacements and months
of physical and occupational
rehabilitation and therapy. During
her lifetime, the prosthetic devise will
have to be replaced and readjusted to
changes in the size of her lower limb
effected by the biological changes of
middle-age, menopause and aging.
Assuming she reaches menopause,
for example, the prosthetic will have
to be adjusted to respond to the
126
 changes in bone resulting from a
precipitate decrease in calcium levels
observed in the bones of all post-
menopausal women. In other words,
the damage done to her would not
only be permanent and lasting, it
would also be permanently changing
and adjusting to the physiologic
changes which her body would
normally undergo through the years.
The replacements, changes, and
adjustments will require
corresponding adjustive physical and
occupational therapy. All of these
adjustments, it has been documented,
are painful.
xxx xxx xxx
A prosthetic devise, however
technologically advanced, will only
allow a reasonable amount of
functional restoration of the motor
functions of the lower limb. The
sensory functions are forever lost.
The resultant anxiety, sleeplessness,
psychological injury, mental and
physical pain are inestimable.
The injury suffered by Erlinda as a consequence of
private respondents' negligence is certainly much more
serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when
the incident occurred. She has been in a comatose state
for over fourteen years now. The burden of care has so
far been heroically shouldered by her husband and
children, who, in the intervening years have been
deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial
cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the
victim's actual injury would not even scratch the
surface of the resulting moral damage because it would
be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and
injury suffered by the victim or those actually affected
by the victim's condition. The husband and the
children, all petitioners in this case, will have to live
with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility
of the care of the victim. The family's moral injury and
suffering in this case is clearly a real one. For the
127
foregoing reasons, an award of P2,000,000.00 in moral
damages would be appropriate.
Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we
are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating
medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally
cause injury or death to their patients. However, intent
is immaterial in negligence cases because where
negligence exists and is proven, the same automatically
gives the injured a right to reparation for the damage
caused.
Established medical procedures and practices, though
in constant flux are devised for the purpose of
preventing complications. A physician's experience
with his patients would sometimes tempt him to
deviate from established community practices, and he
may end a distinguished career using unorthodox
methods without incident. However, when failure to
follow established procedure results in the evil
precisely sought to be averted by observance of the
procedure and a nexus is made between the deviation
and the injury or damage, the physician would
necessarily be called to account for it. In the case at bar,
the failure to observe pre-operative assessment protocol
which would have influenced the intubation in a
salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily
against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the
date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner
Erlinda Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary
damages and attorney's fees; and, 5) the costs of the
suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ.,
concur.
RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 124354, 11 April 2002, 380 SCRA 467
KAPUNAN, J p:
Private respondents De Los Santos Medical Center, Dr.
Orlino Hosaka and Dr. Perfecta Gutierrez move for a
reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for
petitioner Erlinda Ramos' comatose condition after she
delivered herself to them for their professional care and
management.
For better understanding of the issues raised in private
respondents' respective motions, we will briefly restate
the facts of the case as follows:
xxx xxx xxx
In the Resolution of February 21, 2000, this Court
denied the motions for reconsideration of private
respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration.
The Philippine College of Surgeons filed its Petition-in-
Intervention contending in the main that this Court
erred in holding private respondent Dr. Hosaka liable
under the captain-of-the-ship doctrine. According to the
intervenor, said doctrine had long been abandoned in
the United States in recognition of the developments in
modern medical and hospital practice. The Court noted
these pleadings in the Resolution of July 17, 2000.
On March 19, 2001, the Court heard the oral arguments
of the parties, including the intervenor. Also present
during the hearing were the amicii curiae: Dr. Felipe A.
Estrella, Jr., Consultant of the Philippine Charity
Sweepstakes, former Director of the Philippine General
Hospital and former Secretary of Health; Dr. Iluminada
T. Camagay, President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-Chair for
Research, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of
the Philippines; and Dr. Lydia M. Egay, Professor and
Vice-Chair for Academics, Department of
Anesthesiology, College of Medicine-Philippine
General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this
case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA
(SURGEON) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR
NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS
SANTOS MEDICAL CENTER) IS LIABLE FOR
ANY ACT OF NEGLIGENCE COMMITTED BY
THEIR VISITING CONSULTANT SURGEON
AND ANESTHESIOLOGIST.
We shall first resolve the issue pertaining to private
respondent Dr. Gutierrez. She maintains that the Court
erred in finding her negligent and in holding that it was
the faulty intubation which was the proximate cause of
Erlinda's comatose condition. The following objective
facts allegedly negate a finding of negligence on her
part: 1) That the outcome of the procedure was a
comatose patient and not a dead one; 2) That the
patient had a cardiac arrest; and 3) That the patient was
revived from that cardiac arrest. 9 In effect, Dr.
Gutierrez insists that, contrary to the finding of this
Court, the intubation she performed on Erlinda was
successful.
Unfortunately, Dr. Gutierrez' claim of lack of
negligence on her part is belied by the records of the
case. It has been sufficiently established that she failed
to exercise the standards of care in the administration of
anesthesia on a patient. Dr. Egay enlightened the Court
on what these standards are:
“. . . What are the standards of care
that an anesthesiologist should do
before we administer anesthesia? The
initial step is the preparation of the
patient for surgery and this is a pre-
operative evaluation because the
anesthesiologist is responsible for
determining the medical status of the
patient, developing the anesthesia
plan and acquainting the patient or
the responsible adult particularly if
we are referring with the patient or to
adult patient who may not have, who
may have some mental handicaps of
the proposed plans. We do pre-
operative evaluation because this
provides for an opportunity for us to
establish identification and personal
acquaintance with the patient. It also
makes us have an opportunity to
alleviate anxiety, explain techniques
and risks to the patient, given the
patient the choice and establishing
consent to proceed with the plan.
And lastly, once this has been agreed
upon by all parties concerned the
ordering of pre-operative
medications. And following this line
at the end of the evaluation we
usually come up on writing,
documentation is very important as
far as when we train an
anesthesiologist we always
emphasize this because we need
records for our protection, well,
records. And it entails having brief
summary of patient history and
physical findings pertinent to
anesthesia, plan, organize as a
problem list, the plan anesthesia
technique, the plan post operative,
pain management if appropriate,
special issues for this particular
patient. There are needs for special
care after surgery and if it so it must
be written down there and a request
must be made known to proper
authorities that such and such care is
necessary. And the request for
medical evaluation if there is an
indication. When we ask for a cardio-
pulmonary clearance it is not in fact
128
 to tell them if this patient is going to
be fit for anesthesia, the decision to
give anesthesia rests on the
anesthesiologist. What we ask them is
actually to give us the functional
capacity of certain systems which
may be affected by the anesthetic
agent or the technique that we are
going to use. But the burden of
responsibility in terms of selection of
agent and how to administer it rest
on the anesthesiologist.”
The conduct of a preanesthetic/preoperative evaluation
prior to an operation, whether elective or emergency,
cannot be dispensed with. Such evaluation is necessary
for the formulation of a plan of anesthesia care suited to
the needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the
patient's medical history, reviewing his current drug
therapy, conducting physical examination, interpreting
laboratory data, and determining the appropriate
prescription of preoperative medications as necessary
to the conduct of anesthesia.
during the administration of
anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her
patient for the first time only an hour
before the scheduled operative
procedure was, therefore, an act of
exceptional negligence and
professional irresponsibility. The
measures cautioning prudence and
vigilance in dealing with human lives
lie at the core of the physician's
centuries-old Hippocratic Oath. Her
failure to follow this medical
procedure is, therefore, a clear indicia
of her negligence.”
Further, there is no cogent reason for the Court to
reverse its finding that it was the faulty intubation on
Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr.
Gutierrez performed a medical procedure on her. Even
the counsel of Dr. Gutierrez admitted to this fact during
the oral arguments:
CHIEF JUSTICE:

Physical examination of the patient entails not only Mr. Counsel, you started your
evaluating the patient's central nervous system, argument saying that this involves a
cardiovascular system and lungs but also the upper comatose patient?
airway. Examination of the upper airway would in turn
include an analysis of the patient's cervical spine ATTY. GANA:
mobility, temporomandibular mobility, prominent
central incisors, deceased or artificial teeth, ability to Yes, Your Honor.
visualize uvula and the thyromental distance.
CHIEF JUSTICE:
Nonetheless, Dr. Gutierrez omitted to perform a
thorough preoperative evaluation on Erlinda. As she How do you mean by that, a
herself admitted, she saw Erlinda for the first time on comatose, a comatose after any other
the day of the operation itself, one hour before the acts were done by Dr. Gutierrez or
scheduled operation. She auscultated 14 the patient's comatose before any act was done by
heart and lungs and checked the latter's blood pressure her?
to determine if Erlinda was indeed fit for operation.
However, she did not proceed to examine the patient's ATTY. GANA:
airway. Had she been able to check petitioner Erlinda's
airway prior to the operation, Dr. Gutierrez would most No, we meant comatose as a final
probably not have experienced difficulty in intubating outcome of the procedure.
the former, and thus the resultant injury could have
been avoided. As we have stated in our Decision: CHIEF JUSTICE:

“In the case at bar, respondent Dra. Meaning to say, the patient became
Gutierrez admitted that she saw comatose after some intervention,
Erlinda for the first time on the day of professional acts have been done by
the operation itself, on 17 June 1985. Dr. Gutierrez?
Before this date, no prior
consultations with, or pre-operative ATTY. GANA:
evaluation of Erlinda was done by
her. Until the day of the operation, Yes, Your Honor.
respondent Dra. Gutierrez was
unaware of the physiological make- CHIEF JUSTICE:
up and needs of Erlinda. She was
likewise not properly informed of the
possible difficulties she would face

129
 In other words, the comatose status
was a consequence of some acts
performed by Dr. Gutierrez?
ATTY. GANA:
It was a consequence of the well,
(interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not
correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.
What is left to be determined therefore is whether
Erlinda's hapless condition was due to any fault or
negligence on the part of Dr. Gutierrez while she
(Erlinda) was under the latter's care. Dr. Gutierrez
maintains that the bronchospasm and cardiac arrest
resulting in the patient's comatose condition was
brought about by the anaphylactic reaction of the
patient to Thiopental Sodium (pentothal). 18 In the
Decision, we explained why we found Dr. Gutierrez'
theory unacceptable. In the first place, Dr. Eduardo
Jamora, the witness who was presented to support her
(Dr. Gutierrez) theory, was a pulmonologist. Thus, he
could not be considered an authority on anesthesia
practice and procedure and their complications.
Secondly, there was no evidence on record to support
the theory that Erlinda developed an allergic reaction to
pentothal. Dr. Camagay enlightened the Court as to the
manifestations of an allergic reaction in this wise:
“DR. CAMAGAY:
All right, let us qualify an allergic
reaction. In medical terminology an
allergic reaction is something which
is not usual response and it is further
qualified by the release of a hormone
called histamine and histamine has
an effect on all the organs of the body
generally release because the
substance that entered the body
reacts with the particular cell, the
mass cell, and the mass cell secretes
this histamine. In a way it is some
form of response to take away that
which is not mine, which is not part
of the body. So, histamine has
multiple effects on the body. So, one
of the effects as you will see you will
have redness, if you have an allergy
you will have tearing of the eyes, you
will have swelling, very crucial
swelling sometimes of the larynges
which is your voice box main airway,
that swelling may be enough to
obstruct the entry of air to the trachea
and you could also have contraction,
constriction of the smaller airways
beyond the trachea, you see you have
the trachea this way, we brought
some visual aids but unfortunately
we do not have a projector. And then
you have the smaller airways, the
bronchi and then eventually into the
mass of the lungs you have the
bronchus. The difference is that these
tubes have also in their walls muscles
and this particular kind of muscles is
smooth muscle so, when histamine is
released they close up like this and
that phenomenon is known as bronco
spasm. However, the effects of
histamine also on blood vessels are
different. They dilate blood vessel
open up and the patient or whoever
has this histamine release has
hypertension or low blood pressure
to a point that the patient may have
decrease blood supply to the brain
and may collapse so, you may have
people who have this.”
These symptoms of an allergic reaction were not shown
to have been extant in Erlinda's case. As we held in our
Decision, "no evidence of stridor, skin reactions, or
wheezing – some of the more common accompanying
signs of an allergic reaction – appears on record. No
laboratory data were ever presented to the court."
Dr. Gutierrez, however, insists that she successfully
intubated Erlinda as evidenced by the fact that she was
revived after suffering from cardiac arrest. Dr.
Gutierrez faults the Court for giving credence to the
testimony of Cruz on the matter of the administration
of anesthesia when she (Cruz), being a nurse, was
allegedly not qualified to testify thereon. Rather, Dr.
Gutierrez invites the Court's attention to her synopsis
on what transpired during Erlinda's intubation:
12:15 p.m. Patient was inducted
with sodium pentothal
2.5% (250 mg) given by
slow IV. 02 was started
by mask. After
pentothal injection this
was followed by IV
injection of Norcuron 4
mg. After 2 minutes 02
was given by positive
pressure for about one
minute. Intubation with
endotracheal tube 7.5
130
 m. in diameter was From the foregoing, it can be allegedly seen that there
done with slight was no withdrawal (extubation) of the tube. And the
difficulty (short neck & fact that the cyanosis allegedly disappeared after pure
slightly prominent oxygen was supplied through the tube proved that it
upper teeth) chest was was properly placed.
examined for breath
sounds & checked if The Court has reservations on giving evidentiary
equal on both sides. The weight to the entries purportedly contained in Dr.
tube was then anchored Gutierrez' synopsis. It is significant to note that the said
to the mouth by plaster record prepared by Dr. Gutierrez was made only after
& cuff inflated. Ethrane Erlinda was taken out of the operating room. The
2% with 02 4 liters was standard practice in anesthesia is that every single act
given. Blood pressure that the anesthesiologist performs must be recorded. In
was checked 120/80 & Dr. Gutierrez' case, she could not account for at least
heart rate regular and ten (10) minutes of what happened during the
normal 90/min. administration of anesthesia on Erlinda. The following
exchange between Dr. Estrella, one of the amicii curiae,
12:25 p.m. After 10 minutes patient and Dr. Gutierrez is instructive:
was cyanotic. Ethrane
was discontinued & 02 DR. ESTRELLA
given alone. Cyanosis You mentioned that there were
disappeared. Blood two (2) attempts in the
pressure and heart intubation period?
beats stable.
DR. GUTIERREZ
12:30 p.m. Cyanosis again Yes.
reappeared this time Q There were two attempts. In the
with sibilant and first attempt was the tube
sonorous rales all over inserted or was the laryngoscope
the chest. D_5%_H2O & only inserted, which was
1 ampule of inserted?
aminophyline by fast A All the laryngoscope.
drip was started. Still Q All the laryngoscope. But if I
the cyanosis was remember right somewhere in
persistent. Patient was the re-direct, a certain lawyer,
connected to a cardiac you were asked that you did a
monitor. Another first attempt and the question
ampule of of [sic] was – did you withdraw the
aminophyline was tube? And you said – you never
given and solu cortef withdrew the tube, is that right?
was given. A Yes.
Q Yes. And so if you never
12:40 p.m. There was cardiac withdrew the tube then there
arrest. Extra cardiac was no, there was no insertion of
massage and the tube during that first
intercardiac injection of attempt. Now, the other thing
adrenalin was given & that we have to settle here is –
heart beat reappeared when cyanosis occurred, is it
in less than one minute. recorded in the anesthesia record
Sodium bicarbonate & when the cyanosis, in your
another dose of solu recording when did the cyanosis
cortef was given by IV. occur?
Cyanosis slowly A (sic)
disappeared & 02 Q Is it a standard practice of
continuously given & anesthesia that whatever you do
assisted positive during that period or from the
pressure. Laboratory time of induction to the time that
exams done (see results you probably get the patient out
in chart). of the operating room that every
single action that you do is so
Patient was transferred to ICU for further management. recorded in your anesthesia
record?

131
A I was not able to record
everything I did not have time
anymore because I did that after
the, when the patient was about
to leave the operating room.
When there was second cyanosis
already that was the
(interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was
(interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you
started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you
gave was what?
A The first medication, no, first the
patient was oxygenated for
around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the
resident physician to start giving
the pentothal very slowly and
that was around one minute.
Q So, that is about 12:13 no, 12:15,
12:17?
A Yes, and then, after one minute
another oxygenation was given
and after (interrupted)
Q 12:18?
A Yes, and then after giving the
oxygen we start the menorcure
which is a relaxant. After that
relaxant (interrupted)
Q After that relaxant, how long do
you wait before you do any
manipulation?
A Usually you wait for two
minutes or three minutes.
Q So, if our estimate of the time is
accurate we are now more or less
12:19, is that right?
A May be.
Q 12:19. And at that time, what
would have been done to this
patient?
A After that time you examine the,
if there is relaxation of the jaw
which you push it downwards
and when I saw that the patient
was relax because that
monorcure is a relaxant, you
cannot intubate the patient or
insert the laryngoscope if it is not
keeping him relax. So, my first
attempt when I put the
laryngoscope on I saw the
trachea was deeply interiorly. So,
what I did ask "mahirap ata ito
ah." So, I removed the
laryngoscope and oxygenated
again the patient.
Q So, more or less you attempted
to do an intubation after the first
attempt as you claimed that it
was only the laryngoscope that
was inserted.
A Yes.
Q And in the second attempt you
inserted the laryngoscope and
now possible intubation?
A Yes.
Q And at that point, you made a
remark, what remark did you
make?
A I said "mahirap ata ito" when the
first attempt I did not see the
trachea right away. That was
when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able
to intubate right away within
two to three seconds.
Q At what point, for purposes of
discussion without accepting it,
at what point did you make the
comment "na mahirap ata to
intubate, mali ata ang
pinasukan"?
A I did not say "mali ata ang
pinasukan" I never said that.
Q Well, just for the information of
the group here the remarks I am
making is based on the
documents that were forwarded
to me by the Supreme Court.
That is why for purposes of
discussion I am trying to clarify
this for the sake of
enlightenment. So, at what point
did you ever make that
comment?
A Which one, sir?
Q The "mahirap intubate ito"
assuming that you (interrupted)
A Iyon lang, that is what I only said
"mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I
inserted the laryngoscope for the
first time.
Q So, when you claim that at the
first attempt you inserted the
laryngoscope, right?
A Yes.
Q But in one of the recordings
somewhere at the, somewhere in
the transcript of records that
when the lawyer of the other
party try to inquire from you
132
 during the first attempt that was
the time when "mayroon ba
kayong hinugot sa tube, I do not
remember the page now, but it
seems to me it is there. So, that it
was on the second attempt that
(interrupted)
A I was able to intubate.
Q And this is more or less about
what time 12:21?
A May be, I cannot remember the
time, Sir.
Q Okay, assuming that this was
done at 12:21 and looking at the
anesthesia records from 12:20 to
12:30 there was no recording of
the vital signs. And can we
presume that at this stage there
was already some problems in
handling the patient?
A Not yet.
Q But why are there no recordings
in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why
did you not have time?
A Because it was so fast, I really (at
this juncture the witness is
laughing)
Q No, I am just asking. Remember I
am not here not to pin point on
anybody I am here just to more
or less clarify certainty more or
less on the record.
A Yes, Sir.
Q And so it seems that there were
no recording during that span of
ten (10) minutes. From 12:20 to
12:30, and going over your
narration, it seems to me that the
cyanosis appeared ten (10)
minutes after induction, is that
right?
A Yes.
Q And that is after induction 12:15
that is 12:25 that was the first
cyanosis?
A Yes.
Q And that the 12:25 is after the
12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we
are just trying to enlighten, I am
just going over the record ano,
kung mali ito kuwan eh di ano.
So, ganoon po ano, that it seems
to me that there is no recording
from 12:20 to 12:30, so, I am just
wondering why there were no
recordings during the period and
then of course the second
cyanosis, after the first cyanosis.
133
I think that was the time Dr.
Hosaka came in?
A No, the first cyanosis
(interrupted).
We cannot thus give full credence to Dr. Gutierrez'
synopsis in light of her admission that it does not fully
reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out
by Dr. Estrella, there was a ten-minute gap in Dr.
Gutierrez' synopsis, i.e., the vital signs of Erlinda were
not recorded during that time. The absence of these
data is particularly significant because, as found by the
trial court, it was the absence of oxygen supply for four
(4) to five (5) minutes that caused Erlinda's comatose
condition.
On the other hand, the Court has no reason to
disbelieve the testimony of Cruz. As we stated in the
Decision, she is competent to testify on matters which
she is capable of observing such as, the statements and
acts of the physician and surgeon, external appearances
and manifest conditions which are observable by any
one. Cruz, Erlinda's sister-in-law, was with her inside
the operating room. Moreover, being a nurse and Dean
of the Capitol Medical Center School of Nursing at that,
she is not entirely ignorant of anesthetic procedure.
Cruz narrated that she heard Dr. Gutierrez remark,
"Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." She observed
that the nailbeds of Erlinda became bluish and
thereafter Erlinda was placed in trendelenburg
position. 25 Cruz further averred that she noticed that
the abdomen of Erlinda became distended.
The cyanosis (bluish discoloration of the skin or
mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood) and enlargement of
the stomach of Erlinda indicate that the endotracheal
tube was improperly inserted into the esophagus
instead of the trachea. Consequently, oxygen was
delivered not to the lungs but to the gastrointestinal
tract. This conclusion is supported by the fact that
Erlinda was placed in trendelenburg position. This
indicates that there was a decrease of blood supply to
the patient's brain. The brain was thus temporarily
deprived of oxygen supply causing Erlinda to go into
coma.
The injury incurred by petitioner Erlinda does not
normally happen absent any negligence in the
administration of anesthesia and in the use of an
endotracheal tube. As was noted in our Decision, the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents Dr. Gutierrez
and Dr. Hosaka. In Voss vs. Bridwell, which involved a
patient who suffered brain damage due to the wrongful
administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the
Kansas Supreme Court applied the doctrine of res ipsa
loquitur, reasoning that the injury to the patient therein
was one which does not ordinarily take place in the
absence of negligence in the administration of an
anesthetic, and in the use and employment of an
endotracheal tube. The court went on to say that
"[o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of
administering such anesthesia in the absence of
negligence. Upon these facts and under these
circumstances, a layman would be able to say, as a
matter of common knowledge and observation, that the
consequences of professional treatment were not as
such as would ordinarily have followed if due care had
been exercised. Considering the application of the
doctrine of res ipsa loquitur, the testimony of Cruz was
properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court
erred in finding him negligent as a surgeon by applying
the Captain-of-the-Ship doctrine. Dr. Hosaka argues
that the trend in United States jurisprudence has been
to reject said doctrine in light of the developments in
medical practice. He points out that anesthesiology and
surgery are two distinct and specialized fields in
medicine and as a surgeon, he is not deemed to have
control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist in her field
and has acquired skills and knowledge in the course of
her training which Dr. Hosaka, as a surgeon, does not
possess. He states further that current American
jurisprudence on the matter recognizes that the trend
towards specialization in medicine has created
situations where surgeons do not always have the right
to control all personnel within the operating room,
especially a fellow specialist.
Dr. Hosaka cites the case of Thomas v. Raleigh General
Hospital, which involved a suit filed by a patient who
lost his voice due to the wrongful insertion of the
endotracheal tube preparatory to the administration of
anesthesia in connection with the laparotomy to be
conducted on him. The patient sued both the
anesthesiologist and the surgeon for the injury suffered
by him. The Supreme Court of Appeals of West
Virginia held that the surgeon could not be held liable
for the loss of the patient's voice, considering that the
surgeon did not have a hand in the intubation of the
patient. The court rejected the application of the
"Captain-of-the-Ship Doctrine," citing the fact that the
field of medicine has become specialized such that
surgeons can no longer be deemed as having control
over the other personnel in the operating room. It held
that "[a]n assignment of liability based on actual control
more realistically reflects the actual relationship which
exists in a modern operating room." Hence, only the
anesthesiologist who inserted the endotracheal tube
into the patient's throat was held liable for the injury
suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do
away with the Captain-of-the-Ship doctrine does not
mean that this Court will ipso facto follow said trend.
Due regard for the peculiar factual circumstances
obtaining in this case justify the application of the
Captain-of-the-Ship doctrine. From the facts on record
it can be logically inferred that Dr. Hosaka exercised a
certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to
petitioners the services of Dr. Gutierrez. In effect, he
represented to petitioners that Dr. Gutierrez possessed
the necessary competence and skills. Drs. Hosaka and
Gutierrez had worked together since 1977. Whenever
Dr. Hosaka performed a surgery, he would always
engage the services of Dr. Gutierrez to administer the
anesthesia on his patient.
Second, Dr. Hosaka himself admitted that he was the
attending physician of Erlinda. Thus, when Erlinda
showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and
cardiologist to help resuscitate Erlinda.
Third, it is conceded that in performing their
responsibilities to the patient, Drs. Hosaka and
Gutierrez worked as a team. Their work cannot be
placed in separate watertight compartments because
their duties intersect with each other.
While the professional services of Dr. Hosaka and Dr.
Gutierrez were secured primarily for their performance
of acts within their respective fields of expertise for the
treatment of petitioner Erlinda, and that one does not
exercise control over the other, they were certainly not
completely independent of each other so as to absolve
one from the negligent acts of the other physician.
That they were working as a medical team is evident
from the fact that Dr. Hosaka was keeping an eye on
the intubation of the patient by Dr. Gutierrez, and while
doing so, he observed that the patient's nails had
become dusky and had to call Dr. Gutierrez's attention
thereto. The Court also notes that the counsel for Dr.
Hosaka admitted that in practice, the anesthesiologist
would also have to observe the surgeon's acts during
the surgical process and calls the attention of the
surgeon whenever necessary in the course of the
treatment. The duties of Dr. Hosaka and those of Dr.
Gutierrez in the treatment of petitioner Erlinda are
therefore not as clear-cut as respondents claim them to
be. On the contrary, it is quite apparent that they have a
common responsibility to treat the patient, which
responsibility necessitates that they call each other's
attention to the condition of the patient while the other
physician is performing the necessary medical
procedures.
It is equally important to point out that Dr. Hosaka was
remiss in his duty of attending to petitioner Erlinda
promptly, for he arrived more than three (3) hours late
for the scheduled operation. The cholecystectomy was
set for June 17, 1985 at 9:00 a.m., but he arrived at
134
DLSMC only at around 12:10 p.m. In reckless disregard
for his patient's well being, Dr. Hosaka scheduled two
procedures on the same day, just thirty minutes apart
from each other, at different hospitals. Thus, when the
first procedure (protoscopy) at the Sta. Teresita
Hospital did not proceed on time, Erlinda was kept in a
state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlinda's
scheduled operation subjected her to continued
starvation and consequently, to the risk of acidosis, 40
or the condition of decreased alkalinity of the blood and
tissues, marked by sickly sweet breath, headache,
nausea and vomiting, and visual disturbances. 41 The
long period that Dr. Hosaka made Erlinda wait for him
certainly aggravated the anxiety that she must have
been feeling at the time. It could be safely said that her
anxiety adversely affected the administration of
anesthesia on her. As explained by Dr. Camagay, the
patient's anxiety usually causes the outpouring of
adrenaline which in turn results in high blood pressure
or disturbances in the heart rhythm:
“DR. CAMAGAY:
. . . Pre-operative medication has
three main functions: One is to
alleviate anxiety. Second is to dry up
the secretions and Third is to relieve
pain. Now, it is very important to
alleviate anxiety because anxiety is
associated with the outpouring of
certain substances formed in the body
called adrenalin. When a patient is
anxious there is an outpouring of
adrenalin which would have adverse
effect on the patient. One of it is high
blood pressure, the other is that he
opens himself to disturbances in the
heart rhythm, which would have
adverse implications. So, we would
like to alleviate patient's anxiety
mainly because he will not be in
control of his body there could be
adverse results to surgery and he will
be opened up; a knife is going to
open up his body. . . .”
Dr. Hosaka cannot now claim that he was entirely
blameless of what happened to Erlinda. His conduct
clearly constituted a breach of his professional duties to
Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor,
you were talking about anxiety,
would you consider a patient's stay
on the operating table for three hours
sufficient enough to aggravate or
magnify his or her anxiety?
135
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in
this particular case that was the case,
three hours waiting and the patient
was already on the operating table
(interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that
the surgeon contributed to the
aggravation of the anxiety of the
patient?
DR. CAMAGAY:
That this operation did not take place
as scheduled is already a source of
anxiety and most operating tables are
very narrow and that patients are
usually at risk of falling on the floor
so there are restraints that are placed
on them and they are never, never
left alone in the operating room by
themselves specially if they are
already pre-medicated because they
may not be aware of some of their
movement that they make which
would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would
require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it
is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:

Yes, Your Honor.
Dr. Hosaka's irresponsible conduct of arriving very late
for the scheduled operation of petitioner Erlinda is
violative, not only of his duty as a physician "to serve
the interest of his patients with the greatest solicitude,
giving them always his best talent and skill," but also of
Article 19 of the Civil Code which requires a person, in
the performance of his duties, to act with justice and
give everyone his due.
Anent private respondent DLSMC's liability for the
resulting injury to petitioner Erlinda, we held that
respondent hospital is solidarily liable with respondent
doctors therefor under Article 2180 of the Civil Code
since there exists an employer-employee relationship
between private respondent DLSMC and Drs. Gutierrez
and Hosaka:
“In other words, private hospitals,
hire, fire and exercise real control
over their attending and visiting
"consultant" staff. While "consultants"
are not, technically employees, . . . the
control exercised, the hiring and the
right to terminate consultants all
fulfill the important hallmarks of an
employer-employee relationship,
with the exception of the payment of
wages. In assessing whether such a
relationship in fact exists, the control
test is determining . . . .”
DLSMC however contends that applying the four-fold
test in determining whether such a relationship exists
between it and the respondent doctors, the inescapable
conclusion is that DLSMC cannot be considered an
employer of the respondent doctors.
It has been consistently held that in determining
whether an employer-employee relationship exists
between the parties, the following elements must be
present: (1) selection and engagement of services; (2)
payment of wages; (3) the power to hire and fire; and
(4) the power to control not only the end to be achieved,
but the means to be used in reaching such an end.
DLSMC maintains that first, a hospital does not hire or
engage the services of a consultant, but rather, accredits
the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the
hospital upon a showing by the consultant that he or
she possesses the necessary qualifications, such as
accreditation by the appropriate board (diplomate),
evidence of fellowship and references. Second, it is not
the hospital but the patient who pays the consultant's
fee for services rendered by the latter. Third, a hospital
does not dismiss a consultant; instead, the latter may
lose his or her accreditation or privileges granted by the
hospital. Lastly, DLSMC argues that when a doctor
refers a patient for admission in a hospital, it is the
doctor who prescribes the treatment to be given to said
patient. The hospital's obligation is limited to providing
the patient with the preferred room accommodation,
the nutritional diet and medications prescribed by the
doctor, the equipment and facilities necessary for the
treatment of the patient, as well as the services of the
hospital staff who perform the ministerial tasks of
ensuring that the doctor's orders are carried out strictly.
After a careful consideration of the arguments raised by
DLSMC, the Court finds that respondent hospital's
position on this issue is meritorious. There is no
employer-employee relationship between DLSMC and
Drs. Gutierrez and Hosaka which would hold DLSMC
solidarily liable for the injury suffered by petitioner
Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the
admission of a physician to membership in DLSMC's
medical staff as active or visiting consultant is first
decided upon by the Credentials Committee thereof,
which is composed of the heads of the various specialty
departments such as the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the department
head of the particular specialty applied for as chairman.
The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator
the acceptance or rejection of the applicant physician,
and said director or administrator validates the
committee's recommendation. Similarly, in cases where
a disciplinary action is lodged against a consultant, the
same is initiated by the department to whom the
consultant concerned belongs and filed with the Ethics
Committee consisting of the department specialty
heads. The medical director/hospital administrator
merely acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which
pays any of its consultants for medical services
rendered by the latter to their respective patients.
Moreover, the contract between the consultant in
respondent hospital and his patient is separate and
distinct from the contract between respondent hospital
and said patient. The first has for its object the rendition
of medical services by the consultant to the patient,
while the second concerns the provision by the hospital
of facilities and services by its staff such as nurses and
laboratory personnel necessary for the proper treatment
of the patient.
Further, no evidence was adduced to show that the
injury suffered by petitioner Erlinda was due to a
failure on the part of respondent DLSMC to provide for
hospital facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on
the part of DLSMC for the injury suffered by petitioner
Erlinda.
Finally, the Court also deems it necessary to modify the
award of damages to petitioners in view of the
supervening event of petitioner Erlinda's death. In the
136
assailed Decision, the Court awarded actual damages of
One Million Three Hundred Fifty-Two Thousand Pesos
(P1,352,000.00) to cover the expenses for petitioner
Erlinda's treatment and care from the date of
promulgation of the Decision up to the time the patient
expires or survives. In addition thereto, the Court
awarded temperate damages of One Million Five
Hundred Thousand Pesos (P1,500,000.00) in view of the
chronic and continuing nature of petitioner Erlinda's
injury and the certainty of further pecuniary loss by
petitioners as a result of said injury, the amount of
which, however, could not be made with certainty at
the time of the promulgation of the decision. The Court
justified such award in this manner:
Our rules on actual or compensatory damages
generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has
been completed and that the cost can be liquidated.
However, these provisions neglect to take into account
those situations, as in this case, where the resulting
injury might be continuing and possible future
complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly
respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty.
In other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate
damages are provided for. The reason is that these
damages cover two distinct phases.
As it would not be equitable — and certainly not in the
best interests of the administration of justice — for the
victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to
the compensatory damages previously awarded —
temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who
has remained in that condition for over a decade.
Having premised our award for compensatory
damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step
with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which
generally specializes in such care. They should not be
compelled by dire circumstances to provide
substandard care at home without the aid of
137
professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.
However, subsequent to the promulgation of the
Decision, the Court was informed by petitioner Rogelio
that petitioner Erlinda died on August 3, 1999. In view
of this supervening event, the award of temperate
damages in addition to the actual or compensatory
damages would no longer be justified since the actual
damages awarded in the Decision are sufficient to cover
the medical expenses incurred by petitioners for the
patient. Hence, only the amounts representing actual,
moral and exemplary damages, attorney's fees and
costs of suit should be awarded to petitioners.
xxx xxx xxx
SO ORDERED.
Davide, Jr., C.J., Puno and Ynares-Santiago, JJ., concur.
REYES, ET AL. vs.
SISTERS OF MERCY HOSPITAL, ET AL.
G.R. No. 130547, 3 October 2000, 341 SCRA 760
MENDOZA, J p:
This is a petition for review of the decision 1 of the
Court of Appeals in CA-G.R. CV No. 36551 affirming
the decision of the Regional Trial Court, Branch IX,
Cebu City which dismissed a complaint for damages
filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late
Jorge Reyes. The other petitioners, namely, Rose
Nahdja, Johnny, Lloyd, and Kristine, all surnamed
Reyes, were their children. Five days before his death
on January 8, 1987, Jorge had been suffering from a
recurring fever with chills. After he failed to get relief
from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he
decided to see the doctor.
On January 8, 1987, he was taken to the Mercy
Community Clinic by his wife. He was attended to by
respondent Dr. Marlyn Rico, resident physician and
admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted
that at the time of his admission, Jorge was conscious,
ambulatory, oriented, coherent, and with respiratory
distress. Typhoid fever was then prevalent in the
locality, as the clinic had been getting from 15 to 20
cases of typhoid per month. Suspecting that Jorge could
be suffering from this disease, Dr. Rico ordered a Widal
Test, a standard test for typhoid fever, to be performed
on Jorge. Blood count, routine urinalysis, stool
examination, and malarial smear were also made. 4
After about an hour, the medical technician submitted
the results of the test from which Dr. Rico concluded
that Jorge was positive for typhoid fever. As her shift
was only up to 5:00 p.m., Dr. Rico indorsed Jorge to
respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the
evening. She also took Jorge's history and gave him a
physical examination. Like Dr. Rico, her impression
was that Jorge had typhoid fever. Antibiotics being the
accepted treatment for typhoid fever, she ordered that a
compatibility test with the antibiotic chloromycetin be
done on Jorge. Said test was administered by nurse
Josephine Pagente who also gave the patient a dose of
triglobe. As she did not observe any adverse reaction by
the patient to chloromycetin, Dr. Blanes ordered the
first five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second
dose was administered on Jorge about three hours later
just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was
called as Jorge's temperature rose to 41°C. The patient
also experienced chills and exhibited respiratory
distress, nausea, vomiting, and convulsions. Dr. Blanes
put him under oxygen, used a suction machine, and
administered hydrocortisone, temporarily easing the
patient's convulsions. When he regained consciousness,
the patient was asked by Dr. Blanes whether he had a
previous heart ailment or had suffered from chest pains
in the past. Jorge replied he did not. After about 15
minutes, however, Jorge again started to vomit, showed
restlessness, and his convulsions returned. Dr. Blanes
re-applied the emergency measures taken before and,
in addition, valium was administered. Jorge, however,
did not respond to the treatment and slipped into
cyanosis, a bluish or purplish discoloration of the skin
or mucous membrane due to deficient oxygenation of
the blood. At around 2:00 a.m., Jorge died. He was forty
years old. The cause of his death was "Ventricular
Arrythemia Secondary to Hyperpyrexia and typhoid
fever."
On June 3, 1987, petitioners filed before the Regional
Trial Court of Cebu City a complaint for damages
against respondents Sisters of Mercy, Sister Rose
Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse
Josephine Pagente. On September 24, 1987, petitioners
amended their complaint to implead respondent Mercy
Community Clinic as additional defendant and to drop
the name of Josephine Pagente as defendant since she
was no longer connected with respondent hospital.
Their principal contention was that Jorge did not die of
typhoid fever. Instead, his death was due to the
wrongful administration of chloromycetin. They
contended that had respondent doctors exercised due
care and diligence, they would not have recommended
and rushed the performance of the Widal Test, hastily
concluded that Jorge was suffering from typhoid fever,
and administered chloromycetin without first
conducting sufficient tests on the patient's compatibility
with said drug. They charged respondent clinic and its
directress, Sister Rose Palacio, with negligence in failing
to provide adequate facilities and in hiring negligent
doctors and nurses.
Respondents denied the charges. During the pre-trial
conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due
to or caused by the negligence, carelessness,
imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community
Clinic was negligent in the hiring of its employees; and
(3) whether either party was entitled to damages. The
case was then heard by the trial court during which, in
addition to the testimonies of the parties, the
testimonies of doctors as expert witnesses were
presented.
Petitioners offered the testimony of Dr. Apolinar
Vacalares, Chief Pathologist at the Northern Mindanao
Training Hospital, Cagayan de Oro City. On January 9,
1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he
did not open the skull to examine the brain. His
findings showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of
the nodules. Dr. Vacalares testified that Jorge did not
die of typhoid fever. He also stated that he had not seen
a patient die of typhoid fever within five days from the
onset of the disease.
For their part, respondents offered the testimonies of
Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong
is a diplomate in internal medicine whose expertise is
microbiology and infectious diseases. He is also a
consultant at the Cebu City Medical Center and an
associate professor of medicine at the South Western
University College of Medicine in Cebu City. He had
treated over a thousand cases of typhoid patients.
According to Dr. Gotiong, the patient's history and
positive Widal Test results ratio of 1:320 would make
him suspect that the patient had typhoid fever. As to
Dr. Vacalares' observation regarding the absence of
ulceration in Jorge's gastro-intestinal tract, Dr. Gotiong
said that such hyperplasia in the intestines of a typhoid
victim may be microscopic. He noted that since the
toxic effect of typhoid fever may lead to meningitis, Dr.
Vacalares' autopsy should have included an
examination of the brain.
The other doctor presented was Dr. Ibarra Panopio, a
member of the American Board of Pathology, examiner
of the Philippine Board of Pathology from 1978 to 1991,
fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief
pathologist of the Andres Soriano Jr. Memorial Hospital
in Toledo City. Dr. Panopio stated that although he was
partial to the use of the culture test for its greater
reliability in the diagnosis of typhoid fever, the Widal
Test may also be used. Like Dr. Gotiong, he agreed that
the 1:320 ratio in Jorge's case was already the maximum
by which a conclusion of typhoid fever may be made.
No additional information may be deduced from a
138
higher dilution. He said that Dr. Vacalares' autopsy on
Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its
decision absolving respondents from the charges of
negligence and dismissing petitioners' action for
damages. The trial court likewise dismissed
respondents' counterclaim, holding that, in seeking
damages from respondents, petitioners were impelled
by the honest belief that Jorge's death was due to the
latter's negligence.
Petitioners brought the matter to the Court of Appeals.
On July 31, 1997, the Court of Appeals affirmed the
decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
xxx xxx xxx
Petitioner's action is for medical malpractice. This is a
particular form of negligence which consists in the
failure of a physician or surgeon to apply to his practice
of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under
similar conditions, and in like surrounding
circumstances. In order to successfully pursue such a
claim, a patient must prove that the physician or
surgeon either failed to do something which a
reasonably prudent physician or surgeon would have
done, or that he or she did something that a reasonably
prudent physician or surgeon would not have done,
and that the failure or action caused injury to the
patient. There are thus four elements involved in
medical negligence cases, namely: duty, breach, injury,
and proximate causation.
In the present case, there is no doubt that a physician-
patient relationship existed between respondent
doctors and Jorge Reyes. Respondents were thus duty-
bound to use at least the same level of care that any
reasonably competent doctor would use to treat a
condition under the same circumstances. It is breach of
this duty which constitutes actionable malpractice. As
to this aspect of medical malpractice, the determination
of the reasonable level of care and the breach thereof,
expert testimony is essential. Inasmuch as the causes of
the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.
Res Ipsa Loquitur
There is a case when expert testimony may be
dispensed with, and that is under the doctrine of res
ipsa loquitur. As held in Ramos v. Court of Appeals:
Although generally, expert medical
testimony is relied upon in
139
malpractice suits to prove that a
physician has done a negligent act or
that he has deviated from the
standard medical procedure, when
the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for
expert medical testimony is
dispensed with because the injury
itself provides the proof of
negligence. The reason is that the
general rule on the necessity of expert
testimony applies only to such
matters clearly within the domain of
medical science, and not to matters
that are within the common
knowledge of mankind which may be
testified to by anyone familiar with
the facts. Ordinarily, only physicians
and surgeons of skill and experience
are competent to testify as to whether
a patient has been treated or operated
upon with a reasonable degree of
skill and care. However, testimony as
to the statements and acts of
physicians and surgeons, external
appearances, and manifest conditions
which are observable by any one may
be given by non-expert witnesses.
Hence, in cases where the res ipsa
loquitur is applicable, the court is
permitted to find a physician
negligent upon proper proof of injury
to the patient, without the aid of
expert testimony, where the court
from its fund of common knowledge
can determine the proper standard of
care. Where common knowledge and
experience teach that a resulting
injury would not have occurred to
the patient if due care had been
exercised, an inference of negligence
may be drawn giving rise to an
application of the doctrine of res ipsa
loquitur without medical evidence,
which is ordinarily required to show
not only what occurred but how and
why it occurred. When the doctrine is
appropriate, all that the patient must
do is prove a nexus between the
particular act or omission complained
of and the injury sustained while
under the custody and management
of the defendant without need to
produce expert medical testimony to
establish the standard of care. Resort
to res ipsa loquitur is allowed because
there is no other way, under usual
and ordinary conditions, by which
the patient can obtain redress for
injury suffered by him.
 Thus, courts of other jurisdictions
have applied the doctrine in the
following situations: leaving of a
foreign object in the body of the
patient after an operation, injuries
sustained on a healthy part of the
body which was not under, or in the
area, of treatment, removal of the
wrong part of the body when another
part was intended, knocking out a
tooth while a patient's jaw was under
anesthetic for the removal of his
tonsils, and loss of an eye while the
patient was under the influence of
anesthetic, during or following an
operation for appendicitis, among
others.
Petitioners asserted in the Court of Appeals that the
doctrine of res ipsa loquitur applies to the present case
because Jorge Reyes was merely experiencing fever and
chills for five days and was fully conscious, coherent,
and ambulant when he went to the hospital. Yet, he
died after only ten hours from the time of his
admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the
application of res ipsa loquitur were present, namely: (1)
the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and
(3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured.
The contention is without merit. We agree with the
ruling of the Court of Appeals. In the Ramos case, the
question was whether a surgeon, an anesthesiologist,
and a hospital should be made liable for the comatose
condition of a patient scheduled for cholecystectomy. In
that case, the patient was given anesthesia prior to her
operation. Noting that the patient was neurologically
sound at the time of her operation, the Court applied
the doctrine of res ipsa loquitur as mental brain damage
does not normally occur in a gallbladder operation in
the absence of negligence of the anesthesiologist.
Taking judicial notice that anesthesia procedures had
become so common that even an ordinary person could
tell if it was administered properly, we allowed the
testimony of a witness who was not an expert. In this
case, while it is true that the patient died just a few
hours after professional medical assistance was
rendered, there is really nothing unusual or
extraordinary about his death. Prior to his admission,
the patient already had recurring fevers and chills for
five days unrelieved by the analgesic, antipyretic, and
antibiotics given him by his wife. This shows that he
had been suffering from a serious illness and
professional medical help came too late for him.
Respondents alleged failure to observe due care was
not immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required
expert opinion on the alleged breach by respondents of
the standard of care required by the circumstances.
Furthermore, on the issue of the correctness of her
diagnosis, no presumption of negligence can be applied
to Dr. Marlyn Rico. As held in Ramos:
“. . . Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily
used but a rule to be cautiously
applied, depending upon the
circumstances of each case. It is
generally restricted to situations in
malpractice cases where a layman is
able to say, as a matter of common
knowledge and observation, that the
consequences of professional care
were not as such as would ordinarily
have followed if due care had been
exercised. A distinction must be
made between the failure to secure
results, and the occurrence of
something more unusual and not
ordinarily found if the service or
treatment rendered followed the
usual procedure of those skilled in
that particular practice. It must be
conceded that the doctrine of res ipsa
loquitur can have no application in a
suit against a physician or a surgeon
which involves the merits of a
diagnosis or of a scientific treatment.
The physician or surgeon is not
required at his peril to explain why
any particular diagnosis was not
correct, or why any particular
scientific treatment did not produce
the desired result.”
Specific Acts of Negligence
We turn to the question whether petitioners have
established specific acts of negligence allegedly
committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and
erroneously relied upon the Widal test, diagnosed
Jorge's illness as typhoid fever, and immediately
prescribed the administration of the antibiotic
chloromycetin; and (2) Dr. Marvie Blanes erred in
ordering the administration of the second dose of 500
milligrams of chloromycetin barely three hours after
the first was given. Petitioners presented the testimony
of Dr. Apolinar Vacalares, Chief Pathologist of the
Northern Mindanao Training Hospital, Cagayan de Oro
City, who performed an autopsy on the body of Jorge
Reyes. Dr. Vacalares testified that, based on his findings
during the autopsy, Jorge Reyes did not die of typhoid
fever but of shock undetermined, which could be due
140
to allergic reaction or chloromycetin overdose. We are
not persuaded.
First. While petitioners presented Dr. Apolinar
Vacalares as an expert witness, we do not find him to
be so as he is not a specialist on infectious diseases like
typhoid fever. Furthermore, although he may have had
extensive experience in performing autopsies, he
admitted that he had yet to do one on the body of a
typhoid victim at the time he conducted the
postmortem on Jorge Reyes. It is also plain from his
testimony that he has treated only about three cases of
typhoid fever. Thus, he testified that:
ATTY. PASCUAL:
Q Why? Have you not testified
earlier that you have never seen
a patient who died of typhoid
fever?
A In autopsy. But, that was when I
was a resident physician yet.
Q But you have not performed an
autopsy of a patient who died of
typhoid fever?
A I have not seen one.
Q And you testified that you have
never seen a patient who died of
typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases
had you seen while you were in
the general practice of medicine?
A In our case we had no widal test
that time so we cannot consider
that the typhoid fever is like this
and like that. And the widal test
does not specify the time of the
typhoid fever.
Q The question is: how many
typhoid fever cases had you seen
in your general practice
regardless of the cases now you
practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in
UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico
erred in her diagnosis. Both lower courts were therefore
correct in discarding his testimony, which is really
inadmissible.
In Ramos, the defendants presented the testimony of a
pulmonologist to prove that brain injury was due to
oxygen deprivation after the patient had
bronchospasms triggered by her allergic response to a
drug, and not due to faulty intubation by the
anesthesiologist. As the issue was whether the
intubation was properly performed by an
141
anesthesiologist, we rejected the opinion of the
pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about
anesthesia practice, procedure, and their complications;
nor (2) an allergologist who could properly advance
expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic
and toxic effects of the drug allegedly responsible for
the bronchospasms.
Second. On the other hand, the two doctors presented
by respondents clearly were experts on the subject.
They vouched for the correctness of Dr. Marlyn Rico's
diagnosis. Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and microbiology
and an associate professor at the Southwestern
University College of Medicine and the Gullas College
of Medicine, testified that he has already treated over a
thousand cases of typhoid fever. According to him,
when a case of typhoid fever is suspected, the Widal
test is normally used, and if the 1:320 results of the
Widal test on Jorge Reyes had been presented to him
along with the patient's history, his impression would
also be that the patient was suffering from typhoid
fever. As to the treatment of the disease, he stated that
chloromycetin was the drug of choice. He also
explained that despite the measures taken by
respondent doctors and the intravenous administration
of two doses of chloromycetin, complications of the
disease could not be discounted. His testimony is as
follows:
ATTY. PASCUAL:
Q If with that count with the test of
positive for 1 is to 320, what
treatment if any would be given?
A If those are the findings that
would be presented to me, the
first thing I would consider
would be typhoid fever.
Q And presently what are the
treatments commonly used?
A Drug of choice of
chloramphenical.
Q Doctor, if given the same patient
and after you have administered
chloramphenical about 3 1/2
hours later, the patient
associated with chills,
temperature — 41°C, what could
possibly come to your mind?
A Well, when it is change in the
clinical finding, you have to
think of complication.
Q And what will you consider on
the complication of typhoid?
A One must first understand that
typhoid fever is toxemia. The
problem is complications are
caused by toxins produced by
the bacteria . . . whether you
have suffered complications to
 think of — heart toxic
myocardities; then you can
consider a toxic meningitis and
other complications and
perforations and bleeding in the
ilium.
Q Even that 40-year old married
patient who received medication
of chloromycetin of 500
milligrams intravenous, after the
skin test, and received a second
dose of chloromycetin of 500
milligrams, 3 hours later, the
patient developed chills . . . rise
in temperature to 41°C, and then
about 40 minutes later the
temperature rose to 100°F,
cardiac rate of 150 per minute
who appeared to be coherent,
restless, nauseating, with
seizures: what significance could
you attach to these clinical
changes?
A I would then think of toxemia,
which was toxic meningitis and
probably a toxic meningitis
because of the high cardiac rate.
Q Even if the same patient who,
after having given intramuscular
valium, became conscious and
coherent about 20 minutes later,
have seizure and cyanosis and
rolling of eyeballs and vomiting .
. . and death: what significance
would you attach to this
development?
A We are probably dealing with
typhoid to meningitis.
Q In such case, Doctor, what
finding if any could you expect
on the post-mortem
examination?
A No, the finding would be more
on the meninges or covering of
the brain.
Q And in order to see those
changes would it require
opening the skull?
A Yes.
As regards Dr. Vacalares' finding during the autopsy
that the deceased's gastro-intestinal tract was normal,
Dr. Rico explained that, while hyperplasia in the
payer's patches or layers of the small intestines is
present in typhoid fever, the same may not always be
grossly visible and a microscope was needed to see the
texture of the cells.
Respondents also presented the testimony of Dr. Ibarra
T. Panopio who is a member of the Philippine and
American Board of Pathology, an examiner of the
Philippine Board of Pathology, and chief pathologist at
the Metro Cebu Community Hospital, Perpetual Succor
Hospital, and the Andres Soriano Jr. Memorial Medical
Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid
patients, although he did not encourage its use because
a single test would only give a presumption
necessitating that the test be repeated, becoming more
conclusive at the second and third weeks of the disease.
He corroborated Dr. Gotiong's testimony that the
danger with typhoid fever is really the possible
complications which could develop like perforation,
hemorrhage, as well as liver and cerebral
complications. As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no
additional information could be obtained from a higher
ratio. He also agreed with Dr. Gotiong that hyperplasia
in the payer's patches may be microscopic.
Indeed, the standard contemplated is not what is
actually the average merit among all known
practitioners from the best to the worst and from the
most to the least experienced, but the reasonable
average merit among the ordinarily good physicians.
Here, Dr. Marlyn Rico did not depart from the
reasonable standard recommended by the experts as
she in fact observed the due care required under the
circumstances. Though the Widal test is not conclusive,
it remains a standard diagnostic test for typhoid fever
and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the
early death of the patient. The results of the Widal test
and the patient's history of fever with chills for five
days, taken with the fact that typhoid fever was then
prevalent as indicated by the fact that the clinic had
been getting about 15 to 20 typhoid cases a month, were
sufficient to give upon any doctor of reasonable skill
the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the
administration of the drug chloromycetin, the drug of
choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested
with the petitioners. As they failed to present expert
opinion on this, preponderant evidence to support their
contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie
Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of
500 milligrams of chloromycetin at an interval of less
than three hours. Petitioners claim that Jorge Reyes
died of anaphylactic shock 38 or possibly from
overdose as the second dose should have been
administered five to six hours after the first, per
instruction of Dr. Marlyn Rico. As held by the Court of
Appeals, however:
That chloromycetin was likewise a
proper prescription is best
established by medical authority.
Wilson, et. al., in Harrison's Principle
of Internal Medicine, 12th ed. write
142
 that chloramphenicol (which is the
generic of chloromycetin) is the drug
of choice for typhoid fever and that
no drug has yet proven better in
promoting a favorable clinical
response. "Chlorampenicol
(Chloromycetin) is specifically
indicated for bacterial meningitis,
typhoid fever, rickettsial infections,
bacteriodes infections, etc." (PIMS
Annual, 1994, p. 211) The dosage
likewise including the first
administration of five hundred
milligrams (500 mg.) at around nine
o'clock in the evening and the second
dose at around 11:30 the same night
was still within medically acceptable
limits, since the recommended dose
of chloromycetin is one (1) gram
every six (6) hours. (cf. Pediatric Drug
Handbook, 1st Ed., Philippine
Pediatric Society, Committee on
Therapeutics and Toxicology, 1996).
The intravenous route is likewise
correct. (Mansser, O'Nick,
Pharmacology and Therapeutics)
Even if the test was not administered
by the physician-on-duty, the
evidence introduced that it was Dra.
Blanes who interpreted the results
remain uncontroverted. (Decision, pp
16-17) Once more, this Court rejects
any claim of professional negligence
in this regard.
xxx xxx xxx
As regards anaphylactic shock, the
usual way of guarding against it
prior to the administration of a drug,
is the skin test of which, however, it
has been observed: "Skin testing with
haptenic drugs is generally not
reliable. Certain drugs cause
nonspecific histamine release,
producing a weal-and-flare reaction
in normal individuals. Immunologic
activation of mast cells requires a
polyvalent allergen, so a negative
skin test to a univalent haptenic drug
does not rule out anaphylactic
sensitivity to that drug." (Terr,
"Anaphylaxis and Urticaria" in Basic
and Clinical Immunology, p. 349)
What all this means legally is that
even if the deceased suffered from an
anaphylactic shock, this, of itself,
would not yet establish the
negligence of the appellee-physicians
for all that the law requires of them is
that they perform the standard tests
and perform standard procedures.
143
The law cannot require them to
predict every possible reaction to all
drugs administered. The onus
probandi was on the appellants to
establish, before the trial court, that
the appellee-physicians ignored
standard medical procedure,
prescribed and administered
medication with recklessness and
exhibited an absence of the
competence and skills expected of
general practitioners similarly
situated.
Fourth. Petitioners correctly observe that the medical
profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they
assert that since the law imposes upon common carriers
the duty of observing extraordinary diligence in the
vigilance over the goods and for the safety of the
passengers, 40 physicians and surgeons should have
the same duty toward their patients. 41 They also
contend that the Court of Appeals erred when it
allegedly assumed that the level of medical practice is
lower in Iligan City, thereby reducing the standard of
care and degree of diligence required from physicians
and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to
common carriers. The Civil Code provides:
Art. 1733. Common carriers,
from the nature of their business and
for reasons of public policy, are
bound to observe extraordinary
diligence in the vigilance over the
goods and for the safety of the
passengers transported by them,
according to the circumstances of
each case. . . .
The practice of medicine is a profession engaged in only
by qualified individuals. It is a right earned through
years of education, training, and by first obtaining a
license from the state through professional board
examinations. Such license may, at any time and for
cause, be revoked by the government. In addition to
state regulation, the conduct of doctors is also strictly
governed by the Hippocratic Oath, an ancient code of
discipline and ethical rules which doctors have
imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given
these safeguards, there is no need to expressly require
of doctors the observance of "extraordinary" diligence.
As it is now, the practice of medicine is already
conditioned upon the highest degree of diligence. And,
as we have already noted, the standard contemplated
for doctors is simply the reasonable average merit
among ordinarily good physicians. That is reasonable
diligence for doctors or, as the Court of Appeals called
it, the reasonable "skill and competence . . . that a
physician in the same or similar locality . . . should
apply."
WHEREFORE, the instant petition is DENIED and the
decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ.,
concur.
D.M. CONSUNJI, INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. 137873, 20 April 2001, 357 SCRA 249
KAPUNAN, J p:
At around 1:30 p.m., November 2, 1990, Jose Juego, a
construction worker of D.M. Consunji, Inc., fell 14
floors from the Renaissance Tower, Pasig City to his
death.
PO3 Rogelio Villanueva of the Eastern Police District
investigated the tragedy and filed a report dated
November 25, 1990, stating that:
. . . . [The] [v]ictim was rushed to
[the] Rizal Medical Center in Pasig,
Metro Manila where he was
pronounced dead on arrival (DOA)
by the attending physician, Dr. Errol
de Yzo[,] at around 2:15 p.m. of the
same date.
Investigation disclosed that at the given time, date and
place, while victim Jose A. Juego together with Jessie
Jaluag and Delso Destajo [were] performing their work
as carpenter[s] at the elevator core of the 14th floor of
the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8
meters by 2 meters wide with pinulid plywood flooring
and cable wires attached to its four corners and hooked
at the 5 ton chain block, when suddenly, the bolt or pin
which was merely inserted to connect the chain block
with the [p]latform, got loose . . . causing the whole
[p]latform assembly and the victim to fall down to the
basement of the elevator core, Tower D of the building
under construction thereby crushing the victim to
death, save his two (2) companions who luckily jumped
out for safety.
It is thus manifest that Jose A. Juego was crushed to
death when the [p]latform he was then on board and
performing work, fell. And the falling of the [p]latform
was due to the removal or getting loose of the pin
which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety
lock.
On May 9, 1991, Jose Juego's widow, Maria, filed in the
Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceased's employer, D.M.
Consunji, Inc. The employer raised, among other
defenses, the widow's prior availment of the benefits
from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the
widow Maria Juego. Xxx
xxx xxx xxx
On appeal by D.M. Consunji, the Court of Appeals
(CA) affirmed the decision of the RTC in toto.
D.M. Consunji now seeks the reversal of the CA
decision on the following grounds:
xxx xxx xxx
Petitioner maintains that the police report reproduced
above is hearsay and, therefore, inadmissible. The CA
ruled otherwise. It held that said report, being an entry
in official records, is an exception to the hearsay rule.
xxx xxx xxx
In any case, the Court holds that portions of PO3
Villanueva's testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died
as a result of the elevator crash. PO3 Villanueva had
seen Juego's remains at the morgue, 12 making the
latter's death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the
building the day after the incident 13 and saw the
platform for himself. 14 He observed that the platform
was crushed 15 and that it was totally damaged. 16 PO3
Villanueva also required Garcia and Fabro to bring the
chain block to the police headquarters. Upon
inspection, he noticed that the chain was detached from
the lifting machine, without any pin or bolt.
What petitioner takes particular exception to is PO3
Villanueva's testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions, the opinion
of a witness is generally not admissible.
Petitioner's contention, however, loses relevance in the
face of the application of res ipsa loquitur by the CA. The
effect of the doctrine is to warrant a presumption or
inference that the mere fall of the elevator was a result
of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa
loquitur is peculiar to the law of negligence which
recognizes that prima facie negligence may be
established without direct proof and furnishes a
substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in
this wise:
While negligence is not ordinarily
inferred or presumed, and while the
mere happening of an accident or
144
 injury will not generally give rise to
an inference or presumption that it
was due to negligence on defendant's
part, under the doctrine of res ipsa
loquitur, which means, literally, the
thing or transaction speaks for itself,
or in one jurisdiction, that the thing
or instrumentality speaks for itself,
the facts or circumstances
accompanying an injury may be such
as to raise a presumption, or at least
permit an inference of negligence on
the part of the defendant, or some
other person who is charged with
negligence.
. . . where it is shown that the thing or
instrumentality which caused the
injury complained of was under the
control or management of the
defendant, and that the occurrence
resulting in the injury was such as in
the ordinary course of things would
not happen if those who had its
control or management used proper
care, there is sufficient evidence, or,
as sometimes stated, reasonable
evidence, in the absence of
explanation by the defendant, that
the injury arose from or was caused
by the defendant's want of care.
One of the theoretical bases for the doctrine is its
necessity, i.e., that necessary evidence is absent or not
available.
“The res ipsa loquitur doctrine is based
in part upon the theory that the
defendant in charge of the
instrumentality which causes the
injury either knows the cause of the
accident or has the best opportunity
of ascertaining it and that the plaintiff
has no such knowledge, and
therefore is compelled to allege
negligence in general terms and to
rely upon the proof of the happening
of the accident in order to establish
negligence. The inference which the
doctrine permits is grounded upon
the fact that the chief evidence of the
true cause, whether culpable or
innocent, is practically accessible to
the defendant but inaccessible to the
injured person.
It has been said that the doctrine of
res ipsa loquitur furnishes a bridge by
which a plaintiff, without knowledge
of the cause, reaches over to
defendant who knows or should
know the cause, for any explanation
145
of care exercised by the defendant in
respect of the matter of which the
plaintiff complains. The res ipsa
loquitur doctrine, another court has
said, is a rule of necessity, in that it
proceeds on the theory that under the
peculiar circumstances in which the
doctrine is applicable, it is within the
power of the defendant to show that
there was no negligence on his part,
and direct proof of defendant's
negligence is beyond plaintiff's
power. Accordingly, some courts add
to the three prerequisites for the
application of the res ipsa loquitur
doctrine the further requirement that
for the res ipsa loquitur doctrine to
apply, it must appear that the injured
party had no knowledge or means of
knowledge as to the cause of the
accident, or that the party to be
charged with negligence has superior
knowledge or opportunity for
explanation of the accident.”
The CA held that all the requisites of res ipsa loquitur are
present in the case at bar:
“There is no dispute that appellee's
husband fell down from the 14th
floor of a building to the basement
while he was working with
appellant's construction project,
resulting to his death. The
construction site is within the
exclusive control and management of
appellant. It has a safety engineer, a
project superintendent, a carpenter
leadman and others who are in
complete control of the situation
therein. The circumstances of any
accident that would occur therein are
peculiarly within the knowledge of
the appellant or its employees. On the
other hand, the appellee is not in a
position to know what caused the
accident. Res ipsa loquitur is a rule of
necessity and it applies where
evidence is absent or not readily
available, provided the following
requisites are present: (1) the accident
was of a kind which does not
ordinarily occur unless someone is
negligent; (2) the instrumentality or
agency which caused the injury was
under the exclusive control of the
person charged with negligence; and
(3) the injury suffered must not have
been due to any voluntary action or
contribution on the part of the person
injured. . . . .
 No worker is going to fall from the
14th floor of a building to the
basement while performing work in a
construction site unless someone is
negligent[;] thus, the first requisite for
the application of the rule of res ipsa
loquitur is present. As explained
earlier, the construction site with all
its paraphernalia and human
resources that likely caused the injury
is under the exclusive control and
management of appellant[;] thus[,]
the second requisite is also present.
No contributory negligence was
attributed to the appellee's deceased
husband[;] thus[,] the last requisite is
also present. All the requisites for the
application of the rule of res ipsa
loquitur are present, thus a reasonable
presumption or inference of
appellant's negligence arises. . . .”
Petitioner does not dispute the existence of the
requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was
negligent did not arise since it "proved that it exercised
due care to avoid the accident which befell respondent's
husband."
Petitioner apparently misapprehends the procedural
effect of the doctrine. As stated earlier, the defendant's
negligence is presumed or inferred when the plaintiff
establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case
of all the elements, the burden then shifts to defendant
to explain. The presumption or inference may be
rebutted or overcome by other evidence and, under
appropriate circumstances a disputable presumption,
such as that of due care or innocence, may outweigh the
inference. It is not for the defendant to explain or prove
its defense to prevent the presumption or inference
from arising. Evidence by the defendant of say, due
care, comes into play only after the circumstances for
the application of the doctrine has been established.
In any case, petitioner cites the sworn statement of its
leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to
Fabro's sworn statement, the company enacted rules
and regulations for the safety and security of its
workers. Moreover, the leadman and the bodegero
inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabro's sworn
statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the
part of petitioner's employees, also assails the same
statement for being hearsay.
Petitioner is correct. Fabro's sworn statement is hearsay
and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is
placed on the witness stand to testify thereon. The
inadmissibility of this sort of evidence is based not only
on the lack of opportunity on the part of the adverse
party to cross-examine the affiant, but also on the
commonly known fact that, generally, an affidavit is not
prepared by the affiant himself but by another who
uses his own language in writing the affiant's
statements which may either be omitted or
misunderstood by the one writing them. Petitioner,
therefore, cannot use said statement as proof of its due
care any more than private respondent can use it to
prove the cause of her husband's death. Regrettably,
petitioner does not cite any other evidence to rebut the
inference or presumption of negligence arising from the
application of res ipsa loquitur, or to establish any
defense relating to the incident.
xxx xxx xxx
WHEREFORE, the case is REMANDED to the Regional
Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the
ECC. Should the award decreed by the trial court be
greater than that awarded by the ECC, payments
already made to private respondent pursuant to the
Labor Code shall be deducted therefrom. In all other
respects, the Decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ.,
concur.
PERLA COMPANIA DE SEGUROS, INC., ET AL.
vs. SARANGAYA, ET AL.
G.R. No. 147746. October 25, 2005, 474 SCRA 191
CORONA, J p:
This is an appeal by certiorari under Rule 45 of the 1997
Rules of Civil Procedure seeking to annul the decisions
of the Court of Appeals (CA) dated June 29, 2000 and
March 31, 2001, respectively, which affirmed the
decision of the Regional Trial Court (RTC), Branch 21 of
Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III
and Primitiva Sarangaya erected a semi-concrete, semi-
narra, one-storey commercial building fronting the
provincial road of Santiago, Isabela. The building was
known as "Super A Building" and was subdivided into
three doors, each of which was leased out. The two-
storey residence of the Sarangayas was behind the
second and third doors of the building. On the left side
of the commercial building stood the office of the
Matsushita Electric Philippine Corporation
(Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc.
(petitioner-corporation), through its branch manager
and co-petitioner Bienvenido Pascual, entered into a
146
contract of lease of the first door of the "Super A
Building," abutting the office of Matsushita. Petitioner-
corporation renovated its rented space and divided it
into two. The left side was converted into an office
while the right was used by Pascual as a garage for a
1981 model 4-door Ford Cortina, a company-provided
vehicle he used in covering the different towns within
his area of supervision.
On July 7, 1988, Pascual left for San Fernando,
Pampanga but did not bring the car with him. Three
days later, he returned to Santiago and, after checking
his appointments the next day, decided to "warm up"
the car. When he pulled up the handbrake and
switched on the ignition key, the engine made an "odd"
sound and did not start. Thinking it was just the
gasoline percolating into the engine, he again stepped
on the accelerator and started the car. This revved the
engine but petitioner again heard an unusual sound. He
then saw a small flame coming out of the engine.
Startled, he turned it off, alighted from the vehicle and
started to push it out of the garage when suddenly, fire
spewed out of its rear compartment and engulfed the
whole garage. Pascual was trapped inside and suffered
burns on his face, legs and arms.
Meanwhile, respondents were busy watching television
when they heard two loud explosions. The smell of
gasoline permeated the air and, in no time, fire spread
inside their house, destroying all their belongings,
furniture and appliances.
The city fire marshall conducted an investigation and
thereafter submitted a report to the provincial fire
marshall. He concluded that the fire was "accidental."
The report also disclosed that petitioner-corporation
had no fire permit as required by law.
Based on the same report, a criminal complaint for
"Reckless Imprudence Resulting to (sic) Damage in (sic)
Property" 1 was filed against petitioner Pascual. On the
other hand, petitioner-corporation was asked to pay the
amount of P7,992,350, inclusive of the value of the
commercial building. At the prosecutor's office,
petitioner Pascual moved for the withdrawal of the
complaint, which was granted.
Respondents later on filed a civil complaint based on
quasi-delict against petitioners for a "sum of money and
damages," alleging that Pascual acted with gross
negligence while petitioner-corporation lacked the
required diligence in the selection and supervision of
Pascual as its employee. xxx
xxx xxx xxx
During the trial, respondents presented witnesses who
testified that a few days before the incident, Pascual
was seen buying gasoline in a container from a nearby
gas station. He then placed the container in the rear
compartment of the car.
147
In his answer, Pascual insisted that the fire was purely
an accident, a caso fortuito, hence, he was not liable for
damages. He also denied putting a container of
gasoline in the car's rear compartment. For its part,
petitioner-corporation refused liability for the accident
on the ground that it exercised due diligence of a good
father of a family in the selection and supervision of
Pascual as its branch manager.
After the trial, the court a quo ruled in favor of
respondents. xxx
xxx xxx xxx
The court a quo declared that, although the respondents
failed to prove the precise cause of the fire that
engulfed the garage, Pascual was nevertheless
negligent based on the doctrine of res ipsa loquitur. It did
not, however, categorically rule that the gasoline
container allegedly placed in the rear compartment of
the car caused the fire. The trial court instead declared
that both petitioners failed to adduce sufficient
evidence to prove that they employed the necessary
care and diligence in the upkeep of the car. Contrary
to the claims of petitioner-corporation, the trial court
also found that it failed to employ the diligence of a
good father of a family, as required by law, in the
selection and supervision of Pascual.
xxx xxx xxx
On appeal to the Court of Appeals, the appellate court
again ruled in favor of respondents but modified the
amount of damages awarded by the trial court. It held:
xxx xxx xxx
Via this petition, petitioners ascribe the following errors
to the appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING
THE DOCTRINE OF ["RES IPSA LOQUITUR"] IN
THE PRESENT CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT
FOUND PERLA NEGLIGENT IN THE
SUPERVISION OF PASCUAL, AND
CONSEQUENTLY, VICARIOUSLY LIABLE FOR
THE FIRE BECAUSE PERLA FAILED TO
ADDUCE EVIDENCE OF SUPERVISION OF
EMPLOYEE'S CARE AND UPKEEP OF
COMPANY VEHICLES REQUIRED BY THE
SUPREME COURT ON TRANSPORTATION
COMPANIES; AND xxx
xxx xxx xxx
Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself." It relates
to the fact of an injury that sets out an inference to the
cause thereof or establishes the plaintiff's prima facie
case. The doctrine rests on inference and not on
presumption. The facts of the occurrence warrant the
supposition of negligence and they furnish
circumstantial evidence of negligence when direct
evidence is lacking.
The doctrine is based on the theory that the defendant
either knows the cause of the accident or has the best
opportunity of ascertaining it and the plaintiff, having
no knowledge thereof, is compelled to allege negligence
in general terms. In such instance, the plaintiff relies on
proof of the happening of the accident alone to establish
negligence.
The doctrine provides a means by which a plaintiff can
pin liability on a defendant who, if innocent, should be
able to explain the care he exercised to prevent the
incident complained of. Thus, it is the defendant's
responsibility to show that there was no negligence on
his part.
To sustain the allegation of negligence based on the
doctrine of res ipsa loquitur, the following requisites
must concur:
1) the accident is of a kind which does not ordinarily
occur unless someone is negligent;
2) the cause of the injury was under the exclusive
control of the person in charge and
3) the injury suffered must not have been due to any
voluntary action or contribution on the part of the
person injured.
Under the first requisite, the occurrence must be one
that does not ordinarily occur unless there is
negligence. "Ordinary" refers to the usual course of
events. Flames spewing out of a car engine, when it is
switched on, is obviously not a normal event. Neither
does an explosion usually occur when a car engine is
revved. Hence, in this case, without any direct evidence
as to the cause of the accident, the doctrine of res ipsa
loquitur comes into play and, from it, we draw the
inference that based on the evidence at hand, someone
was in fact negligent and responsible for the accident.
The test to determine the existence of negligence in a
particular case may be stated as follows: did the
defendant in committing the alleged negligent act, use
reasonable care and caution which an ordinarily
prudent person in the same situation would have
employed? If not, then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car,
failed to submit any proof that he had it periodically
checked (as its year-model and condition required)
revealed his negligence. A prudent man should have
known that a 14-year-old car, constantly used in
provincial trips, was definitely prone to damage and
other defects. For failing to prove care and diligence in
the maintenance of the vehicle, the necessary inference
was that Pascual had been negligent in the upkeep of
the car.
Pascual attempted to exculpate himself from liability by
insisting that the incident was a caso fortuito. We
disagree.
The exempting circumstance of caso fortuito may be
availed only when: (a) the cause of the unforeseen and
unexpected occurrence was independent of the human
will; (b) it was impossible to foresee the event which
constituted the caso fortuito or, if it could be foreseen, it
was impossible to avoid; (c) the occurrence must be
such as to render it impossible to perform an obligation
in a normal manner and (d) the person tasked to
perform the obligation must not have participated in
any course of conduct that aggravated the accident.
In fine, human agency must be entirely excluded as the
proximate cause or contributory cause of the injury or
loss. In a vehicular accident, for example, a mechanical
defect will not release the defendant from liability if it is
shown that the accident could have been prevented had
he properly maintained and taken good care of the
vehicle.
The circumstances on record do not support the defense
of Pascual. Clearly, there was no caso fortuito because of
his want of care and prudence in maintaining the car.
Under the second requisite, the instrumentality or
agency that triggered the occurrence must be one that
falls under the exclusive control of the person in charge
thereof. In this case, the car where the fire originated
was under the control of Pascual. Being its caretaker, he
alone had the responsibility to maintain it and ensure
its proper functioning. No other person, not even the
respondents, was charged with that obligation except
him.
Where the circumstances which caused the accident are
shown to have been under the management or control
of a certain person and, in the normal course of events,
the incident would not have happened had that person
used proper care, the inference is that it occurred
because of lack of such care. The burden of evidence is
thus shifted to defendant to establish that he observed
all that was necessary to prevent the accident from
happening. In this aspect, Pascual utterly failed.
Under the third requisite, there is nothing in the records
to show that respondents contributed to the incident.
They had no access to the car and had no responsibility
regarding its maintenance even if it was parked in a
building they owned.
On the second assigned error, we find no reason to
reverse the decision of the Court of Appeals. The
relationship between the two petitioners was based on
the principle of pater familias according to which the
employer becomes liable to the party aggrieved by its
employee if he fails to prove due diligence of a good
father of a family in the selection and supervision of his
employees. The burden of proof that such diligence was
observed devolves on the employer who formulated
148
the rules and procedures for the selection and hiring of
his employees.
In the selection of prospective employees, employers
are required to examine them as to their qualifications,
experience and service records. While the petitioner-
corporation does not appear to have erred in
considering Pascual for his position, its lack of
supervision over him made it jointly and solidarily
liable for the fire.
In the supervision of employees, the employer must
formulate standard operating procedures, monitor their
implementation and impose disciplinary measures for
the breach thereof. To fend off vicarious liability,
employers must submit concrete proof, including
documentary evidence, that they complied with
everything that was incumbent on them. Here,
petitioner-corporation's evidence hardly included any
rule or regulation that Pascual should have observed in
performing his functions. It also did not have any
guidelines for the maintenance and upkeep of company
property like the vehicle that caught fire. Petitioner-
corporation did not require periodic reports on or
inventories of its properties either. Based on these
circumstances, petitioner-corporation clearly did not
exert effort to be apprised of the condition of Pascual's
car or its serviceability.
Petitioner-corporation's argument that the liability
attached to employers only applies in cases involving
the supervision of employees in the transportation
business is incorrect. Article 2180 of the Civil Code
states that employers shall be liable for the damage
caused by their employees. The liability is imposed on
all those who by their industry, profession or other
enterprise have other persons in their service or
supervision. Nowhere does it state that the liability is
limited to employers in the transportation business.
WHEREFORE, the petition is hereby DENIED and the
decision 29 of the Court of Appeals affirmed in toto.
Costs against petitioners.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Carpio-Morales and
Garcia, JJ., concur.
MACALINAO vs. ONG, ET AL.
G.R. No. 146635, 14 December 2005, 477 SCRA 740
TINGA, J p:
Before this Court is a Petition for Review on Certiorari
assailing the Decision and Resolution of the Court of
Appeals dated 31 May 2000 and 7 September 2000,
respectively, in CA-G.R. CV No. 52963. The Court of
Appeals reversed the judgment of the trial court and
dismissed the complaint for damages filed by Marcelo
Macalinao (Macalinao) against Eddie Medecielo Ong
149
(Ong) and Genovevo Sebastian (Sebastian) for
insufficiency of evidence.
The antecedent facts follow.
Macalinao and Ong were employed as utility man and
driver, respectively, at the Genetron International
Marketing (Genetron), a single proprietorship owned
and operated by Sebastian. On 25 April 1992, Sebastian
instructed Macalinao, Ong and two truck helpers to
deliver a heavy piece of machinery — a reactor/motor
for mixing chemicals, to Sebastian's manufacturing
plant in Angat, Bulacan. While in the process of
complying with the order, the vehicle driven by Ong,
Genetron's Isuzu Elf truck with plate no. PMP-106 hit
and bumped the front portion of a private jeepney with
plate no. DAF-922 along Caypombo, Sta. Maria,
Bulacan at around 11:20 in the morning.
Both vehicles incurred severe damages while the
passengers sustained physical injuries as a consequence
of the collision. 4 Macalinao incurred the most serious
injuries among the passengers of the truck. He was
initially brought to the Sta. Maria District Hospital for
first aid treatment but in view of the severity of his
condition, he was transferred to the Philippine
Orthopedic Center at the instance of Sebastian. He was
again moved to the Capitol Medical Center by his
parents, petitioners herein, for medical reasons and
later to the Philippine General Hospital for financial
considerations.
Macalinao's body was paralyzed and immobilized from
the neck down as a result of the accident and per
doctor's advice, his foot was amputated. He also
suffered from bed sores and infection. His immedicable
condition, coupled with the doctor's recommendation,
led his family to bring him home where he died on 7
November 1992.
Before he died, Macalinao was able to file an action for
damages against both Ong and Sebastian before the
Regional Trial Court (RTC) of Quezon City, Branch 81.
7 After his death, Macalinao was substituted by his
parents in the action. A criminal case for reckless
imprudence resulting to serious physical injuries 9 had
also been instituted earlier against Ong but for reasons
which do not appear in the records of this case, trial
thereon did not ensue.
After trial in the civil action, the RTC held that based on
the evidence, Ong drove the Isuzu truck in a reckless
and imprudent manner thereby causing the same to hit
the private jeepney. It observed that while respondents
claimed that Ong was driving cautiously and prudently
at the time of the mishap, no evidence was presented to
substantiate the claim. It declared Ong negligent and at
the same time, it held that Sebastian failed to exercise
the diligence of a good father of a family in the selection
and supervision of Ong. Consequently, the trial court
pronounced the two of them jointly liable to pay actual,
moral, and exemplary damages as well as civil
indemnity for Macalinao's death. The trial court
subsequently increased the monetary award upon
petitioners' motion for reconsideration thereof.
On appeal, the appellate court reversed the findings of
the trial court. It held that the evidence presented by
petitioners was woefully scant to support a verdict of
negligence against Ong. And since respondents'
liability hinged squarely on proof of Ong's negligence,
neither of them could be held liable for damages to
petitioners.
Aggrieved at the ruling, petitioners elevated the case to
this Court. They herein contend that contrary to the
conclusion reached by the Court of Appeals, the
evidence conclusively establish fault or negligence on
the part of Ong and justify the award of damages in
their favor.
The petition is meritorious.
The issue of negligence is factual and, in quasi-delicts,
crucial in the award of damages. In the case at bar, the
crux of the controversy is the sufficiency of the
evidence presented to support a finding of negligence
against Ong. Given the contradictory conclusions of the
trial court and the appellate court on this issue, this
Court is impelled to ascertain for itself which court
made the correct determination.
xxx xxx xxx
In reversing the trial court and absolving respondents
from liability, the appellate court made the following
pronouncement:
The evidence presented is woefully
scant. The pictures of the collision
afford no basis for concluding that it
was the fault of the defendant driver,
or that he was driving recklessly. The
police report contains no findings as
to the road conditions, estimates of
the relative speed of the vehicles, or
their exact position at the time of the
accident. And even so, entries in the
police blotter should not be given
significance or probative value as
they do not constitute conclusive
proof of the truth thereof. Nor were
eyewitnesses presented, not even
affidavits or statements to give any
indication as to what actually
happened. The police investigator's
findings are sketchy at best, with only
the phrase "Isuzu lost control" as his
opinion, with no explanation how he
reached it. Civil cases require
evidence of a lesser degree than
criminal cases, but one sentence by
one who did not even witness an
event, is not conclusive proof.
xxx xxx xxx
There was only the fact of the
collision before the trial court. The
attendant circumstances were not
established, and no fault could be
determined using the evidence, both
testimonial and documentary
presented.
Contrary to the above conclusion of the appellate court,
the evidence on record coupled with the doctrine of res
ipsa loquitur sufficiently establishes Ong's negligence.
We focus first on the evidence presented before the trial
court.
The photographs of the accident which the appellate
court cavalierly brushed aside as insignificant deserve
substantial cogitation. In Jose v. Court of Appeals, we
upheld the trial court's reliance on photographs of the
accident as opposed to a party's obviously biased
testimony. In so doing, we stated:
“In criminal cases such as murder or
rape where the accused stands to lose
his liberty if found guilty, this Court
has, in many occasions, relied
principally upon physical evidence in
ascertaining the truth. In People v.
Vasquez, where the physical evidence
on record ran counter to the
testimonial evidence of the
prosecution witnesses, we ruled that
the physical evidence should
prevail.”
Physical evidence is a mute but an eloquent
manifestation of truth which ranks high in our
hierarchy of trustworthy evidence.
In this case, while there is a dearth of testimonial
evidence to enlighten us about what actually happened,
photographs depicting the relative positions of the
vehicles immediately after the accident took place do
exist. It is well established that photographs, when duly
verified and shown by extrinsic evidence to be faithful
representations of the subject as of the time in question,
are, in the discretion of the trial court, admissible in
evidence as aids in arriving at an understanding of the
evidence, the situation or condition of objects or
premises or the circumstances of an accident.
According to American courts, photographs are
admissible in evidence in motor vehicle accident cases
when they appear to have been accurately taken and
are proved to be a faithful and clear representation of
the subject, which cannot itself be produced, and are of
such nature as to throw light upon a disputed point.
Before a photograph may be admitted in evidence,
however, its accuracy or correctness must be proved,
and it must be authenticated or verified first. In the case
150
at bar, the photographer testified in open court and
properly identified the pictures as the ones he took at
the scene of the accident.
An examination of said photographs clearly shows that
the road where the mishap occurred is marked by a line
at the center separating the right from the left lane.
Based on the motorist's right of way rule, the Isuzu
truck which was headed towards Norzagaray, Bulacan
should have been occupying the left lane while the
private jeepney which was traversing the road to the
town proper of Sta. Maria, Bulacan should have been in
the right lane. Exhibits "L" and "L-4" among the
photographs, however, reveal that in the aftermath of
the collision, the Isuzu truck usurped the opposite lane
to such an extent that only its right rear wheel remained
in the left lane, a few inches from the demarcation line.
Its two front wheels and left rear wheel were planted
squarely on the private jeepney's lane and the Isuzu
truck had rotated such that its front no longer pointed
towards Norzagaray but partially faced the town
proper of Sta. Maria instead.
While ending up at the opposite lane is not conclusive
proof of fault in automobile collisions, the position of
the two vehicles gives rise to the conclusion that it was
the Isuzu truck which hit the private jeepney rather
than the other way around. The smashed front of the
Isuzu truck is pressed against the private jeepney's left
front portion near the driver's side. The private jeepney
is positioned diagonally in the right lane; its front at the
rightmost corner of the road while its rear remained a
few feet from the demarcation line. Based on the angle
at which it stopped, the private jeepney obviously
swerved to the right in an unsuccessful effort to avoid
the Isuzu truck. This would support the statement of
the police investigator that the Isuzu truck lost control
and hit the left front portion of the private jeepney. It
would also explain why the driver of the private
jeepney died immediately after being brought to the
hospital, since in such a scenario, the brunt of the
collision logically bore down on him.
Moreover, the unequal size and weight of the two
vehicles would make it improbable for the relatively
lighter private jeepney to have stricken the heavier
truck with such force as to push the latter to the
former's side of the road. Had that been the case, the
two vehicles would have ended up crushed together at
the center of the road or at the Isuzu truck's lane
instead of rolling to a stop at the private jeepney's lane.
Another piece of evidence which supports a finding of
negligence against Ong is the police report of the
incident denoted as Entry No. 04-229 of the Sta. Maria
Police Station. The report states that the Isuzu truck
was the one which hit the left front portion of the
private jeepney. This piece of evidence was disregarded
by the Court of Appeals on the ground that entries in
police blotters should not be given significance or
probative value as they do not constitute conclusive
proof of the truth thereof.
151
While true in most instances, it must still be
remembered that although police blotters are of little
probative value, they are nevertheless admitted and
considered in the absence of competent evidence to
refute the facts stated therein. Entries in police records
made by a police officer in the performance of the duty
especially enjoined by law are prima facie evidence of
the fact therein stated, and their probative value may be
either substantiated or nullified by other competent
evidence.
In this case, the police blotter was identified and
formally offered as evidence and the person who made
the entries thereon was likewise presented in court. On
the other hand, aside from a blanket allegation that the
driver of the other vehicle was the one at fault,
respondents did not present any evidence to back up
their charge and show that the conclusion of the police
investigator was false. Given the paucity of details in
the report, the investigator's observation could have
been easily refuted and overturned by respondents
through the simple expedient of supplying the missing
facts and showing to the satisfaction of the court that
the Isuzu truck was blameless in the incident. Ong was
driving the truck while the two other truck helpers also
survived the accident. Any or all of them could have
given their testimony to shed light on what actually
transpired, yet not one of them was presented to
substantiate the claim that Ong was not negligent.
Since respondents failed to refute the contents of the
police blotter, the statement therein that the Isuzu truck
hit the private jeepney and not the other way around is
deemed established. The prima facie nature of the
police report ensures that if it remains unexplained or
uncontradicted, it will be sufficient to establish the facts
posited therein.
While not constituting direct proof of Ong's negligence,
the foregoing pieces of evidence justify the application
of res ipsa loquitur, a Latin phrase which literally means
"the thing or the transaction speaks for itself."
Res ipsa loquitur recognizes that parties may establish
prima facie negligence without direct proof, thus, it
allows the principle to substitute for specific proof of
negligence. It permits the plaintiff to present along with
proof of the accident, enough of the attending
circumstances to invoke the doctrine, create an
inference or presumption of negligence and thereby
place on the defendant the burden of proving that there
was no negligence on his part.
The doctrine can be invoked only when under the
circumstances, direct evidence is absent and not readily
available. This is based in part upon the theory that the
defendant in charge of the instrumentality which
causes the injury either knows the cause of the accident
or has the best opportunity of ascertaining it while the
plaintiff has no such knowledge, and is therefore
compelled to allege negligence in general terms and
rely upon the proof of the happening of the accident in
order to establish negligence. The inference which the
doctrine permits is grounded upon the fact that the
chief evidence of the true cause, whether culpable or
innocent, is practically accessible to the defendant but
inaccessible to the injured person.
In this case, Macalinao could no longer testify as to the
cause of the accident since he is dead. Petitioners, while
substituting their son as plaintiff, have no actual
knowledge about the event since they were not present
at the crucial moment. The driver of the private jeepney
who could have shed light on the circumstances is
likewise dead. The only ones left with knowledge about
the cause of the mishap are the two truck helpers who
survived, both employees of Sebastian, and Ong, who is
not only Sebastian's previous employee but his co-
respondent in this case as well. In the circumstances,
evidence as to the true cause of the accident is, for all
intents and purposes, accessible to respondents but not
to petitioners. The witnesses left are unlikely to divulge
to petitioners what they knew about the cause of the
accident if the same militates against the interest of
their employer. This justifies the invocation of the
doctrine.
Under local jurisprudence, the following are the
requisites for the application of res ipsa loquitur:
(1) The accident is of a kind which ordinarily does not
occur in the absence of someone's negligence;
(2) It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
(3) The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.
We are convinced that all the above requisites are
present in the case at bar.
No two motor vehicles traversing opposite lanes will
collide as a matter of course unless someone is
negligent, thus, the first requisite for the application of
the doctrine is present. Ong was driving the Isuzu truck
which, from the evidence adduced, appears to have
precipitated the collision with the private jeepney.
Driving the Isuzu truck gave Ong exclusive
management and control over it, a fact which shows
that the second requisite is also present. No
contributory negligence could be attributed to
Macalinao relative to the happening of the accident
since he was merely a passenger in the Isuzu truck.
Respondents' allegation that Macalinao was guilty of
contributory negligence for failing to take the necessary
precautions to ensure his safety while onboard the
truck is too specious for belief particularly as
respondents did not even present any evidence to
prove such allegation. The last requisite is, therefore,
likewise present.
There exists a fourth requisite under American
jurisprudence, that is, that the defendant fails to offer
any explanation tending to show that the injury was
caused by his or her want of due care. In this case,
while respondents claimed that Ong drove cautiously
and prudently during the time in question, no evidence
was proffered to substantiate the same. In fact, Ong did
not bother to testify to explain his actuations and to
show that he exercised due care when the accident
happened, so even this requisite is fulfilled.
All the requisites for the application of the rule of res
ipsa loquitur are present, thus a reasonable presumption
or inference of Ong's negligence arises. In consonance
with the effect of the doctrine, the burden of proving
due care at the time in question shifts to respondents.
Unfortunately, as previously discussed, aside from
blanket allegations that Ong exercised prudence and
due care while driving on the day of the accident,
respondents proffered no other proof. As a
consequence, the prima facie finding of negligence
against Ong, remaining unexplained and/or
uncontradicted, is deemed established. This in turn
warrants a finding that Ong is liable for damages to
petitioners.
Such liability of Ong is solidary with Sebastian
pursuant to Art. 2176 in relation to Art. 2180 of the Civil
Code which provide:
Art. 2176. Whoever by act or
omission causes damage to another,
there being fault or negligence is
obliged to pay for the damage done . .
..
Art. 2180. The obligation imposed by
Art. 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
damage 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.
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.
Whenever an employee's negligence causes damage or
injury to another, there instantly arises a presumption
juris tantum that the employer failed to exercise
diligentissimi patris families in the selection (culpa in
eligiendo) or supervision (culpa in vigilando) of its
152
employees. 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.
In an attempt to exculpate himself from liability,
Sebastian claimed that he exercised due care in
selecting Ong as a driver. Before he hired Ong, he
allegedly required him to produce police and NBI
clearances and he took into account the
recommendations of Ong's previous employer and
friends. Sebastian also stressed that he instructed Ong
to drive slowly and carefully and to take necessary
precautions. He likewise admonished Ong to be careful
after the latter had some minor accidents in the parking
area.
However, Sebastian's statements are not sufficient to
prove that he exercised the diligence of a good father of
a family in the selection of Ong. His testimony is self-
serving and devoid of corroboration as he did not
bother to support the same with document evidence.
Moreover, Sebastian could not even remember whether
the recommendation from Ong's previous employer
was made verbally or in writing.
On the other hand, due diligence in supervision
requires the formulation of rules and regulations for the
guidance of employees and the issuance of proper
instructions as well as actual implementation and
monitoring of consistent compliance with the rules. 51
Admonitions to drive carefully without the
corresponding guidelines and monitoring of the
employee do not satisfy the due diligence required by
law either.
In short, Sebastian's claims fall short of what is required
by law to overcome the presumption of negligence in
the selection and supervision of his employee. The trial
court therefore correctly held him solidarily liable with
Ong to petitioners.
In an obvious ploy to relieve himself from liability
should the appellate court's decision be reversed,
Sebastian averred that Macalinao is not entitled to
damages. He anchored his claim on the novel argument
that the provisions of Art. 2180 apply only when the
injured party is a third person but it has no application
to an employee like Macalinao. He likewise postulated
that recovery from the Social Security System, State
Insurance Fund, Employee's Compensation
Commission, and the Philippine Medical Care Act, the
government agencies with which petitioners filed a
claim in view of Macalinao's injury and subsequent
death, preclude pursuing alternate recourse or
recovering from other sources until the former claims
have been rejected.
Sebastian is grasping at straws. Art. 2180 makes no
distinction whatsoever whether the claimant is an
153
employee or a third person relative to the employer.
Ubi lex non distinguit nec nos distinguere debemos. Where
the law does not distinguish, neither should we.
Moreover, petitioner's claim against Sebastian is not
based upon the fact of Macalinao's previous
employment with him but on the solidary liability of
the latter for the negligent act of one of his employees.
Such is not precluded by prior claims with the
government agencies enumerated. One is based on
compulsory coverage of government benefits while the
other is based on a cause of action provided by law.
xxx xxx xxx
WHEREFORE, the petition is GRANTED. The Decision
of the Court of Appeals dated 31 May 2000, as well as
its Resolution dated 7 September 2000, are hereby SET
ASIDE. The Decision of the Regional Trial Court of
Quezon City, Branch 81 dated 12 April 1996 as
amended by the Order dated 23 May 1996 is hereby
REINSTATED with the modifications that the award
for moral damages is increased to P50,000.00 to
conform with prevailing jurisprudence and the award
for exemplary damages is increased to P25,000.00. Costs
against respondents.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario,
JJ., concur.
CAPILI vs. CARDAÑA, ET AL.
G.R. No. 157906, 2 November 2006, 506 SCRA 569
QUISUMBING, J p:
Before us is a petition for review assailing the Decision
1 dated October 18, 2002 of the Court of Appeals in CA-
G.R. CV. No. 54412, declaring petitioner liable for
negligence that resulted in the death of Jasmin Cardaña,
a school child aged 12, enrolled in Grade 6, of San
Roque Elementary School, where petitioner is the
principal. Likewise assailed is the Resolution 2 dated
March 20, 2003 denying reconsideration.
The facts are as follows:
On February 1, 1993, Jasmin Cardaña was walking
along the perimeter fence of the San Roque Elementary
School when a branch of a caimito tree located within
the school premises fell on her, causing her
instantaneous death. Thus, her parents — Dominador
and Rosalita Cardaña — filed a case for damages before
the Regional Trial Court of Palo, Leyte against
petitioner.
The Cardañas alleged in their complaint that even as
early as December 15, 1992, a resident of the barangay,
Eufronio Lerios, reported on the possible danger the
tree posed to passersby. Lerios even pointed to the
petitioner the tree that stood near the principal's office.
The Cardañas averred that petitioner's gross negligence
and lack of foresight caused the death of their daughter.
Petitioner denied the accusation and said that at that
time Lerios had only offered to buy the tree. She also
denied knowing that the tree was dead and rotting. To
prove her point, she presented witnesses who attested
that she had brought up the offer of Lerios to the other
teachers during a meeting on December 15, 1992 and
assigned Remedios Palaña to negotiate the sale.
In a Decision 3 dated February 5, 1996, the trial court
dismissed the complaint for failure of the respondents
to establish negligence on the part of the petitioner.
On appeal, the Court of Appeals reversed the trial
court's decision. The appellate court found the appellee
(herein petitioner) liable for Jasmin's death, as follows:
xxx xxx xxx
Primarily, the issue is whether petitioner is negligent
and liable for the death of Jasmin Cardaña.
Petitioner asserts that she was not negligent about the
disposal of the tree since she had assigned her next-in-
rank, Palaña, to see to its disposal; that despite her
physical inspection of the school grounds, she did not
observe any indication that the tree was already rotten
nor did any of her teachers inform her that the tree was
already rotten; and that moral damages should not be
granted against her since there was no fraud nor bad
faith on her part.
On the other hand, respondents insist that petitioner
knew that the tree was dead and rotting, yet, she did
not exercise reasonable care and caution which an
ordinary prudent person would have done in the same
situation.
To begin, we have to point out that whether petitioner
was negligent or not is a question of fact which is
generally not proper in a petition for review, and when
this determination is supported by substantial
evidence, it becomes conclusive and binding on this
Court. However, there is an exception, that is, when the
findings of the Court of Appeals are incongruent with
the findings of the lower court. In our view, the
exception finds application in the present case.
The trial court gave credence to the claim of petitioner
that she had no knowledge that the tree was already
dead and rotting and that Lerios merely informed her
that he was going to buy the tree for firewood. It ruled
that petitioner exercised the degree of care and
vigilance which the circumstances require and that
there was an absence of evidence that would require
her to use a higher standard of care more than that
required by the attendant circumstances. The Court of
Appeals, on the other hand, ruled that petitioner should
have known of the condition of the tree by its mere
sighting and that no matter how hectic her schedule
was, she should have had the tree removed and not
merely delegated the task to Palaña. The appellate court
ruled that the dead caimito tree was a nuisance that
should have been removed soon after petitioner had
chanced upon it.
A negligent act is an inadvertent act; it may be merely
carelessly done from a lack of ordinary prudence and
may be one which creates a situation involving an
unreasonable risk to another because of the expectable
action of the other, a third person, an animal, or a force
of nature. A negligent act is one from which an
ordinary prudent person in the actor's position, in the
same or similar circumstances, would foresee such an
appreciable risk of harm to others as to cause him not to
do the act or to do it in a more careful manner.
The probability that the branches of a dead and rotting
tree could fall and harm someone is clearly a danger
that is foreseeable. As the school principal, petitioner
was tasked to see to the maintenance of the school
grounds and safety of the children within the school
and its premises. That she was unaware of the rotten
state of a tree whose falling branch had caused the
death of a child speaks ill of her discharge of the
responsibility of her position.
In every tort case filed under Article 2176 of the Civil
Code, plaintiff has to prove by a preponderance of
evidence: (1) the damages suffered by the plaintiff; (2)
the fault or negligence of the defendant or some other
person for whose act he must respond; and (3) the
connection of cause and effect between the fault or
negligence and the damages incurred.
The fact, however, that respondents' daughter, Jasmin,
died as a result of the dead and rotting tree within the
school's premises shows that the tree was indeed an
obvious danger to anyone passing by and calls for
application of the principle of res ipsa loquitur.
The doctrine of res ipsa loquitur applies where (1) the
accident was of such character as to warrant an
inference that it would not have happened except for
the defendant's negligence; (2) the accident must have
been caused by an agency or instrumentality within the
exclusive management or control of the person charged
with the negligence complained of; and (3) the accident
must not have been due to any voluntary action or
contribution on the part of the person injured.
The effect of the doctrine of res ipsa loquitur is to
warrant a presumption or inference that the mere
falling of the branch of the dead and rotting tree which
caused the death of respondents' daughter was a result
of petitioner's negligence, being in charge of the school.
In the case of D.M. Consunji, Inc. v. Court of Appeals, this
Court held:
“. . . As a rule of evidence, the
doctrine of res ipsa loquitur is peculiar
154
 to the law of negligence which
recognizes that prima facie
negligence may be established
without direct proof and furnishes a
substitute for specific proof of
negligence.
The concept of res ipsa loquitur has
been explained in this wise:
While negligence is not
ordinarily inferred or presumed,
and while the mere happening
of an accident or injury will not
generally give rise to an
inference or presumption that it
was due to negligence on
defendant's part, under the
doctrine of res ipsa loquitur,
which means, literally, the thing
or transaction speaks for itself,
or in one jurisdiction, that the
thing or instrumentality speaks
for itself, the facts or
circumstances accompanying an
injury may be such as to raise a
presumption, or at least permit
an inference of negligence on the
part of the defendant, or some
other person who is charged
with negligence.
. . . where it is shown that the
thing or instrumentality which
caused the injury complained of
was under the control or
management of the defendant,
and that the occurrence
resulting in the injury was such
as in the ordinary course of
things would not happen if
those who had its control or
management used proper care,
there is sufficient evidence, or,
as sometimes stated, reasonable
evidence, in the absence of
explanation by the defendant,
that the injury arose from or was
caused by the defendant's want
of care.”
The procedural effect of the doctrine of res ipsa loquitur
is that petitioner's negligence is presumed once
respondents established the requisites for the doctrine
to apply. Once respondents made out a prima facie case
of all requisites, the burden shifts to petitioner to
explain. The presumption or inference may be rebutted
or overcome by other evidence and, under appropriate
circumstances a disputable presumption, such as that of
due care or innocence, may outweigh the inference.
155
Was petitioner's explanation as to why she failed to
have the tree removed immediately sufficient to
exculpate her?
As the school principal, petitioner was tasked to see to
the maintenance of the school grounds and safety of the
children within the school and its premises. That she
was unaware of the rotten state of the tree calls for an
explanation on her part as to why she failed to be
vigilant.
Petitioner contends she was unaware of the state of the
dead and rotting tree because Lerios merely offered to
buy the tree and did not inform her of its condition.
Neither did any of her teachers inform her that the tree
was an imminent danger to anyone. She argues that she
could not see the immediate danger posed by the tree
by its mere sighting even as she and the other teachers
conducted ground inspections. She further argues that,
even if she should have been aware of the danger, she
exercised her duty by assigning the disposition of the
tree to another teacher.
We find petitioner's explanation wanting. As school
principal, petitioner is expected to oversee the safety of
the school's premises. The fact that she failed to see the
immediate danger posed by the dead and rotting tree
shows she failed to exercise the responsibility
demanded by her position.
Moreover, even if petitioner had assigned disposal of
the tree to another teacher, she exercises supervision
over her assignee. The record shows that more than a
month had lapsed from the time petitioner gave
instruction to her assistant Palaña on December 15,
1992, to the time the incident occurred on February 1,
1993. Clearly, she failed to check seasonably if the
danger posed by the rotting tree had been removed.
Thus, we cannot accept her defense of lack of
negligence.
Lastly, petitioner questions the award of moral
damages. Moral damages are awarded if the following
elements exist in the case: (1) an injury clearly sustained
by the claimant; (2) a culpable act or omission factually
established; (3) a wrongful act or omission by the
defendant as the proximate cause of the injury
sustained by the claimant; and (4) the award of
damages predicated on any of the cases stated in Article
2219 of the Civil Code. However, the person claiming
moral damages must prove the existence of bad faith by
clear and convincing evidence for the law always
presumes good faith. It is not enough that one merely
suffered sleepless nights, mental anguish, and serious
anxiety as the result of the actuations of the other party.
Invariably, such action must be shown to have been
willfully done in bad faith or with ill motive. 19 Under
the circumstances, we have to concede that petitioner
was not motivated by bad faith or ill motive vis-à-vis
respondents' daughter's death. The award of moral
damages is therefore not proper.
In line with applicable jurisprudence, we sustain the
award by the Court of Appeals of P50,000 as indemnity
for the death of Jasmin, 20 and P15,010 as
reimbursement of her burial expenses.
WHEREFORE, the petition is DENIED. The Decision
dated October 18, 2002 and the Resolution dated March
20, 2003, of the Court of Appeals in CA-G.R. CV. No.
54412 are AFFIRMED with MODIFICATION such that
the award of moral damages is hereby deleted.
Costs against petitioner.
SO ORDERED.
Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.
Tinga, J., is on leave.
CANTRE vs. GO, ET AL.
G.R. No. 160889, 27 April 2007.
QUISUMBING, J p:
For review on certiorari are the Decision dated October
3, 2002 and Resolution dated November 19, 2003 of the
Court of Appeals in CA-G.R. CV No. 58184, which
affirmed with modification the Decision 3 dated March
3, 1997 of the Regional Trial Court of Quezon City,
Branch 98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in
Obstetrics and Gynecology at the Dr. Jesus Delgado
Memorial Hospital. She was the attending physician of
respondent Nora S. Go, who was admitted at the said
hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her
fourth child, a baby boy. However, at around 3:30 a.m.,
Nora suffered profuse bleeding inside her womb due to
some parts of the placenta which were not completely
expelled from her womb after delivery. Consequently,
Nora suffered hypovolemic shock, resulting in a drop
in her blood pressure to "40" over "0." Petitioner and the
assisting resident physician performed various medical
procedures to stop the bleeding and to restore Nora's
blood pressure. Her blood pressure was frequently
monitored with the use of a sphygmomanometer.
While petitioner was massaging Nora's uterus for it to
contract and stop bleeding, she ordered a droplight to
warm Nora and her baby. Nora remained unconscious
until she recovered.
While in the recovery room, her husband, respondent
John David Z. Go noticed a fresh gaping wound two
and a half (2 1/2) by three and a half (3 1/2) inches in
the inner portion of her left arm, close to the armpit. He
asked the nurses what caused the injury. He was
informed it was a burn. Forthwith, on April 22, 1992,
John David filed a request for investigation. In
response, Dr. Rainerio S. Abad, the medical director of
the hospital, called petitioner and the assisting resident
physician to explain what happened. Petitioner said the
blood pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the
National Bureau of Investigation for a physical
examination, which was conducted by medico-legal
officer Dr. Floresto Arizala, Jr. The medico-legal officer
later testified that Nora's injury appeared to be a burn
and that a droplight when placed near the skin for
about 10 minutes could cause such burn. He dismissed
the likelihood that the wound was caused by a blood
pressure cuff as the scar was not around the arm, but
just on one side of the arm.
On May 22, 1992, Nora's injury was referred to a plastic
surgeon at the Dr. Jesus Delgado Memorial Hospital for
skin grafting. Her wound was covered with skin
sourced from her abdomen, which consequently bore a
scar as well. About a year after, on April 30, 1993, scar
revision had to be performed at the same hospital. The
surgical operation left a healed linear scar in Nora's left
arm about three inches in length, the thickest portion
rising about one-fourth (1/4) of an inch from the
surface of the skin. The costs of the skin grafting and
the scar revision were shouldered by the hospital.
Unfortunately, Nora's arm would never be the same.
Aside from the unsightly mark, the pain in her left arm
remains. When sleeping, she has to cradle her wounded
arm. Her movements now are also restricted. Her
children cannot play with the left side of her body as
they might accidentally bump the injured arm, which
aches at the slightest touch.
Thus, on June 21, 1993, respondent spouses filed a
complaint for damages against petitioner, Dr. Abad,
and the hospital. Finding in favor of respondent
spouses, the trial court decreed:
xxx xxx xxx
Petitioner, Dr. Abad, and the hospital all appealed to
the Court of Appeals, which affirmed with modification
the trial court decision, thus:
xxx xxx xxx
Simply put, the threshold issues for resolution are: (1)
Are the questioned additional exhibits admissible in
evidence? (2) Is petitioner liable for the injury suffered
by respondent Nora Go? Thereafter, the inquiry is
whether the appellate court committed grave abuse of
discretion in its assailed issuances.
xxx xxx xxx
Coming now to the substantive matter, is petitioner
liable for the injury suffered by respondent Nora Go?
156
The Hippocratic Oath mandates physicians to give
primordial consideration to the well-being of their
patients. If a doctor fails to live up to this precept, he is
accountable for his acts. This notwithstanding, courts
face a unique restraint in adjudicating medical
negligence cases because physicians are not guarantors
of care and, they never set out to intentionally cause
injury to their patients. However, intent is immaterial in
negligence cases because where negligence exists and is
proven, it automatically gives the injured a right to
reparation for the damage caused.
In cases involving medical negligence, the doctrine of
res ipsa loquitur allows the mere existence of an injury to
justify a presumption of negligence on the part of the
person who controls the instrument causing the injury,
provided that the following requisites concur:
1. The accident is of a kind which ordinarily does not
occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.
As to the first requirement, the gaping wound on
Nora's arm is certainly not an ordinary occurrence in
the act of delivering a baby, far removed as the arm is
from the organs involved in the process of giving birth.
Such injury could not have happened unless negligence
had set in somewhere.
Second, whether the injury was caused by the droplight
or by the blood pressure cuff is of no moment. Both
instruments are deemed within the exclusive control of
the physician in charge under the "captain of the ship"
doctrine. This doctrine holds the surgeon in charge of
an operation liable for the negligence of his assistants
during the time when those assistants are under the
surgeon's control. In this particular case, it can be
logically inferred that petitioner, the senior consultant
in charge during the delivery of Nora's baby, exercised
control over the assistants assigned to both the use of
the droplight and the taking of Nora's blood pressure.
Hence, the use of the droplight and the blood pressure
cuff is also within petitioner's exclusive control.
Third, the gaping wound on Nora's left arm, by its very
nature and considering her condition, could only be
caused by something external to her and outside her
control as she was unconscious while in hypovolemic
shock. Hence, Nora could not, by any stretch of the
imagination, have contributed to her own injury.
Petitioner's defense that Nora's wound was caused not
by the droplight but by the constant taking of her blood
pressure, even if the latter was necessary given her
condition, does not absolve her from liability. As
testified to by the medico-legal officer, Dr. Arizala, Jr.,
the medical practice is to deflate the blood pressure cuff
immediately after each use. Otherwise, the inflated
157
band can cause injury to the patient similar to what
could have happened in this case. Thus, if Nora's
wound was caused by the blood pressure cuff, then the
taking of Nora's blood pressure must have been done
so negligently as to have inflicted a gaping wound on
her arm, for which petitioner cannot escape liability
under the "captain of the ship" doctrine.
Further, petitioner's argument that the failed plastic
surgery was not intended as a cosmetic procedure, but
rather as a measure to prevent complication does not
help her case. It does not negate negligence on her part.
Based on the foregoing, the presumption that petitioner
was negligent in the exercise of her profession stands
unrebutted. In this connection, 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. .
..
ART. 2217. Moral damages
include physical suffering, mental
anguish, fright, serious anxiety,
besmirched reputation, wounded
feelings, moral shock, social
humiliation, and similar injury.
Though incapable of pecuniary
computation, moral damages may be
recovered if they are the proximate
result of the defendant's wrongful act
or omission.
Clearly, under the law, petitioner is obliged to pay
Nora for moral damages suffered by the latter as a
proximate result of petitioner's negligence.
We note, however, that petitioner has served well as
Nora's obstetrician for her past three successful
deliveries. This is the first time petitioner is being held
liable for damages due to negligence in the practice of
her profession. The fact that petitioner promptly took
care of Nora's wound before infection and other
complications set in is also indicative of petitioner's
good intentions. We also take note of the fact that Nora
was suffering from a critical condition when the injury
happened, such that saving her life became petitioner's
elemental concern. Nonetheless, it should be stressed
that all these could not justify negligence on the part of
petitioner.
Hence, considering the specific circumstances in the
instant case, we find no grave abuse of discretion in the
assailed decision and resolution of the Court of
Appeals. Further, we rule that the Court of Appeals'
award of Two Hundred Thousand Pesos (P200,000) as
moral damages in favor of respondents and against
petitioner is just and equitable.
WHEREFORE, the petition is DENIED. The Decision
dated October 3, 2002 and Resolution dated November
19, 2003 of the Court of Appeals in CA-G.R. CV No.
58184 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Carpio, Carpio-Morales, Tinga and Velasco, Jr., JJ.,
concur.
2. Respondeat superior
CASTILEX INDUSTRIAL CORPORATION vs.
VASQUEZ, JR., ET AL.
G.R. No. 132266, 21 December 1999, 321 SCRA 393
DAVIDE, JR., C.J p:
The pivotal issue in this petition is whether an
employer may be held vicariously liable for the death
resulting from the negligent operation by a managerial
employee of a company-issued vehicle.
The antecedents, as succinctly summarized by the
Court of Appeals, are as follows:
On 28 August 1988, at around 1:30 to 2:00 in the
morning, Romeo So Vasquez, was driving a Honda
motorcycle around Fuente Osmeña Rotunda. He was
traveling counter-clockwise, (the normal flow of traffic
in a rotunda) but without any protective helmet or
goggles. He was also only carrying a Student's Permit
to Drive at the time. Upon the other hand, Benjamin
Abad [was a] manager of Appellant Castilex Industrial
Corporation, registered owner [of] a Toyota Hi-Lux
Pick-up with plate no. GBW-794. On the same date and
time, Abad drove the said company car out of a parking
lot but instead of going around the Osmeña rotunda he
made a short cut against [the] flow of the traffic in
proceeding to his route to General Maxilom St. or to
Belvic St.
In the process, the motorcycle of Vasquez and the pick-
up of Abad collided with each other causing severe
injuries to the former. Abad stopped his vehicle and
brought Vasquez to the Southern Islands Hospital and
later to the Cebu Doctor's Hospital.
On September 5, 1988, Vasquez died at the Cebu
Doctor's Hospital. It was there that Abad signed an
acknowledgment of Responsible Party (Exhibit K)
wherein he agreed to pay whatever hospital bills,
professional fees and other incidental charges Vasquez
may incur.
After the police authorities had conducted the
investigation of the accident, a Criminal Case was filed
against Abad but which was subsequently dismissed
for failure to prosecute. So, the present action for
damages was commenced by Vicente Vasquez, Jr. and
Luisa So Vasquez, parents of the deceased Romeo So
Vasquez, against Jose Benjamin Abad and Castilex
Industrial Corporation. In the same action, Cebu
Doctor's Hospital intervened to collect unpaid balance
for the medical expense given to Romeo So Vasquez.
The trial court ruled in favor of private respondents
Vicente and Luisa Vasquez and ordered Jose Benjamin
Abad (hereafter ABAD) and petitioner Castilex
Industrial Corporation (hereafter CASTILEX) to pay
jointly and solidarily (1) Spouses Vasquez, the amounts
of P8,000.00 for burial expenses; P50,000.00 as moral
damages; P10,000.00 as attorney's fees; and P778,752.00
for loss of earning capacity; and (2) Cebu Doctor's
Hospital, the sum of P50,927.83 for unpaid medical and
hospital bills at 3% monthly interest from 27 July 1989
until fully paid, plus the costs of litigation.
CASTILEX and ABAD separately appealed the
decision.
In its decision 3 of 21 May 1997, the Court of Appeals
affirmed the ruling of the trial court holding ABAD and
CASTILEX liable but held that the liability of the latter
is "only vicarious and not solidary" with the former. It
reduced the award of damages representing loss of
earning capacity from P778,752.00 to P214,156.80; and
the interest on the hospital and medical bills, from 3%
per month to 12% per annum from 5 September 1988
until fully paid.
Upon CASTILEX's motion for reconsideration, the
Court of Appeals modified its decision by (1) reducing
the award of moral damages from P50,000 to P30,000 in
view of the deceased's contributory negligence; (b)
deleting the award of attorney's fees for lack of
evidence; and (c) reducing the interest on hospital and
medical bills to 6% per annum from 5 September 1988
until fully paid.
Hence, CASTILEX filed the instant petition contending
that the Court of Appeals erred in (1) applying to the
case the fifth paragraph of Article 2180 of the Civil
Code, instead of the fourth paragraph thereof; (2) that
as a managerial employee, ABAD was deemed to have
been always acting within the scope of his assigned task
even outside office hours because he was using a
vehicle issued to him by petitioner; and (3) ruling that
petitioner had the burden to prove that the employee
was not acting within the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of
facts of petitioner which holds fast on the theory of
negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue
that their son's death was caused by the negligence of
petitioner's employee who was driving a vehicle issued
by petitioner and who was on his way home from
overtime work for petitioner; and that petitioner is thus
liable for the resulting injury and subsequent death of
their son on the basis of the fifth paragraph of Article
158
2180. Even if the fourth paragraph of Article 2180 were
applied, petitioner cannot escape liability therefor. They
moreover argue that the Court of Appeals erred in
reducing the amount of compensatory damages when
the award made by the trial court was borne both by
evidence adduced during the trial regarding deceased's
wages and by jurisprudence on life expectancy.
Moreover, they point out that the petition is
procedurally not acceptable on the following grounds:
(1) lack of an explanation for serving the petition upon
the Court of Appeals by registered mail, as required
under Section 11, Rule 13 of the Rules of Civil
Procedure; and (2) lack of a statement of the dates of the
expiration of the original reglementary period and of
the filing of the motion for extension of time to file a
petition for review.
For its part, respondent Cebu Doctor's Hospital
maintains that petitioner CASTILEX is indeed
vicariously liable for the injuries and subsequent death
of Romeo Vasquez caused by ABAD, who was on his
way home from taking snacks after doing overtime
work for petitioner. Although the incident occurred
when ABAD was not working anymore "the
inescapable fact remains that said employee would not
have been situated at such time and place had he not
been required by petitioner to do overtime work."
Moreover, since petitioner adopted the evidence
adduced by ABAD, it cannot, as the latter's employer,
inveigle itself from the ambit of liability, and is thus
estopped by the records of the case, which it failed to
refute.
xxx xxx xxx
Now on the merits of the case.
The negligence of ABAD is not an issue at this instance.
Petitioner CASTILEX presumes said negligence but
claims that it is not vicariously liable for the injuries
and subsequent death caused by ABAD.
Petitioner contends that the fifth paragraph of Article
2180 of the Civil Code should only apply to instances
where the employer is not engaged in business or
industry. Since it is engaged in the business of
manufacturing and selling furniture it is therefore not
covered by said provision. Instead, the fourth
paragraph should apply.
Petitioner's interpretation of the fifth paragraph is not
accurate. The phrase "even though the former are not
engaged in any business or industry" found in the fifth
paragraph should be interpreted to mean that it is not
necessary for the employer to be engaged in any
business or industry to be liable for the negligence of
his employee who is acting within the scope of his
assigned task.
A distinction must be made between the two provisions
to determine what is applicable. Both provisions apply
to employers: the fourth paragraph, to owners and
159
managers of an establishment or enterprise; and the
fifth paragraph, to employers in general, whether or not
engaged in any business or industry. The fourth
paragraph covers negligent acts of employees
committed either in the service of the branches or on
the occasion of their functions, while the fifth
paragraph encompasses negligent acts of employees
acting within the scope of their assigned task. The latter
is an expansion of the former in both employer
coverage and acts included. Negligent acts of
employees, whether or not the employer is engaged in a
business or industry, are covered so long as they were
acting within the scope of their assigned task, even
though committed neither in the service of the branches
nor on the occasion of their functions. For, admittedly,
employees oftentimes wear different hats. They
perform functions which are beyond their office, title or
designation but which, nevertheless, are still within the
call of duty.
This court has applied the fifth paragraph to cases
where the employer was engaged in a business or
industry such as truck operators 6 and banks. 7 The
Court of Appeals cannot, therefore, be faulted in
applying the said paragraph of Article 2180 of the Civil
Code to this case.
Under the fifth paragraph of Article 2180, whether or
not engaged in any business or industry, an employer is
liable for the torts committed by employees within the
scope of his assigned tasks. But it is necessary to
establish the employer-employee relationship; once this
is done, the plaintiff must show, to hold the employer
liable, that the employee was acting within the scope of
his assigned task when the tort complained of was
committed. It is only then that the employer may find it
necessary to interpose the defense of due diligence in
the selection and supervision of the employee.
It is undisputed that ABAD was a Production Manager
of petitioner CASTILEX at the time of the tort
occurrence. As to whether he was acting within the
scope of his assigned task is a question of fact, which
the court a quo and the Court of Appeals resolved in the
affirmative.
Well-entrenched in our jurisprudence is the rule that
the factual findings of the Court of Appeals are entitled
to great respect, and even finality at times. This rule is,
however, subject to exceptions such as when the
conclusion is grounded on speculations, surmises, or
conjectures. Such exception obtain in the present case to
warrant review by this Court of the finding of the Court
of Appeals that since ABAD was driving petitioner's
vehicle he was acting within the scope of his duties as a
manager.
Before we pass upon the issue of whether ABAD was
performing acts within the range of his employment,
we shall first take up the other reason invoked by the
Court of Appeals in holding petitioner CASTILEX
vicariously liable for ABAD's negligence, i.e., that the
petitioner did not present evidence that ABAD was not
acting within the scope of his assigned tasks at the time
of the motor vehicle mishap. Contrary to the ruling of
the Court of Appeals, it was not incumbent upon the
petitioner to prove the same. It was enough for
petitioner CASTILEX to deny that ABAD was acting
within the scope of his duties; petitioner was not under
obligation to prove this negative averment. Ei incumbit
probatio qui dicit, non qui negat (He who asserts, not he
who denies, must prove). The Court has consistently
applied the ancient rule that if the plaintiff, upon whom
rests the burden of proving his cause of action, fails to
show in a satisfactory manner facts which he bases his
claim, the defendant is under no obligation to prove his
exception or defense.
Now on the issue of whether the private respondents
have sufficiently established that ABAD was acting
within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness,
testified that at the time of the incident, he was driving
a company-issued vehicle, registered under the name of
petitioner. He was then leaving the restaurant where he
had some snacks and had a chat with his friends after
having done overtime work for the petitioner.
No absolutely hard and fast rule can be stated which
will furnish the complete answer to the problem of
whether at a given moment, an employee is engaged in
his employer's business in the operation of a motor
vehicle, so as to fix liability upon the employer because
of the employee's action or inaction; but rather, the
result varies with each state of facts.
In Filamer Christian Institute v. Intermediate Appellate
Court, this Court had the occasion to hold that acts done
within the scope of the employee's assigned tasks
includes "any act done by an employee in furtherance
of the interests of the employer or for the account of the
employer at the time of the infliction of the injury or
damages."
The court a quo and the Court of Appeals were one in
holding that the driving by a manager of a company-
issued vehicle is within the scope of his assigned tasks
regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a
service vehicle at the time of the injurious incident is
not of itself sufficient to charge petitioner with liability
for the negligent operation of said vehicle unless it
appears that he was operating the vehicle within the
course or scope of his employment.
The following are principles in American Jurisprudence
on the employer's liability for the injuries inflicted by
the negligence of an employee in the use of an
employer's motor vehicle:
I. Operation of Employer's Motor Vehicle in Going to
or from Meals
It has been held that an employee who uses his
employer's vehicle in going from his work to a place
where he intends to eat or in returning to work from a
meal is not ordinarily acting within the scope of his
employment in the absence of evidence of some special
business benefit to the employer. Evidence that by
using the employer's vehicle to go to and from meals,
an employee is enabled to reduce his time-off and so
devote more time to the performance of his duties
supports the finding that an employee is acting within
the scope of his employment while so driving the
vehicle.
II. Operation of Employer's Vehicle in Going to or
from Work
In the same vein, traveling to and from the place of
work is ordinarily a personal problem or concern of the
employee, and not a part of his services to his
employer. Hence, in the absence of some special benefit
to the employer other than the mere performance of the
services available at the place where he is needed, the
employee is not acting within the scope of his
employment even though he uses his employer's motor
vehicle.
The employer may, however, be liable where he derives
some special benefit from having the employee drive
home in the employer's vehicle as when the employer
benefits from having the employee at work earlier and,
presumably, spending more time at his actual duties.
Where the employee's duties require him to circulate in
a general area with no fixed place or hours of work, or
to go to and from his home to various outside places of
work, and his employer furnishes him with a vehicle to
use in his work, the courts have frequently applied
what has been called the "special errand" or "roving
commission" rule, under which it can be found that the
employee continues in the service of his employer until
he actually reaches home. However, even if the
employee be deemed to be acting within the scope of
his employment in going to or from work in his
employer's vehicle, the employer is not liable for his
negligence where at the time of the accident, the
employee has left the direct route to his work or back
home and is pursuing a personal errand of his own.
III. Use of Employer's Vehicle Outside Regular
Working Hours
An employer who loans his motor vehicle to an
employee for the latter's personal use outside of regular
working hours is generally not liable for the employee's
negligent operation of the vehicle during the period of
permissive use, even where the employer contemplates
that a regularly assigned motor vehicle will be used by
the employee for personal as well as business purposes
and there is some incidental benefit to the employer.
Even where the employee's personal purpose in using
the vehicle has been accomplished and he has started
the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed
160
his employment, and the employer is not liable for the
employee's negligent operation of the vehicle during
the return trip.
The foregoing principles and jurisprudence are
applicable in our jurisdiction albeit based on the
doctrine of respondeat superior, not on the principle of
bonus pater familias as in ours. Whether the fault or
negligence of the employee is conclusive on his
employer as in American law or jurisprudence, or
merely gives rise to the presumption juris tantum of
negligence on the part of the employer as in ours, it is
indispensable that the employee was acting in his
employer's business or within the scope of his assigned
task.
In the case at bar, it is undisputed that ABAD did some
overtime work at the petitioner's office, which was
located in Cabangcalan, Mandaue City. Thereafter, he
went to Goldie's Restaurant in Fuente Osmeña, Cebu
City, which is about seven kilometers away from
petitioner's place of business. A witness for the private
respondents, a sidewalk vendor, testified that Fuente
Osmeña is a "lively place" even at dawn because
Goldie's Restaurant and Back Street were still open and
people were drinking thereat. Moreover, prostitutes,
pimps, and drug addicts littered the place.
At the Goldie's Restaurant, ABAD took some snacks
and had a chat with friends. It was when ABAD was
leaving the restaurant that the incident in question
occurred. That same witness for the private
respondents testified that at the time of the vehicular
accident, ABAD was with a woman in his car, who then
shouted: "Daddy, Daddy!" This woman could not have
been ABAD's daughter, for ABAD was only 29 years
old at the time.
To the mind of this Court, ABAD was engaged in
affairs of his own or was carrying out a personal
purpose not in line with his duties at the time he
figured in a vehicular accident. It was then about 2:00
a.m. of 28 August 1988, way beyond the normal
working hours. ABAD's working day had ended; his
overtime work had already been completed. His being
at a place which, as petitioner put it, was known as a
"haven for prostitutes, pimps, and drug pushers and
addicts," had no connection to petitioner's business;
neither had it any relation to his duties as a manager.
Rather, using his service vehicle even for personal
purposes was a form of a fringe benefit or one of the
perks attached to his position.
Since there is paucity of evidence that ABAD was
acting within the scope of the functions entrusted to
him, petitioner CASTILEX had no duty to show that it
exercised the diligence of a good father of a family in
providing ABAD with a service vehicle. Thus, justice
and equity require that petitioner be relieved of
vicarious liability for the consequences of the
negligence of ABAD in driving its vehicle.
161
WHEREFORE, the petition is GRANTED, and the
appealed decision and resolution of the Court of
Appeals is AFFIRMED with the modification that
petitioner Castilex Industrial Corporation be absolved
of any liability for the damages caused by its employee,
Jose Benjamin Abad.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.
RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 124354, 29 December 1999, 321 SCRA 584
See supra.
RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 124354, 11 April 2002, 380 SCRA 467
See supra.
NOGALES, ET AL. vs.
CAPITOL MEDICAL CENTER, ET AL.
G.R. No. 142625, 19 December 2006, 511 SCRA 204
CARPIO, J p:
The Case
This petition for review assails the 6 February 1998
Decision and 21 March 2000 Resolution of the Court of
Appeals in CA-G.R. CV No. 45641. The Court of
Appeals affirmed in toto the 22 November 1993
Decision 4 of the Regional Trial Court of Manila, Branch
33, finding Dr. Oscar Estrada solely liable for damages
for the death of his patient, Corazon Nogales, while
absolving the remaining respondents of any liability.
The Court of Appeals denied petitioners' motion for
reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales
("Corazon"), who was then 37 years old, was under the
exclusive prenatal care of Dr. Oscar Estrada ("Dr.
Estrada") beginning on her fourth month of pregnancy
or as early as December 1975. While Corazon was on
her last trimester of pregnancy, Dr. Estrada noted an
increase in her blood pressure and development of leg
edema indicating preeclampsia, which is a dangerous
complication of pregnancy.
Around midnight of 25 May 1976, Corazon started to
experience mild labor pains prompting Corazon and
Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada
at his home. After examining Corazon, Dr. Estrada
advised her immediate admission to the Capitol
Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at
the CMC after the staff nurse noted the written
admission request of Dr. Estrada. Upon Corazon's
admission at the CMC, Rogelio Nogales ("Rogelio")
executed and signed the "Consent on Admission and
Agreement" and "Admission Agreement." Corazon was
then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident
physician of CMC, conducted an internal examination
of Corazon. Dr. Uy then called up Dr. Estrada to notify
him of her findings.
Based on the Doctor's Order Sheet, around 3:00 a.m.,
Dr. Estrada ordered for 10 mg. of valium to be
administered immediately by intramuscular injection.
Dr. Estrada later ordered the start of intravenous
administration of syntocinon admixed with dextrose,
5%, in lactated Ringers' solution, at the rate of eight to
ten micro-drops per minute.
According to the Nurse's Observation Notes, Dr. Joel
Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC,
was notified at 4:15 a.m. of Corazon's admission.
Subsequently, when asked if he needed the services of
an anesthesiologist, Dr. Estrada refused. Despite Dr.
Estrada's refusal, Dr. Enriquez stayed to observe
Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room
No. 1 of the CMC. At 6:10 a.m., Corazon's bag of water
ruptured spontaneously. At 6:12 a.m., Corazon's cervix
was fully dilated. At 6:13 a.m., Corazon started to
experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten
grams of magnesium sulfate. However, Dr. Ely Villaflor
("Dr. Villaflor"), who was assisting Dr. Estrada,
administered only 2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor,
applied low forceps to extract Corazon's baby. In the
process, a 1.0 x 2.5 cm. piece of cervical tissue was
allegedly torn. The baby came out in an apnic, cyanotic,
weak and injured condition. Consequently, the baby
had to be intubated and resuscitated by Dr. Enriquez
and Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate
vaginal bleeding which rapidly became profuse.
Corazon's blood pressure dropped from 130/80 to
60/40 within five minutes. There was continuous
profuse vaginal bleeding. The assisting nurse
administered hemacel through a gauge 19 needle as a
side drip to the ongoing intravenous injection of
dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and
cross matching with bottled blood. It took
approximately 30 minutes for the CMC laboratory,
headed by Dr. Perpetua Lacson ("Dr. Lacson"), to
comply with Dr. Estrada's order and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of
the Obstetrics-Gynecology Department of the CMC,
was apprised of Corazon's condition by telephone.
Upon being informed that Corazon was bleeding
profusely, Dr. Espinola ordered immediate
hysterectomy. Rogelio was made to sign a "Consent to
Operation."
Due to the inclement weather then, Dr. Espinola, who
was fetched from his residence by an ambulance,
arrived at the CMC about an hour later or at 9:00 a.m.
He examined the patient and ordered some
resuscitative measures to be administered. Despite Dr.
Espinola's efforts, Corazon died at 9:15 a.m. The cause
of death was "hemorrhage, post partum."
On 14 May 1980, petitioners filed a complaint for
damages with the Regional Trial Court of Manila
against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr.
Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse
J. Dumlao for the death of Corazon. Petitioners mainly
contended that defendant physicians and CMC
personnel were negligent in the treatment and
management of Corazon's condition. Petitioners
charged CMC with negligence in the selection and
supervision of defendant physicians and hospital staff.
For failing to file their answer to the complaint despite
service of summons, the trial court declared Dr.
Estrada, Dr. Enriquez, and Nurse Dumlao in default.
CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr.
Lacson filed their respective answers denying and
opposing the allegations in the complaint.
Subsequently, trial ensued.
After more than 11 years of trial, the trial court
rendered judgment on 22 November 1993 finding Dr.
Estrada solely liable for damages. The trial court ruled
as follows:
The victim was under his pre-natal
care, apparently, his fault began from
his incorrect and inadequate
management and lack of treatment of
the pre-eclamptic condition of his
patient. It is not disputed that he
misapplied the forceps in causing the
delivery because it resulted in a large
cervical tear which had caused the
profuse bleeding which he also failed
to control with the application of
inadequate injection of magnesium
sulfate by his assistant Dra. Ely
Villaflor. Dr. Estrada even failed to
notice the erroneous administration
by nurse Dumlao of hemacel by way
of side drip, instead of direct
intravenous injection, and his failure
to consult a senior obstetrician at an
early stage of the problem.
On the part however of Dra. Ely
Villaflor, Dra. Rosa Uy, Dr. Joel
Enriquez, Dr. Lacson, Dr. Espinola,
nurse J. Dumlao and CMC, the Court
162
 finds no legal justification to find
them civilly liable.
On the part of Dra. Ely Villaflor, she
was only taking orders from Dr.
Estrada, the principal physician of
Corazon Nogales. She can only make
suggestions in the manner the patient
may be treated but she cannot impose
her will as to do so would be to
substitute her good judgment to that
of Dr. Estrada. If she failed to
correctly diagnose the true cause of
the bleeding which in this case
appears to be a cervical laceration, it
cannot be safely concluded by the
Court that Dra. Villaflor had the
correct diagnosis and she failed to
inform Dr. Estrada. No evidence was
introduced to show that indeed Dra.
Villaflor had discovered that there
was laceration at the cervical area of
the patient's internal organ.
On the part of nurse Dumlao, there is
no showing that when she
administered the hemacel as a side
drip, she did it on her own. If the
correct procedure was directly thru
the veins, it could only be because
this was what was probably the
orders of Dr. Estrada.
While the evidence of the plaintiffs
shows that Dr. Noe Espinola, who
was the Chief of the Department of
Obstetrics and Gynecology who
attended to the patient Mrs. Nogales,
it was only at 9:00 a.m. That he was
able to reach the hospital because of
typhoon Didang (Exhibit 2). While he
was able to give prescription in the
manner Corazon Nogales may be
treated, the prescription was based
on the information given to him by
phone and he acted on the basis of
facts as presented to him, believing in
good faith that such is the correct
remedy. He was not with Dr. Estrada
when the patient was brought to the
hospital at 2:30 o'clock a.m. So,
whatever errors that Dr. Estrada
committed on the patient before 9:00
o'clock a.m. are certainly the errors of
Dr. Estrada and cannot be the
mistake of Dr. Noe Espinola. His
failure to come to the hospital on time
was due to fortuitous event.
On the part of Dr. Joel Enriquez,
while he was present in the delivery
room, it is not incumbent upon him
163
to call the attention of Dr. Estrada,
Dra. Villaflor and also of Nurse
Dumlao on the alleged errors
committed by them. Besides, as
anesthesiologist, he has no authority
to control the actuations of Dr.
Estrada and Dra. Villaflor. For the
Court to assume that there were
errors being committed in the
presence of Dr. Enriquez would be to
dwell on conjectures and
speculations.
On the civil liability of Dr. Perpetua
Lacson, [s]he is a hematologist and
in-charge of the blood bank of the
CMC. The Court cannot accept the
theory of the plaintiffs that there was
delay in delivering the blood needed
by the patient. It was testified, that in
order that this blood will be made
available, a laboratory test has to be
conducted to determine the type of
blood, cross matching and other
matters consistent with medical
science so, the lapse of 30 minutes
may be considered a reasonable time
to do all of these things, and not a
delay as the plaintiffs would want the
Court to believe.
Admittedly, Dra. Rosa Uy is a
resident physician of the Capitol
Medical Center. She was sued
because of her alleged failure to
notice the incompetence and
negligence of Dr. Estrada. However,
there is no evidence to support such
theory. No evidence was adduced to
show that Dra. Rosa Uy as a resident
physician of Capitol Medical Center,
had knowledge of the
mismanagement of the patient
Corazon Nogales, and that
notwithstanding such knowledge,
she tolerated the same to happen.
In the pre-trial order, plaintiffs and
CMC agreed that defendant CMC did
not have any hand or participation in
the selection or hiring of Dr. Estrada
or his assistant Dra. Ely Villaflor as
attending physician[s] of the
deceased. In other words, the two (2)
doctors were not employees of the
hospital and therefore the hospital
did not have control over their
professional conduct. When Mrs.
Nogales was brought to the hospital,
it was an emergency case and
defendant CMC had no choice but to
admit her. Such being the case, there
 is therefore no legal ground to apply
the provisions of Article 2176 and
2180 of the New Civil Code referring
to the vicarious liability of an
employer for the negligence of its
employees. If ever in this case there is
fault or negligence in the treatment of
the deceased on the part of the
attending physicians who were
employed by the family of the
deceased, such civil liability should
be borne by the attending physicians
under the principle of "respondeat
superior".
xxx xxx xxx
Petitioners appealed the trial court's decision.
Petitioners claimed that aside from Dr. Estrada, the
remaining respondents should be held equally liable for
negligence. Petitioners pointed out the extent of each
respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the
decision of the trial court. Petitioners filed a motion for
reconsideration which the Court of Appeals denied in
its Resolution of 21 March 2000.
Hence, this petition.
xxx xxx xxx
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals
upheld the trial court's ruling. The Court of Appeals
rejected petitioners' view that the doctrine in Darling v.
Charleston Community Memorial Hospital applies to this
case. According to the Court of Appeals, the present
case differs from the Darling case since Dr. Estrada is an
independent contractor-physician whereas the Darling
case involved a physician and a nurse who were
employees of the hospital.
Citing other American cases, the Court of Appeals
further held that the mere fact that a hospital permitted
a physician to practice medicine and use its facilities is
not sufficient to render the hospital liable for the
physician's negligence. A hospital is not responsible for
the negligence of a physician who is an independent
contractor.
The Court of Appeals found the cases of Davidson v.
Conole and Campbell v. Emma Laing Stevens Hospital
applicable to this case. Quoting Campbell, the Court of
Appeals stated that where there is no proof that
defendant physician was an employee of defendant
hospital or that defendant hospital had reason to know
that any acts of malpractice would take place,
defendant hospital could not be held liable for its
failure to intervene in the relationship of physician-
patient between defendant physician and plaintiff.
On the liability of the other respondents, the Court of
Appeals applied the "borrowed servant" doctrine
considering that Dr. Estrada was an independent
contractor who was merely exercising hospital
privileges. This doctrine provides that once the surgeon
enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room
personnel, and any negligence associated with such acts
or omissions, are imputable to the surgeon. While the
assisting physicians and nurses may be employed by
the hospital, or engaged by the patient, they normally
become the temporary servants or agents of the
surgeon in charge while the operation is in progress,
and liability may be imposed upon the surgeon for their
negligent acts under the doctrine of respondeat superior.
The Court of Appeals concluded that since Rogelio
engaged Dr. Estrada as the attending physician of his
wife, any liability for malpractice must be Dr. Estrada's
sole responsibility.
While it found the amount of damages fair and
reasonable, the Court of Appeals held that no interest
could be imposed on unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is
vicariously liable for the negligence of Dr. Estrada. The
resolution of this issue rests, on the other hand, on the
ascertainment of the relationship between Dr. Estrada
and CMC. The Court also believes that a determination
of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the
present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and
management of Corazon's condition which ultimately
resulted in Corazon's death is no longer in issue. Dr.
Estrada did not appeal the decision of the Court of
Appeals which affirmed the ruling of the trial court
finding Dr. Estrada solely liable for damages.
Accordingly, the finding of the trial court on Dr.
Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable for
Dr. Estrada's negligence based on Article 2180 in
relation to Article 2176 of the Civil Code. These
provisions pertinently state:
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.
164

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.
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.
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.
Similarly, in the United States, a hospital which is the
employer, master, or principal of a physician employee,
servant, or agent, may be held liable for the physician's
negligence under the doctrine of respondeat superior.
In the present case, petitioners maintain that CMC, in
allowing Dr. Estrada to practice and admit patients at
CMC, should be liable for Dr. Estrada's malpractice.
Rogelio claims that he knew Dr. Estrada as an
accredited physician of CMC, though he discovered
later that Dr. Estrada was not a salaried employee of the
CMC. Rogelio further claims that he was dealing with
CMC, whose primary concern was the treatment and
management of his wife's condition. Dr. Estrada just
happened to be the specific person he talked to
representing CMC. Moreover, the fact that CMC made
Rogelio sign a Consent on Admission and Admission
Agreement and a Consent to Operation printed on the
letterhead of CMC indicates that CMC considered Dr.
Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting
that Dr. Estrada was a mere visiting physician and that
it admitted Corazon because her physical condition
then was classified an emergency obstetrics case. CMC
alleges that Dr. Estrada is an independent contractor
"for whose actuations CMC would be a total stranger."
CMC maintains that it had no control or supervision
over Dr. Estrada in the exercise of his medical
profession.
The Court had the occasion to determine the
relationship between a hospital and a consultant or
visiting physician and the liability of such hospital for
165
that physician's negligence in Ramos v. Court of Appeals,
to wit:
In the first place, hospitals exercise
significant control in the hiring and
firing of consultants and in the
conduct of their work within the
hospital premises. Doctors who apply
for "consultant" slots, visiting or
attending, are required to submit
proof of completion of residency,
their educational qualifications;
generally, evidence of accreditation
by the appropriate board (diplomate),
evidence of fellowship in most cases,
and references. These requirements
are carefully scrutinized by members
of the hospital administration or by a
review committee set up by the
hospital who either accept or reject
the application. This is particularly
true with respondent hospital.
After a physician is accepted, either
as a visiting or attending consultant,
he is normally required to attend
clinico-pathological conferences,
conduct bedside rounds for clerks,
interns and residents, moderate
grand rounds and patient audits and
perform other tasks and
responsibilities, for the privilege of
being able to maintain a clinic in the
hospital, and/or for the privilege of
admitting patients into the hospital.
In addition to these, the physician's
performance as a specialist is
generally evaluated by a peer review
committee on the basis of mortality
and morbidity statistics, and
feedback from patients, nurses,
interns and residents. A consultant
remiss in his duties, or a consultant
who regularly falls short of the
minimum standards acceptable to the
hospital or its peer review committee,
is normally politely terminated.
In other words, private hospitals,
hire, fire and exercise real control
over their attending and visiting
"consultant" staff. While "consultants"
are not, technically employees, a
point which respondent hospital
asserts in denying all responsibility
for the patient's condition, the control
exercised, the hiring, and the right to
terminate consultants all fulfill the
important hallmarks of an employer-
employee relationship, with the
exception of the payment of wages. In
assessing whether such a relationship
 in fact exists, the control test is
determining. Accordingly, on the
basis of the foregoing, we rule that
for the purpose of allocating
responsibility in medical negligence
cases, an employer-employee
relationship in effect exists between
hospitals and their attending and
visiting physicians. This being the
case, the question now arises as to
whether or not respondent hospital is
solidarily liable with respondent
doctors for petitioner's condition.
The basis for holding an employer
solidarily responsible for the
negligence of its employee is found in
Article 2180 of the Civil Code which
considers a person accountable not
only for his own acts but also for
those of others based on the former's
responsibility under a relationship of
patria potestas. . . .” (Emphasis
supplied)
While the Court in Ramos did not expound on the
control test, such test essentially determines whether an
employment relationship exists between a physician
and a hospital based on the exercise of control over the
physician as to details. Specifically, the employer (or
the hospital) must have the right to control both the
means and the details of the process by which the
employee (or the physician) is to accomplish his task.
After a thorough examination of the voluminous
records of this case, the Court finds no single evidence
pointing to CMC's exercise of control over Dr. Estrada's
treatment and management of Corazon's condition. It is
undisputed that throughout Corazon's pregnancy, she
was under the exclusive prenatal care of Dr. Estrada. At
the time of Corazon's admission at CMC and during
her delivery, it was Dr. Estrada, assisted by Dr.
Villaflor, who attended to Corazon. There was no
showing that CMC had a part in diagnosing Corazon's
condition. While Dr. Estrada enjoyed staff privileges at
CMC, such fact alone did not make him an employee of
CMC. CMC merely allowed Dr. Estrada to use its
facilities when Corazon was about to give birth, which
CMC considered an emergency. Considering these
circumstances, Dr. Estrada is not an employee of CMC,
but an independent contractor.
The question now is whether CMC is automatically
exempt from liability considering that Dr. Estrada is an
independent contractor-physician.
In general, a hospital is not liable for the negligence of
an independent contractor-physician. There is,
however, an exception to this principle. The hospital
may be liable if the physician is the "ostensible" agent of
the hospital. This exception is also known as the
"doctrine of apparent authority." In Gilbert v. Sycamore
Municipal Hospital, the Illinois Supreme Court explained
the doctrine of apparent authority in this wise:
[U]nder the doctrine of apparent
authority a hospital can be held
vicariously liable for the negligent
acts of a physician providing care at
the hospital, regardless of whether
the physician is an independent
contractor, unless the patient knows,
or should have known, that the
physician is an independent
contractor. The elements of the action
have been set out as follows:
"For a hospital to be liable under the
doctrine of apparent authority, a
plaintiff must show that: (1) the
hospital, or its agent, acted in a
manner that would lead a reasonable
person to conclude that the
individual who was alleged to be
negligent was an employee or agent
of the hospital; (2) where the acts of
the agent create the appearance of
authority, the plaintiff must also
prove that the hospital had
knowledge of and acquiesced in
them; and (3) the plaintiff acted in
reliance upon the conduct of the
hospital or its agent, consistent with
ordinary care and prudence."
The element of "holding out" on the
part of the hospital does not require
an express representation by the
hospital that the person alleged to be
negligent is an employee. Rather, the
element is satisfied if the hospital
holds itself out as a provider of
emergency room care without
informing the patient that the care is
provided by independent contractors.
The element of justifiable reliance on
the part of the plaintiff is satisfied if
the plaintiff relies upon the hospital
to provide complete emergency room
care, rather than upon a specific
physician.
The doctrine of apparent authority essentially involves
two factors to determine the liability of an independent-
contractor physician.
The first factor focuses on the hospital's manifestations
and is sometimes described as an inquiry whether the
hospital acted in a manner which would lead a
reasonable person to conclude that the individual who
was alleged to be negligent was an employee or agent
of the hospital. In this regard, the hospital need not
make express representations to the patient that the
166
treating physician is an employee of the hospital; rather
a representation may be general and implied.
The doctrine of apparent authority is a species of the
doctrine of estoppel. Article 1431 of the Civil Code
provides that "[t]hrough estoppel, an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as
against the person relying thereon." Estoppel rests on
this rule: "Whenever a party has, by his own
declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing
true, and to act upon such belief, he cannot, in any
litigation arising out of such declaration, act or
omission, be permitted to falsify it."
In the instant case, CMC impliedly held out Dr. Estrada
as a member of its medical staff. Through CMC's acts,
CMC clothed Dr. Estrada with apparent authority
thereby leading the Spouses Nogales to believe that Dr.
Estrada was an employee or agent of CMC. CMC
cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC
extended its medical staff and facilities to Dr. Estrada.
Upon Dr. Estrada's request for Corazon's admission,
CMC, through its personnel, readily accommodated
Corazon and updated Dr. Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed
on CMC letterhead. Prior to Corazon's admission and
supposed hysterectomy, CMC asked Rogelio to sign
release forms, the contents of which reinforced
Rogelio's belief that Dr. Estrada was a member of
CMC's medical staff. 50 The Consent on Admission and
Agreement explicitly provides:
KNOW ALL MEN BY THESE
PRESENTS:
I, Rogelio Nogales, of legal age, a
resident of 1974 M. H. Del Pilar St.,
Malate Mla., being the
father/mother/brother/sister/spous
e/relative/guardian/or person in
custody of Ma. Corazon, and
representing his/her family, of my
own volition and free will, do consent
and submit said Ma. Corazon to Dr.
Oscar Estrada (hereinafter referred to
as Physician) for cure, treatment,
retreatment, or emergency measures,
that the Physician, personally or by
and through the Capitol Medical
Center and/or its staff, may use,
adapt, or employ such means, forms
or methods of cure, treatment,
retreatment, or emergency measures
as he may see best and most
expedient; that Ma. Corazon and I
will comply with any and all rules,
regulations, directions, and
167
instructions of the Physician, the
Capitol Medical Center and/or its
staff; and, that I will not hold liable
or responsible and hereby waive and
forever discharge and hold free the
Physician, the Capitol Medical Center
and/or its staff, from any and all
claims of whatever kind of nature,
arising from directly or indirectly, or
by reason of said cure, treatment, or
retreatment, or emergency measures
or intervention of said physician, the
Capitol Medical Center and/or its
staff.
xxx xxx xxx
(Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
“I, ROGELIO NOGALES, . . ., of my
own volition and free will, do consent
and submit said CORAZON
NOGALES to Hysterectomy, by the
Surgical Staff and Anesthesiologists
of Capitol Medical Center and/or
whatever succeeding operations,
treatment, or emergency measures as
may be necessary and most
expedient; and, that I will not hold
liable or responsible and hereby
waive and forever discharge and
hold free the Surgeon, his assistants,
anesthesiologists, the Capitol Medical
Center and/or its staff, from any and
all claims of whatever kind of nature,
arising from directly or indirectly, or
by reason of said operation or
operations, treatment, or emergency
measures, or intervention of the
Surgeon, his assistants,
anesthesiologists, the Capitol Medical
Center and/or its staff.” (Emphasis
supplied)
Without any indication in these consent forms that Dr.
Estrada was an independent contractor-physician, the
Spouses Nogales could not have known that Dr.
Estrada was an independent contractor. Significantly,
no one from CMC informed the Spouses Nogales that
Dr. Estrada was an independent contractor. On the
contrary, Dr. Atencio, who was then a member of CMC
Board of Directors, testified that Dr. Estrada was part of
CMC's surgical staff.
Third, Dr. Estrada's referral of Corazon's profuse
vaginal bleeding to Dr. Espinola, who was then the
Head of the Obstetrics and Gynecology Department of
CMC, gave the impression that Dr. Estrada as a
member of CMC's medical staff was collaborating with
other CMC-employed specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is
sometimes characterized as an inquiry on whether the
plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and
prudence.
The records show that the Spouses Nogales relied upon
a perceived employment relationship with CMC in
accepting Dr. Estrada's services. Rogelio testified that
he and his wife specifically chose Dr. Estrada to handle
Corazon's delivery not only because of their friend's
recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the
[CMC]." In other words, Dr. Estrada's relationship with
CMC played a significant role in the Spouses Nogales'
decision in accepting Dr. Estrada's services as the
obstetrician-gynecologist for Corazon's delivery.
Moreover, as earlier stated, there is no showing that
before and during Corazon's confinement at CMC, the
Spouses Nogales knew or should have known that Dr.
Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to
provide the best medical care and support services for
Corazon's delivery. The Court notes that prior to
Corazon's fourth pregnancy, she used to give birth
inside a clinic. Considering Corazon's age then, the
Spouses Nogales decided to have their fourth child
delivered at CMC, which Rogelio regarded one of the
best hospitals at the time. This is precisely because the
Spouses Nogales feared that Corazon might experience
complications during her delivery which would be
better addressed and treated in a modern and big
hospital such as CMC. Moreover, Rogelio's consent in
Corazon's hysterectomy to be performed by a different
physician, namely Dr. Espinola, is a clear indication of
Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to
[Corazon] its facilities" is untenable. The Court cannot
close its eyes to the reality that hospitals, such as CMC,
are in the business of treatment. In this regard, the
Court agrees with the observation made by the Court of
Appeals of North Carolina in Diggs v. Novant Health,
Inc., to wit:
"The conception that the hospital
does not undertake to treat the
patient, does not undertake to act
through its doctors and nurses, but
undertakes instead simply to procure
them to act upon their own
responsibility, no longer reflects the
fact. Present day hospitals, as their
manner of operation plainly
demonstrates, do far more than
furnish facilities for treatment. They
regularly employ on a salary basis a
large staff of physicians, nurses and
internes [sic], as well as
administrative and manual workers,
and they charge patients for medical
care and treatment, collecting for
such services, if necessary, by legal
action. Certainly, the person who
avails himself of 'hospital facilities'
expects that the hospital will
attempt to cure him, not that its
nurses or other employees will act
on their own responsibility." . . .
(Emphasis supplied)
Likewise unconvincing is CMC's argument that
petitioners are estopped from claiming damages based
on the Consent on Admission and Consent to
Operation. Both release forms consist of two parts. The
first part gave CMC permission to administer to
Corazon any form of recognized medical treatment
which the CMC medical staff deemed advisable. The
second part of the documents, which may properly be
described as the releasing part, releases CMC and its
employees "from any and all claims" arising from or by
reason of the treatment and operation.
The documents do not expressly release CMC from
liability for injury to Corazon due to negligence during
her treatment or operation. Neither do the consent
forms expressly exempt CMC from liability for
Corazon's death due to negligence during such
treatment or operation. Such release forms, being in the
nature of contracts of adhesion, are construed strictly
against hospitals. Besides, a blanket release in favor of
hospitals "from any and all claims," which includes
claims due to bad faith or gross negligence, would be
contrary to public policy and thus void.
Even simple negligence is not subject to blanket release
in favor of establishments like hospitals but may only
mitigate liability depending on the circumstances.
When a person needing urgent medical attention
rushes to a hospital, he cannot bargain on equal footing
with the hospital on the terms of admission and
operation. Such a person is literally at the mercy of the
hospital. There can be no clearer example of a contract
of adhesion than one arising from such a dire situation.
Thus, the release forms of CMC cannot relieve CMC
from liability for the negligent medical treatment of
Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September
2002 59 Resolution that the filing of petitioners'
Manifestation confined petitioners' claim only against
CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have
filed their comments, the Court deems it proper to
resolve the individual liability of the remaining
respondents to put an end finally to this more than two-
decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to
diagnose the cause of Corazon's bleeding and to
168
suggest the correct remedy to Dr. Estrada. Petitioners
assert that it was Dr. Villaflor's duty to correct the error
of Nurse Dumlao in the administration of hemacel.
The Court is not persuaded. Dr. Villaflor admitted
administering a lower dosage of magnesium sulfate.
However, this was after informing Dr. Estrada that
Corazon was no longer in convulsion and that her
blood pressure went down to a dangerous level. At that
moment, Dr. Estrada instructed Dr. Villaflor to reduce
the dosage of magnesium sulfate from 10 to 2.5 grams.
Since petitioners did not dispute Dr. Villaflor's
allegation, Dr. Villaflor's defense remains
uncontroverted. Dr. Villaflor's act of administering a
lower dosage of magnesium sulfate was not out of her
own volition or was in contravention of Dr. Estrada's
order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her
failure (1) to call the attention of Dr. Estrada on the
incorrect dosage of magnesium sulfate administered by
Dr. Villaflor; (2) to take corrective measures; and (3) to
correct Nurse Dumlao's wrong method of hemacel
administration.
The Court believes Dr. Uy's claim that as a second year
resident physician then at CMC, she was merely
authorized to take the clinical history and physical
examination of Corazon. However, that routine internal
examination did not ipso facto make Dr. Uy liable for
the errors committed by Dr. Estrada. Further,
petitioners' imputation of negligence rests on their
baseless assumption that Dr. Uy was present at the
delivery room. Nothing shows that Dr. Uy participated
in delivering Corazon's baby. Further, it is unexpected
from Dr. Uy, a mere resident physician at that time, to
call the attention of a more experienced specialist, if
ever she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling
the attention of Dr. Estrada, Dr. Villaflor, and Nurse
Dumlao about their errors. Petitioners insist that Dr.
Enriquez should have taken, or at least suggested,
corrective measures to rectify such errors.
The Court is not convinced. Dr. Enriquez is an
anesthesiologist whose field of expertise is definitely
not obstetrics and gynecology. As such, Dr. Enriquez
was not expected to correct Dr. Estrada's errors.
Besides, there was no evidence of Dr. Enriquez's
knowledge of any error committed by Dr. Estrada and
his failure to act upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported
delay in the delivery of blood Corazon needed.
169
Petitioners claim that Dr. Lacson was remiss in her duty
of supervising the blood bank staff.
As found by the trial court, there was no unreasonable
delay in the delivery of blood from the time of the
request until the transfusion to Corazon. Dr. Lacson
competently explained the procedure before blood
could be given to the patient. Taking into account the
bleeding time, clotting time and cross-matching, Dr.
Lacson stated that it would take approximately 45-60
minutes before blood could be ready for transfusion.
Further, no evidence exists that Dr. Lacson neglected
her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have
ordered immediate hysterectomy without determining
the underlying cause of Corazon's bleeding. Dr.
Espinola should have first considered the possibility of
cervical injury, and advised a thorough examination of
the cervix, instead of believing outright Dr. Estrada's
diagnosis that the cause of bleeding was uterine atony.
Dr. Espinola's order to do hysterectomy which was
based on the information he received by phone is not
negligence. The Court agrees with the trial court's
observation that Dr. Espinola, upon hearing such
information about Corazon's condition, believed in
good faith that hysterectomy was the correct remedy.
At any rate, the hysterectomy did not push through
because upon Dr. Espinola's arrival, it was already too
late. At the time, Corazon was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc., the US Court of
Appeals, Fourth Circuit, held that to recover, a patient
complaining of injuries allegedly resulting when the
nurse negligently injected medicine to him
intravenously instead of intramuscularly had to show
that (1) an intravenous injection constituted a lack of
reasonable and ordinary care; (2) the nurse injected
medicine intravenously; and (3) such injection was the
proximate cause of his injury.
In the present case, there is no evidence of Nurse
Dumlao's alleged failure to follow Dr. Estrada's specific
instructions. Even assuming Nurse Dumlao defied Dr.
Estrada's order, there is no showing that side-drip
administration of hemacel proximately caused
Corazon's death. No evidence linking Corazon's death
and the alleged wrongful hemacel administration was
introduced. Therefore, there is no basis to hold Nurse
Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and
allowed under Article 2211 of the Civil Code, which
states that in crimes and quasi-delicts, interest as a part
of the damages may, in a proper case, be adjudicated in
the discretion of the court.
WHEREFORE, the Court PARTLY GRANTS the
petition. The Court finds respondent Capitol Medical
Center vicariously liable for the negligence of Dr. Oscar
Estrada. The amounts of P105,000 as actual damages
and P700,000 as moral damages should each earn legal
interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial
court. The Court affirms the rest of the Decision dated 6
February 1998 and Resolution dated 21 March 2000 of
the Court of Appeals in CA-G.R. CV No. 45641.
SO ORDERED.
Quisumbing, Carpio-Morales, Tinga and Velasco, Jr.,
JJ., concur.
PROFESSIONAL SERVICES, INC. vs.
COURT OF APPEALS, ET AL.
G.R. Nos. 126297, 126467, 127590, 11 February 2008,
513 SCRA 478.
SANDOVAL-GUTIERREZ, J p:
As the hospital industry changes, so must the laws and
jurisprudence governing hospital liability. The
immunity from medical malpractice traditionally
accorded to hospitals has to be eroded if we are to
balance the interest of the patients and hospitals under
the present setting.
Before this Court is a motion for reconsideration filed
by Professional Services, Inc. (PSI), petitioner in G.R.
No. 126297, assailing the Court's First Division Decision
dated January 31, 2007, finding PSI and Dr. Miguel
Ampil, petitioner in G.R. No. 127590, jointly and
severally liable for medical negligence.
A brief revisit of the antecedent facts is imperative.
On April 4, 1984, Natividad Agana was admitted at the
Medical City General Hospital (Medical City) because
of difficulty of bowel movement and bloody anal
discharge. Dr. Ampil diagnosed her to be suffering
from "cancer of the sigmoid." Thus, on April 11, 1984,
Dr. Ampil, assisted by the medical staff of Medical City,
performed an anterior resection surgery upon her.
During the surgery, he found that the malignancy in
her sigmoid area had spread to her left ovary,
necessitating the removal of certain portions of it. Thus,
Dr. Ampil obtained the consent of Atty. Enrique Agana,
Natividad's husband, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform
hysterectomy upon Natividad.
Dr. Fuentes performed and completed the
hysterectomy. Afterwards, Dr. Ampil took over,
completed the operation and closed the incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11,
1984, the attending nurses entered these remarks:
sponge count lacking 2
announced to surgeon searched done (sic) but
to no avail continue for closure.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that
the pain was the natural consequence of the surgical
operation performed upon her. Dr. Ampil
recommended that Natividad consult an oncologist to
treat the cancerous nodes which were not removed
during the operation.
On May 9, 1984, Natividad, accompanied by her
husband, went to the United States to seek further
treatment. After four (4) months of consultations and
laboratory examinations, Natividad was told that she
was free of cancer. Hence, she was advised to return to
the Philippines.
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two (2) weeks
thereafter, her daughter found a piece of gauze
protruding from her vagina. Dr. Ampil was
immediately informed. He proceeded to Natividad's
house where he managed to extract by hand a piece of
gauze measuring 1.5 inches in width. Dr. Ampil then
assured Natividad that the pains would soon vanish.
Despite Dr. Ampil's assurance, the pains intensified,
prompting Natividad to seek treatment at the
Polymedic General Hospital. While confined thereat,
Dr. Ramon Gutierrez detected the presence of a foreign
object in her vagina — a foul-smelling gauze measuring
1.5 inches in width. The gauze had badly infected her
vaginal vault. A recto-vaginal fistula had formed in her
reproductive organ which forced stool to excrete
through the vagina. Another surgical operation was
needed to remedy the situation. Thus, in October 1984,
Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband
filed with the Regional Trial Court, Branch 96, Quezon
City a complaint for damages against PSI (owner of
Medical City), Dr. Ampil and Dr. Fuentes.
On February 16, 1986, pending the outcome of the
above case, Natividad died. She was duly substituted
by her above-named children (the Aganas).
On March 17, 1993, the trial court rendered judgment in
favor of spouses Agana finding PSI, Dr. Ampil and Dr.
Fuentes jointly and severally liable. On appeal, the
Court of Appeals, in its Decision dated September 6,
1996, affirmed the assailed judgment with modification
in the sense that the complaint against Dr. Fuentes was
dismissed.
170
PSI, Dr. Ampil and the Aganas filed with this Court
separate petitions for review on certiorari. On January
31, 2007, the Court, through its First Division, rendered
a Decision holding that PSI is jointly and severally
liable with Dr. Ampil for the following reasons: first,
there is an employer-employee relationship between
Medical City and Dr. Ampil. The Court relied on Ramos
v. Court of Appeals, holding that for the purpose of
apportioning responsibility in medical negligence cases,
an employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians; second, PSI's act of publicly displaying in
the lobby of the Medical City the names and
specializations of its accredited physicians, including
Dr. Ampil, estopped it from denying the existence of an
employer-employee relationship between them under
the doctrine of ostensible agency or agency by estoppel;
and third, PSI's failure to supervise Dr. Ampil and its
resident physicians and nurses and to take an active
step in order to remedy their negligence rendered it
directly liable under the doctrine of corporate
negligence.
In its motion for reconsideration, PSI contends that the
Court erred in finding it liable under Article 2180 of the
Civil Code, there being no employer-employee
relationship between it and its consultant, Dr. Ampil.
PSI stressed that the Court's Decision in Ramos holding
that "an employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians for the purpose of apportioning
responsibility" had been reversed in a subsequent
Resolution. Further, PSI argues that the doctrine of
ostensible agency or agency by estoppel cannot apply
because spouses Agana failed to establish one requisite
of the doctrine, i.e., that Natividad relied on the
representation of the hospital in engaging the services
of Dr. Ampil. And lastly, PSI maintains that the
doctrine of corporate negligence is misplaced because
the proximate cause of Natividad's injury was Dr.
Ampil's negligence.
The motion lacks merit.
As earlier mentioned, the First Division, in its assailed
Decision, ruled that an employer-employee relationship
"in effect" exists between the Medical City and Dr.
Ampil. Consequently, both are jointly and severally
liable to the Aganas. This ruling proceeds from the
following ratiocination in Ramos:
“We now discuss the responsibility of
the hospital in this particular
incident. The unique practice (among
private hospitals) of filling up
specialist staff with attending and
visiting "consultants," who are
allegedly not hospital employees,
presents problems in apportioning
responsibility for negligence in
medical malpractice cases. However,
171
the difficulty is only more apparent
than real.
In the first place, hospitals exercise
significant control in the hiring and
firing of consultants and in the
conduct of their work within the
hospital premises. Doctors who apply
for "consultant" slots, visiting or
attending, are required to submit
proof of completion of residency,
their educational qualifications;
generally, evidence of accreditation
by the appropriate board (diplomate),
evidence of fellowship in most cases,
and references. These requirements
are carefully scrutinized by members
of the hospital administration or by a
review committee set up by the
hospital who either accept or reject
the application. This is particularly
true with respondent hospital.
After a physician is accepted, either
as a visiting or attending consultant,
he is normally required to attend
clinico-pathological conferences,
conduct bedside rounds for clerks,
interns and residents, moderate
grand rounds and patient audits and
perform other tasks and
responsibilities, for the privilege of
being able to maintain a clinic in the
hospital, and/or for the privilege of
admitting patients into the hospital.
In addition to these, the physician's
performance as a specialist is
generally evaluated by a peer review
committee on the basis of mortality
and morbidity statistics, and
feedback from patients, nurses,
interns and residents. A consultant
remiss in his duties, or a consultant
who regularly falls short of the
minimum standards acceptable to the
hospital or its peer review committee,
is normally politely terminated.
In other words, private hospitals hire,
fire and exercise real control over
their attending and visiting
"consultant" staff. While "consultants"
are not, technically employees, a
point which respondent hospital
asserts in denying all responsibility
for the patient's condition, the control
exercised, the hiring, and the right to
terminate consultants all fulfill the
important hallmarks of an employer-
employee relationship, with the
exception of the payment of wages. In
assessing whether such a relationship
 in fact exists, the control test is
determining. Accordingly, on the
basis of the foregoing, we rule that
for the purpose of allocating
responsibility in medical negligence
cases, an employer-employee
relationship in effect exists between
hospitals and their attending and
visiting physicians. This being the
case, the question now arises as to
whether or not respondent hospital is
solidarily liable with respondent
doctors for petitioner's condition.
The basis for holding an employer
solidarily responsible for the
negligence of its employee is found in
Article 2180 of the Civil Code which
considers a person accountable not
only for his own acts but also for
those of others based on the former's
responsibility under a relationship of
partia potestas.”
Clearly, in Ramos, the Court considered the peculiar
relationship between a hospital and its consultants on
the bases of certain factors. One such factor is the
"control test" wherein the hospital exercises control in
the hiring and firing of consultants, like Dr. Ampil, and
in the conduct of their work.
Actually, contrary to PSI's contention, the Court did not
reverse its ruling in Ramos. What it clarified was that
the De Los Santos Medical Clinic did not exercise
control over its consultant, hence, there is no employer-
employee relationship between them. Thus, despite the
granting of the said hospital's motion for
reconsideration, the doctrine in Ramos stays, i.e., for the
purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship
exists between hospitals and their consultants.
In the instant cases, PSI merely offered a general denial
of responsibility, maintaining that consultants, like Dr.
Ampil, are "independent contractors," not employees of
the hospital. Even assuming that Dr. Ampil is not an
employee of Medical City, but an independent
contractor, still the said hospital is liable to the Aganas.
In Nograles, et al. v. Capitol Medical Center, et al., through
Mr. Justice Antonio T. Carpio, the Court held:
“The question now is whether CMC
is automatically exempt from liability
considering that Dr. Estrada is an
independent contractor-physician.
In general, a hospital is not liable for
the negligence of an independent
contractor-physician. There is,
however, an exception to this
principle. The hospital may be liable
if the physician is the "ostensible"
agent of the hospital. (Jones v.
Philpott, 702 F. Supp. 1210 [1988])
This exception is also known as the
"doctrine of apparent authority."
(Sometimes referred to as the
apparent or ostensible agency theory.
[King v. Mitchell, 31 A.D.3rd 958, 819
N.Y. S.2d 169 (2006)].
xxx xxx xxx
The doctrine of apparent authority
essentially involves two factors to
determine the liability of an
independent contractor-physician.
The first factor focuses on the
hospital's manifestations and is
sometimes described as an inquiry
whether the hospital acted in a
manner which would lead a
reasonable person to conclude that
the individual who was alleged to be
negligent was an employee or agent
of the hospital. (Diggs v. Novant
Health, Inc., 628 S.E.2d 851 (2006)
citing Hylton v. Koontz, 138 N.C. App.
629 (2000). In this regard, the hospital
need not make express
representations to the patient that the
treating physician is an employee of
the hospital; rather a representation
may be general and implied. (Id.)
The doctrine of apparent authority is
a specie of the doctrine of estoppel.
Article 1431 of the Civil Code
provides that "[t]hrough estoppel, an
admission or representation is
rendered conclusive upon the person
making it, and cannot be denied or
disproved as against the person
relying thereon." Estoppel rests on
this rule: "Whether a party has, by his
own declaration, act, or omission,
intentionally and deliberately led
another to believe a particular thing
true, and to act upon such belief, he
cannot, in any litigation arising out of
such declaration, act or omission, be
permitted to falsify it. (de Castro v.
Ginete, 137 Phil. 453 [1969], citing Sec.
3, par. A, Rule 131 of the Rules of
Court. See also King v. Mitchell, 31
A.D.3rd 958, 819 N.Y.S.2d 169 [2006]).
xxx xxx xxx
The second factor focuses on the
patient's reliance. It is sometimes
characterized as an inquiry on
172
 whether the plaintiff acted in reliance
upon the conduct of the hospital or
its agent, consistent with ordinary
care and prudence. (Diggs v. Novant
Health, Inc.)”
PSI argues that the doctrine of apparent authority
cannot apply to these cases because spouses Agana
failed to establish proof of their reliance on the
representation of Medical City that Dr. Ampil is its
employee.
The argument lacks merit.
Atty. Agana categorically testified that one of the
reasons why he chose Dr. Ampil was that he knew him
to be a staff member of Medical City, a prominent and
known hospital.
Q Will you tell us what transpired
in your visit to Dr. Ampil?
A Well, I saw Dr. Ampil at the
Medical City, I know him to be a
staff member there, and I told
him about the case of my wife
and he asked me to bring my
wife over so she could be
examined. Prior to that, I have
known Dr. Ampil, first, he was
staying in front of our house, he
was a neighbor, second, my
daughter was his student in the
University of the East School of
Medicine at Ramon Magsaysay;
and when my daughter opted to
establish a hospital or a clinic,
Dr. Ampil was one of our
consultants on how to establish
that hospital. And from there, I
have known that he was a
specialist when it comes to that
illness.
Atty. Agcaoili
On that particular occasion,
April 2, 1984, what was your
reason for choosing to contact
Dr. Ampil in connection with
your wife's illness?
A First, before that, I have known
him to be a specialist on that part
of the body as a surgeon; second,
I have known him to be a staff
member of the Medical City
which is a prominent and known
hospital. And third, because he is
a neighbor, I expect more than
the usual medical service to be
given to us, than his ordinary
patients.
173
Clearly, PSI is estopped from passing the blame solely
to Dr. Ampil. Its act of displaying his name and those of
the other physicians in the public directory at the lobby
of the hospital amounts to holding out to the public that
it offers quality medical service through the listed
physicians. This justifies Atty. Agana's belief that Dr.
Ampil was a member of the hospital's staff. It must be
stressed that under the doctrine of apparent authority,
the question in every case is whether the principal has
by his voluntary act placed the agent in such a situation
that a person of ordinary prudence, conversant with
business usages and the nature of the particular
business, is justified in presuming that such agent has
authority to perform the particular act in question. In
these cases, the circumstances yield a positive answer to
the question.
The challenged Decision also anchors its ruling on the
doctrine of corporate responsibility. The duty of
providing quality medical service is no longer the sole
prerogative and responsibility of the physician. This is
because the modern hospital now tends to organize a
highly-professional medical staff whose competence
and performance need also to be monitored by the
hospital commensurate with its inherent responsibility
to provide quality medical care. 8 Such responsibility
includes the proper supervision of the members of its
medical staff. Accordingly, the hospital has the duty to
make a reasonable effort to monitor and oversee the
treatment prescribed and administered by the
physicians practicing in its premises.
Unfortunately, PSI had been remiss in its duty. It did
not conduct an immediate investigation on the reported
missing gauzes to the great prejudice and agony of its
patient. Dr. Jocson, a member of PSI's medical staff,
who testified on whether the hospital conducted an
investigation, was evasive, thus:
Q We go back to the operative
technique, this was signed by Dr.
Puruganan, was this submitted
to the hospital?
A Yes, sir, this was submitted to
the hospital with the record of
the patient.
Q Was the hospital immediately
informed about the missing
sponges?
A That is the duty of the surgeon,
sir.
Q As a witness to an untoward
incident in the operating room,
was it not your obligation, Dr., to
also report to the hospital
because you are under the
control and direction of the
hospital?
A The hospital already had the
record of the two OS missing, sir.
 Q If you place yourself in the
position of the hospital, how will
you recover.
A You do not answer my question
with another question.
Q Did the hospital do anything
about the missing gauzes?
A The hospital left it up to the
surgeon who was doing the
operation, sir.
Q Did the hospital investigate the
surgeon who did the operation?
A I am not in the position to
answer that, sir.
Q You never did hear the hospital
investigating the doctors
involved in this case of those
missing sponges, or did you hear
something?
xxx xxx xxx
A I think we already made a report
by just saying that two sponges
were missing, it is up to the
hospital to make the move.
Atty. Agana
Precisely, I am asking you if the
hospital did a move, if the
hospital did a move.
A I cannot answer that.
Court
By that answer, would you mean
to tell the Court that you were
aware if there was such a move
done by the hospital?
A I cannot answer that, your honor,
because I did not have any more
follow-up of the case that
happened until now.
The above testimony obviously shows Dr. Jocson's lack
of concern for the patients. Such conduct is reflective of
the hospital's manner of supervision. Not only did PSI
breach its duty to oversee or supervise all persons who
practice medicine within its walls, it also failed to take
an active step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the Civil
Code, but also directly liable for its own negligence
under Article 2176.
Moreover, there is merit in the trial court's finding that
the failure of PSI to conduct an investigation
"established PSI's part in the dark conspiracy of silence
and concealment about the gauzes." The following
testimony of Atty. Agana supports such findings, thus:
Q You said you relied on the
promise of Dr. Ampil and
despite the promise you were
not able to obtain the said record.
Did you go back to the record
custodian?
A I did not because I was talking to
Dr. Ampil. He promised me.
Q After your talk to Dr. Ampil, you
went to the record custodian?
A I went to the record custodian to
get the clinical record of my wife,
and I was given a portion of the
records consisting of the
findings, among them, the
entries of the dates, but not the
operating procedure and
operative report.
In sum, we find no merit in the motion for
reconsideration.
WHEREFORE, we DENY PSI's motion for
reconsideration with finality.
SO ORDERED.
Puno, C.J., Corona, Azcuna and Leonardo-de Castro, JJ.,
concur.
3. Violation of traffic rules
ARTICLE 2184. In motor vehicle mishaps, the owner
is solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of the due
diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been
found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding
two months.
If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable. (n)
UNITED STATES vs. CRAME
G.R. No. 10181, 2 March 1915, 30 Phil. 2
MORELAND, J p:
This is an appeal from a judgment of the Court of First
Instance of Manila convicting the accused of the crime
of serious physical injuries through reckless negligence.
The information under which he was tried and
convicted is as follows:
xxx xxx xxx
It appears from the evidence that on the night of the
10th of February, 1914, between 11 and 12 o'clock, the
accused, Mariano Crame, a duly-licensed chauffeur,
was driving an automobile, in which, at the time, were
Thomas M. Bill, a sailor belonging to the United States
Navy, and Indalecio Rabonsa, an apprentice to the
174
accused who, at the time of the accident, was sitting at
his side on the front seat. The automobile was passing
from Santa Ana to Manila and, at the time of the
accident, was going in a northwesterly direction. At the
same time there were two automobiles on the way from
Manila to Santa Ana, one belonging to Mr. Stuart,
driven by himself, and the other a machine without
passengers driven by a chauffeur by the name of
Miranda. The automobile driven by Stuart was a
modern Cadillac with high-powered electric lights. The
accused states that this fact, added to the other fact that
he was near the Damas Bridge at the time, induced him
to reduce the speed of the automobile at that point so
that he was, at the time of the accident, going only
about 10 miles an hour. He asserts that he suddenly
saw the form of a man in front of his automobile and
that, on seeing him, he altered the course of the
machine as much as possible in order to avoid a
collision; but that he was unable to do so, the right side
of the machine hitting the man and knocking him to the
ground. He asserts that, at the time it struck the man,
the machine was almost at a standstill, it coming to a
complete stop within about 6 feet of where the injured
man lay.
Crame, Rabonsa, and Bill placed the injured man in the
automobile and carried him to the hospital. Afterwards
they went to the police station at Paco and gave an
account of the accident. Immediately thereafter Crame
also went to the office of the superintendent of
automobiles of the Bureau of Public Works and
reported the accident.
Relative to the injuries resulting to Coombs from the
accident, it appears that he received a heavy blow in the
lower part of the back of the head which caused
ecchymosis and coagulation of blood. As a result of the
blow he was rendered unconscious and has since
remained in a state of great mental debility, with severe
pains in the head, almost complete loss of memory,
being unable to remember anything that occurred
during the accident and, at times, forgetting the names
and countenances of his most intimate friends. He
cannot be left alone and requires continual attendance.
He is described by the physician who examined and
treated him as an incurable and hopeless imbecile.
The learned trial court convicted the accused of the
crime of producing serious physical injuries by
imprudencia temeraria, setting forth as the grounds of the
conviction the following reasons:
"First, in that [before the occurrence]
the accused, having seen the soldier
Coombs crossing the street at a
certain distance in front of the
automobile. did not reduce the speed
of the automobile sufficiently, nor
attempt to stop the machinery
entirely, if that was necessary, to
avoid an accident. Second, in that it
does not appear that the accused
175
sounded his horn or whistle or used
his voice to call the attention of the
person who was crossing the street or
notify him that he should stop and
avoid being struck by the automobile.
Third and last, in that the accused
was driving in the center, or rather, a
little to the right of the center of the
street instead of on the left side
thereof."
Discussing these points the court said:
"With reference to the first ground of
negligence, the accused alleges that
he was unable to stop his machine
suddenly; but to this it may be
answered that if he had begun to stop
the machine the first moment that he
saw the soldier the accident would
undoubtedly have been avoided. . . .
What the court desires to say is that
with a speed of only 12 to 20 miles an
hour, if the accused had begun to
reduce speed in time, there is no
doubt whatever that the accident
would have been avoided and he
would have been able easily to stop
his machine in time.
"Relative to the second ground of
negligence, or the failure, in order to
prevent the injury, to sound the horn
and arrest the attention of the soldier
who was crossing the street, there is
nowhere in the case any proof or
even an allegation in favor of the
accused. He testified as a witness in
his own behalf, but he never
mentioned having sounded the horn,
nor did he give any reason why he
did not do so.
"In regard to the third ground of
negligence, the accused and his
witnesses sought to establish the fact
that, at the place where the accident
occurred, the automobile could not
pass along the left side of the street
because the street-car rails are upon
that side, and if he had attempted to
pass upon the left side of the rails the
automobile would have been thrown
into the ditch, as the street upon that
side of the street-car tracks is very
uneven and as a result the chauffeur
and his passengers would have been
exposed to a greater danger than the
one that they tried to avoid. The
court, nevertheless, is of the opinion
that this claim is not sustainable in
view of the fact that, at the place
 where the accident occurred, as has
already been said, there are two
street-car tracks. One of those tracks,
it is true, is very close to the extreme
left side of the street, but the other is
located about the center of the street.
The accused should not have been
required to drive his automobile
upon the left side of the farther track;
but it is evident that he could have
passed between this track and the
track in the center of the street. If the
accident had occurred under such
circumstances the court would have
said that it was an unavoidable
accident. But as the collison occurred
outside of the track in the center of
the street and on the right-hand side
of the street, the court believes that
the accused is the cause of said
accident.
"The court, in company with the
prosecuting attorney, the attorney for
the accused and Mariano Crame
himself, examined the place where
the accident occurred and, from a
careful examination of the place,
compared with the testimony of the
seaman Bill and the witness Stuart,
the court is convinced that the place
where the soldier was hit is not the
place indicated by the accused — that
is, between the Damas Bridge and the
McKinley Junction, just opposite a
wooden post, but at the place marked
in the plan Exhibit A by the witness
Stuart."
We are satisfied from an examination of the record that
the conclusions of the trial court are more than
sustained. The accused did not see the soldier whom he
ran down until it was too late, although the street at
that point was brilliantly lighted; he did not sound his
horn or give notice of his approach in any other
manner; he did not apply the brake or make any effort
whatever to stop; he was traveling on the wrong side of
the street at the time of the collision.
xxx xxx xxx
As we have said, the testimony and the exhibits show
that the accident occurred at or near the McKinley
Junction, where there is a waiting station, a kiosko, and
a hydrant, where many persons habitually wait to
transfer and where, as a matter of fact, even up to
midnight, many persons stroll about waiting for cars.
The defendant was aware of these facts. Moreover, he
testified himself that the street at that place was not
level, that the rails of the street-car track made it
difficult for automobiles to cross or pass over them and
that keeping to the extreme left-hand side of the street
would endanger the safety of the automobile and the
passengers. All of these are facts which require care and
diligence on the part of an automobile driver; and such
a place should be approached guardedly, with the
machine under control and with ability to stop with
reasonable quickness.
It appears clearly established by the evidence that the
accused was driving on the right-hand side of the street
when the accident happened. According to the law of
the road and the custom of the country he should have
been on the left-hand side of the street. According to
the evidence there was abundant room for him to drive
upon what may properly be called the left-hand side of
the street and still be free from danger or risk. Instead
of that he chose to take what appears from the evidence
to have been almost the extreme right-hand side of the
street. Thomas M. Bill, who was a passenger in the
automobile which ran down the soldier, testified that
the automobile at the time of the accident was traveling
on the right-hand side of the street. A. R. Stuart, who
was driving an automobile approaching the place of the
accident from the opposite direction, testified that the
victim was struck at the point marked "A" on the plan
introduced in evidence and that the automobile was
located at the point marked "B," a point indisputably on
the right-hand side of the street; that the automobile,
when it stopped after the collision, was not standing
parallel with the street but at an angle with the center
line of the street, having turned toward the left-hand
side of the street after it had run down the soldier. He
also testified that, if he had continued upon what was
to him the left-hand side of the street, he would have
run over the body of the soldier. The testimony
showing that the accused was driving on the right-hand
side of the street is corroborated by the fact that the
witness Rabonsa, who testified on the trial that the
accused was driving on the left-hand side of the street,
first declared, in his statement to the prosecuting
attorney, that, at the time of the accident, the
automobile was being driven on the right-hand side of
the street.
While it is true that the law does not draw an inference
of negligence from the mere showing that there was a
collision between a man and an automobile on a public
street but that negligence must be proved, nevertheless,
we believe it to be the rule that testimony that plaintiff,
while driving on the right-hand side of a wide road,
was overtaken by an automobile which struck the hind
wheel of his wagon, establishes a case of negligence.
(Salminen vs. Ross, 185 Fed., 997.) And a bicyclist has the
burden of disproving his negligence when he rides up
behind an- other who is walking where he has a right to
walk and, without giving any warning, strikes him with
his vehicle. (Myers vs. Hinds, 110 Mich., 300.) And we
have held in the case of Chapman vs. Underwood (27 Phil.
Rep., 374), that where, in an action to recover damages
for having been run down by defendant's automobile, it
appeared that the automobile, at the time the injury
was produced, was being driven on the wrong side of
the street, the burden of proof was on defendant to
176
establish that the accident occurred through other
causes than his negligence.
There is no evidence in the case which shows
negligence on the part of the injured soldier. The mere
fact that he was run down by an automobile does not
signify that he was negligent. At the time he was struck
he was, speaking from the direction in which the
accused was driving the automobile at the time, on the
right-hand side of the street where he had a right to be
and where the law fully protected him from vehicles
traveling in the direction in which the accused was
driving at the time of the injury. The rule which
requires travelers to look out for trains at railroad
crossings by stopping, looking and listening before they
pass over the tracks does not fix the measure of care
which a pedestrian attempting to cross a street must
use in looking out for automobiles. Negligence and
contributory negligence are matters to be proved, and
the burden is on the one alleging injury from
negligence to establish it and upon the other alleging
immunity because of contributory negligence to
establish it, unless it is shown by the plaintiff's
testimony. The injured soldier cannot be held to have
been negligent except upon evidence establishing that
fact. The beggar on his crutches has the same right to
the use of the streets of the city as has the man in his
automobile. Each is bound to the exercise of ordinary
care for his own safety, and the prevention of injury to
others, in the use thereof. (Millsaps vs. Brogdon, 32 L. R.
A. (N. S.), 1177.) This is especially true when we take
into consideration the assertion of the accused that, by
reason of the position of the street-car tracks, he was
unable to take the left-hand side of the street, which is
the side which the law requires him to take, but that it
was necessary for him to pass in the middle of the street
or a little to the right of the middle in order to make a
safe passage for the automobile and its passengers. We
have held in the case of Chapman vs. Underwood (27 Phil.
Rep., 374), a case in which the defendant's chauffeur
was driving on the wrong side of the street at the time
the accident, which was the basis of the action,
occurred, that "defendant's driver was guilty of
negligence in running upon and over the plaintiff. He
was passing an oncoming car upon the wrong side. The
plaintiff, in coming out to board the car, was not
obliged, for his own protection, to observe whether a
car was coming upon him from his left hand. He had
only to guard against those coming from the right. He
knew that, according to the law of the road, no
automobile or other vehicle coming from his left hand
should pass upon his side of the car. He needed only to
watch for cars coming from his right, as they were the
only ones under the law permitted to pass upon that
side of the street car."
We regard it as clear from the record that the accused
was driving much faster than he claims he was or else
he was negligent in not watching the street for foot
passengers, or in the handling of his automobile. It is a
matter of common knowledge that an automobile being
driven at 10 miles an hour can be stopped, if necessity
177
requires it, within 10 or 15 feet at the most. That rate of
speed is extremely low for an automobile and, with
such a speed, it can be stopped almost instantly. If,
therefore, the accused was going at the rate of 10 miles
an hour only and saw the soldier 20 feet ahead of him,
he could, without difficulty, have stopped the
automobile and avoided the accident. As a necessary
consequence, the accused was either driving at a rate of
speed much higher than that stated or else he was
negligent in not stopping his car. Furthermore, if he did
not see the soldier until too late to stop, the burden is
on him to show why he did, not. There is something
wrong when a chauffeur runs over a man who is in
plain view of the automobile for a long distance before
the point of the accident is reached. No negligence on
the part of the injured person has been shown.
Whichever way the case is looked at, whether from the
viewpoint of the failure to see the soldier in time to
avoid the accident or failure to stop or give warning by
horn or whistle, it is clear that the learned trial court
was right when it held that the accused was guilty of
negligence.
There is no competent evidence to show that the soldier
was drunk at the time of the accident; but, even if he
was drunk, it is of little consequence in the decision of
this case, it not having been shown that such
drunkenness contributed to the accident. Whatever his
condition he could easily have been seen by the
automobile driver if he had been vigilant, as he should
have been, in passing over the streets of a city and
especially in passing a place where many people
generally congregate and where the street is much used
by people on foot. It is not shown that the soldier's
drunkenness, if he was in that state, in any degree
contributed to the accident or that the accident would
have been avoided if he had been sober. We have held
in the case of Wright vs. Manila Electric Railroad and Light
Co. (28 Phil. Rep., 122):
"Mere intoxication is not negligence,
nor does the mere fact of intoxication
establish a want of ordinary care. It is
but a circumstance to be considered
with the other evidence tending to
prove negligence. It is the general
rule that it is immaterial whether a
man is drunk or sober if no want of
ordinary care or prudence can be
imputed to him, and no greater
degree of care is required to be
exercised by an intoxicated man for
his own protection than by a sober
one. If one's conduct is characterized
by a proper degree of care and
prudence, it is immaterial whether he
is drunk or sober. (Ward vs. Chicago
etc., Ry. Co., 85 Wis., 601; Houston & T.
C. Ry. Co. vs. Reason, 61 Tex., 613;
Alger vs. Lowell, 3 Allen, 402; Central
R. & Bkg. Co. vs. Phinazee, 93 Ga., 488;
Maguire vs. Middlesex R. Co., 115
 Mass., 239; Meyer vs. Pacific R. R. Co.,
40 Mo., 151; Chicago & N. W. Ry. Co.
vs. Drake, 33 III. App., 114.)"
The judgment appealed from is affirmed, with costs
against the appellant. So ordered.
Arellano, C.J., Torres and Johnson. JJ., concur.
CAEDO, ET AL. vs. YU KHE THAI, ET AL.
G.R. No. L-20392, 18 December 1968.
MAKALINTAL, J p:
As a result of a vehicular accident in which plaintiff
Marcial Caedo and several members of his family were
injured they filed this suit for recovery of damages from
the defendants. The judgment, rendered by the Court of
First Instance of Rizal on February 26, 1960 (Q-2952),
contains the following disposition:
xxx xxx xxx
There are two principal questions posed for resolution:
(1) who was responsible for the accident? and (2) if it
was defendant Rafael Bernardo, was his employer,
defendant Yu Khe Thai, solidarily liable with him? On
the first question the trial court found Rafael Bernardo
negligent; and on the second, held his employer
solidarily liable with him.
The mishap occurred at about 5:30 in the morning of
March 24, 1958 on Highway 54 (now E. de los Santos
Avenue) in the vicinity of San Lorenzo Village. Marcial
was driving his Mercury car on his way from his home
in Quezon City to the airport, where his son Ephraim
was scheduled to take a plane for Mindoro. With them
in the car were Mrs. Caedo and three daughters.
Coming from the opposite direction was the Cadillac of
Yu Khe Thai, with his driver Rafael Bernardo at the
wheel, taking the owner from his Parañaque home to
Wack Wack for his regular round of golf. The two cars
were traveling at fairly moderate speeds, considering
the condition of the road and the absence of traffic —
the Mercury at 40 to 50 kilometers per hour, and the
Cadillac at approximately 30 to 35 miles (48 to 56
kilometers). Their headlights were mutually noticeable
from a distance. Ahead of the Cadillac, going in the
same direction, was a carretela owned by a certain
Pedro Bautista. The carretela was towing another horse
by means of a short rope coiled around the rig's vertical
post on the right side and held at the other end by
Pedro's son, Julian Bautista.
Rafael Bernardo testified that he was almost upon the
rig when he saw it in front of him, only eight meters
away. This is the first clear indication of his negligence.
The carretela was provided with two lights, one on each
side, and they should have given him sufficient
warning to take the necessary precautions. And even if
he did not notice the lights, as he claimed later on at the
trial, the carretela should anyway have been visible to
him from afar if he had been careful, as it must have
been in the beam of his headlights for a considerable
while.
In the meantime the Mercury was coming on its own
lane from the opposite direction. Bernardo, instead of
slowing down or stopping altogether behind the
carretela until that lane was clear, veered to the left in
order to pass. As he did so the curved end of his car's
right rear bumper caught the forward rim of the rig's
left wheel wrenching it off and carrying it along as the
car skidded obliquely to the other lane, where it
collided with the oncoming vehicle. On his part Caedo
had seen the Cadillac on its own lane; he slackened his
speed, judged the distances in relation to the carretela
and concluded that the Cadillac would wait behind.
Bernardo, however, decided to take a gamble - beat the
Mercury to the point where it would be in line with the
carretela, or else squeeze in between them in any case.
It was a risky maneuver either way, and the risk should
have been quite obvious. Or, since the car was moving
at from 30 to 35 miles per hour (or 25 miles according to
Yu Khe Thai) it was already too late to apply the brakes
when Bernardo saw the carretela only eight meters in
front of him, and so he had to swerve to the left in spite
of the presence of the oncoming car on the opposite
lane. As it was, the clearance Bernardo gave for his car's
right side was insufficient. Its rear bumper, as already
stated, caught the wheel of the carretela and wrenched
it loose. Caedo, confronted with the unexpected
situation, tried to avoid the collision at the last moment
by going farther to the right, but was unsuccessful. The
photographs taken at the scene show that the right
wheels of his car were on the unpaved shoulder of the
road at the moment of impact.
There is no doubt at all that the collision was directly
traceable on Rafael Bernardo's negligence and that he
must be held liable for the damages suffered by the
plaintiffs. The next question is whether or not Yu Khe
Thai, as owner of the Cadillac, is solidarily liable with
the driver. The applicable law is Article 2184 of the
Civil Code, which reads:
"ART. 2184. In motor vehicle
mishaps, the owner is solidarily liable
with his driver, if the former, who
was in the vehicle, could have, by the
use of due diligence, prevented the
misfortune. It is disputably presumed
that driver was negligent, if he has
been found guilty of reckless driving
or violating traffic regulations at least
twice within the next preceding two
months."
Under the foregoing provision, if the causative factor
was the driver's negligence, the owner of the vehicle
who was present is likewise held liable if he could have
prevented the mishap by the exercise of due diligence.
The rule is not new, although formulated as law for the
first time in the new Civil Code. It was expressed
178
Chapman vs. Underwood (1914) 27 Phil. 374, where this
Court held:
". . . The same rule applies where the
owner is present, unless the negligent
acts of the driver are continued for
such a length of time as to give the
owner a reasonable opportunity to
observe them and to direct his driver
to desist therefrom. An owner who
sits in his automobile, or other
vehicle, and permits his driver to
continue in a violation of the law by
the performance of negligent acts,
after he has had a reasonable
opportunity to observe them and to
direct that the driver cease therefrom,
becomes himself responsible for such
acts. The owner of an automobile
who permits his chauffeur to drive
up the Escolta, for example, at a
speed of 60 miles an hour, without
any effort to stop him, although he
has had a reasonable opportunity to
do so, becomes himself responsible,
both criminally and civilly, for the
results produced by the acts of the
chauffeur. On the other hand, if the
driver, by a sudden act of negligence,
and without the owner having a
reasonable opportunity to prevent
the act or its continuance, injures a
person or violates the criminal law,
the owner of the automobile,
although present therein at the time
the act was committed, is not
responsible, either civilly or
criminally, therefor. The act
complained of must be continued in
the presence of the owner for such a
length of time that the owner, by his
acquiescence, makes his driver's act
his own."
The basis of the master's liability in civil law is not
respondent superior but rather the relationship of pater
familias. The theory is that ultimately the negligence of
the servant, if known to the master and susceptible of
timely correction by him, reflects his own negligence if
he fails to correct it in order to prevent injury or
damage.
In the present case the defendants' evidence is that
Rafael Bernardo had been Yu Khe Thai's driver since
1937, and before that had been employed by Yutivo
Sons Hardware Co. in the same capacity for over ten
years. During that time he had no record of violation of
traffic laws and regulations. No negligence for having
employed him at all may be imputed to his master.
Negligence on the part of the latter, if any, must be
sought in the immediate setting and circumstances of
the accident, that is, in his failure to detain the driver
179
from pursuing a course which not only gave him clear
notice of the danger but also sufficient time to act upon
it. We do not see that such negligence may be imputed.
The car, as has been stated, was not running at an
unreasonable speed. The road was wide and open, and
devoid of traffic that early morning. There was no
reason for the car owner to be in any special state of
alert. He had reason to rely on the skill and experience
of his driver. He became aware of the presence of the
carretela when his car was only twelve meters behind
it, but then his failure to see it earlier did not constitute
negligence, for he was not himself at the wheel. And
even when he did see it at the distance, he could not
have anticipated his driver's sudden decision to pass
the carretela on its left side in spite of the fact that
another car was approaching from the opposite
direction. The time element was such that there was no
reasonable opportunity for Yu Khe Thai to assess the
risks involved and warn the driver accordingly. The
thought that entered his mind, he said, was that if he
sounded a sudden warning it might only make the
other man nervous and make the situation worse. It
was a thought that, wise or not, connotes no absence of
that due diligence required by law to prevent the
misfortune.
The test of imputed negligence under Article 2184 of
the Civil Code is, to a great degree, necessarily
subjective. Car owners are not held to a uniform and
inflexible standard of diligence as are professional
drivers. In many cases they refrain from driving their
own cars and instead hire other persons to drive for
them precisely because they are not trained or endowed
with sufficient discernment to know the rules of traffic
or to appreciate the relative dangers posed by the
different situations that are continually encountered on
the road. What would be a negligent omission under
aforesaid Article on the part of a car owner who is in
the prime of age and knows how to handle a motor
vehicle is not necessarily so on the part, say, of an old
and infirm person who is not similarly equipped.
The law does not require that a person must possess a
certain measure of skill or proficiency either in the
mechanics of driving or in the observance of traffic
rules before he may own a motor vehicle. The test of his
negligence, within the meaning of Article 2184, is his
omission to do that which the evidence of his own
senses tells him he should do in order to avoid the
accident. And as far as perception is concerned, absent
a minimum level imposed by law, a maneuver that
appears to be fraught with danger to one passenger
may appear to be entirely safe and commonplace to
another. Were the law to require a uniform standard of
perceptiveness, employment of professional drivers by
car owners who, by their very inadequacies, have real
need of drivers' services, would be effectively
prescribed.
xxx xxx xxx
WHEREFORE, the judgment appealed from is modified
in the sense of declaring defendant-appellant Yu Khe
Thai free from liability, and is otherwise affirmed with
respect to defendant Rafael Bernardo, with costs against
the latter.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar,
Sanchez, Ruiz Castro and Capistrano, JJ., concur.
Fernando, J., did not take part.
BATANGAS LAGUNA TAYABAS BUS COMPANY,
ET AL. vs. INTERMEDIATE APPELLATE COURT,
ET AL.
G.R. Nos. 74387-90, 14 November 1988, 167 SCRA 379
PARAS, J p:
Before Us is a Petition to Review by Certiorari, the
decision 1 of the respondent appellate court which
affirmed with modification the joint decision of the trial
court in four (4) cases involving similar facts and issues,
finding favorably for the plaintiffs (private respondents
herein), the dispositive portion of said appellate
judgment reading as follows:
xxx xxx xxx
From the records of the case We have gathered the
following antecedent facts:
The collision between Bus No. 1046 of the Batangas
Laguna Tayabas Bus Company (BLTB, for brevity)
driven by Armando Pon and Bus No. 404 of Superlines
Transportation Company (Superlines, for brevity)
driven by Ruben Dasco took place at the highway
traversing Barangay Isabong, Tayabas, Quezon in the
afternoon of August 11, 1978, which collision resulted
in the death of Aniceto Rosales, Francisco Pamfilo and
Romeo Neri and in several injuries to Nena Rosales
(wife of Anecito) and Baylon Sales, all passengers of the
BLTB Bus No. 1046. The evidence shows that as BLTB
Bus No. 1046 was negotiating the bend of the highway,
it tried to overtake a Ford Fiera car just as Bus No. 404
of Superlines was coming from the opposite direction.
Seeing thus, Armando Pon (driver of the BLTB Bus)
made a belated attempt to slacken the speed of his bus
and tried to return to his proper lane. It was an
unsuccessful try as the two (2) buses collided with each
other.
Nena Vda. de Rosales and Baylon Sales and the
surviving heirs of the deceased Francisco Pamfilo,
Aniceto Rosales and Romeo Neri instituted separate
cases in the Court of First Instance of Marinduque
against BLTB and Superlines together with their
respective drivers praying for damages, attorney's fees
and litigation expenses plus costs. Criminal cases
against the drivers of the two buses were filed in the
Court of First Instance of Quezon.
Defendants BLTB and Superlines, together with their
drivers Pon and Dasco, denied liability by claiming that
they exercised due care and diligence and shifted the
fault, against each other. They all interposed
counterclaims against the plaintiffs and crossclaims
against each other.
After trial on the merits, the lower court exonerated
defendants Superlines and its driver Dasco from
liability and attributed sole responsibility to defendants
BLTB and its driver Pon, and ordered them jointly and
severally to pay damages to the plaintiffs. Defendants
BLTB and Armando Pon appealed from the decision of
the lower court to respondent appellate court which
affirmed with modification the judgment of the lower
court as earlier stated.
xxx xxx xxx
Petitioners' contentions deserve no merit. A reading of
the respondent court's decision shows that it anchored
petitioners' liability both in culpa contractual and culpa
aquiliana, to wit:
"The proximate cause of the collision
resulting in the death of three and
injuries to two of the passengers of
BLTB was the negligence of the
driver of the BLTB bus, who
recklessly operated and drove said
bus by overtaking a Ford Fiera car as
he was negotiating the ascending
bend of the highway (tsn, October 4,
1979), pp. 9-10, 35, 36, 61; Exhibit 6
Superlines, p. 47) which was divided
into two lanes by a continuous yellow
strip (tsn, October 4, 1979, p. 36). The
driver of the BLTB bus admitted in
his cross-examination that the
continuous yellow line on the
ascending bend of the highway
signifies a no-overtaking zone (tsn,
October 4, 1979, p. 36). It is no
surprise then that the driver of the
Superlines bus was exonerated by the
lower court. He had a valid reason to
presuppose that no one would
overtake in such a dangerous
situation. These facts show that
patient imprudence of the BLTB
driver.
It is well settled that a driver
abandoning his proper lane for the
purpose of overtaking another
vehicle in ordinary situation has the
duty to see that the road is clear and
not to proceed if he can not do so in
safety (People v. Enriquez, 40 O.G.
No. 5, 984).
180
 '. . . Before attempting to pass the
vehicle ahead, the rear driver must
see that the road is clear and if there
is no sufficient room for a safe
passage, or the driver ahead does not
turn out so as to afford opportunity
to pass, or if, after attempting to pass,
the driver of the overtaking vehicle
finds that he cannot make the
passage in safety, the latter must
slacken his speed so as to avoid the
danger of a collision, even bringing
his car to a stop if necessary.' (3-4
Huddy Encyclopedia of Automobile
Law, Sec. 212, p. 195).
"The above rule becomes more
particularly applicable in this case
when the overtaking took place on an
ascending curved highway divided
into two lanes by a continuous yellow
line. Appellant Pon should have
remembered that:
'When a motor vehicle is
approaching or rounding a
curve there is special necessity
for keeping to the light side of
the road and the driver has not
the right to drive on the left
hand side relying upon having
time to turn to the right if a car
is approaching from the
opposite direction comes into
view.' (42 C.J. 42 906)
'Unless there is proof to the
contrary, it is presumed that a
person driving a motor vehicle
has been negligent if at the
time of the mishap, he was
violating any traffic
regulation.' (Art. 2165, Civil
Code).
"In failing to observe these simple
precautions, BLTB's driver
undoubtedly failed to act with the
diligence demanded by the
circumstances.
"We now come to the subject of
liability of the appellants.
"For his own negligence in recklessly
driving the truck owned by his
employer, appellant Armando Pon is
primarily liable (Article 2176, Civil
Code).
"On the other hand the liability of
Pon's employer, appellant BLTB, is
181
also primal y, direct and immediate
in view of the fact that the death of or
injuries to its passengers was through
the negligence of its employee
(Marahan v. Mendoza, 24 SCRA 888,
894), and such liability does not cease
even upon proof that BLTB had
exercised all. the diligence of a good
father of a family in the selection and
supervision of its employees (Article
1759, Civil Code).
"The common carrier's liability for the
death of or injuries to its passengers
is based on its contractual obligation
to carry its passengers safely to their
destination. That obligation is so
serious that the Civil Code requires
"utmost diligence of very cautious
person (Article 1755, Civil Code).
They are presumed to have been at
fault or to have acted negligently
unless they prove that they have
observed extraordinary diligence"
(Article 1756, Civil Code). In the
present case, the appellants have
failed to prove extraordinary
diligence. Indeed, this legal
presumption was confirmed by the
fact that the bus driver of BLTB was
negligent. It must follow that both the
driver and the owner must answer
for injuries or death to its passengers.
"The liability of BLTB is also
solidarily with its driver (Viluan v.
Court of Appeals, 16 SCRA 742, 747)
even though the liability of the driver
springs from quasi delict while that
of the bus company from contract."
pp. 17-19, Rollo)
Conclusively therefore in consideration of the foregoing
findings of the respondent appellate court it is settled
that the proximate cause of the collision resulting in the
death of three and injuries to two of the passengers of
BLTB was the sole negligence of the driver of the BLTB
Bus, who recklessly operated and drove said bus in a
lane where overtaking is not allowed by Traffic Rules
and Regulations. Such negligence and recklessness is
binding against petitioner BLTB, more so when We
consider the fact that in an action based on a contract of
carriage, the court need not make an express finding of
fault or negligence on the part of the carrier in order to
hold it responsible for the payment of the damages
sought by the passenger. By the contract of carriage, the
carrier BLTB assumed the express obligation to
transport the passengers to their destination safely and
to observe extraordinary diligence with a due regard
for all the circumstances, and any injury that might be
suffered by its passengers is right away attributable to
the fault or negligence of the carrier (Art. 1756, New (truck) towards Tagaytay City. The truck was owned by
Civil Code). respondent Rodolfo de Silva (de Silva).

Petitioners also contend that "a common carrier is not
an absolute insurer against all risks of travel and are not
liable for acts or accidents which cannot be foreseen or
inevitable and that responsibility of a common carrier
for the safety of its passenger prescribed in Articles
1733 and 1755 of the New Civil Code is not susceptible
of a precise and definite formulation." (p. 13, Rollo)
Petitioners' contention holds no water because they had
totally failed to point out any factual basis for their
defense of force majeure in the light of the undisputed
fact that the cause of the collision was the sole
negligence and recklessness of petitioner Armando
Pon. For the defense of force majeure or act of God to
prosper the accident must be due to natural causes and
exclusively without human intervention.
Along the highway and the road leading to the Orchard
Golf Course, Bedania negotiated a U-turn. When the
truck entered the opposite lane of the highway,
Genaro's car hit the right portion of the truck. The truck
dragged Genaro's car some five meters to the right of
the road.
As a consequence, all the passengers of the car were
rushed to the De La Salle University Medical Center in
Dasmariñas, Cavite for treatment. Because of severe
injuries, Antero was later transferred to the Philippine
General Hospital. However, on 3 November 1994,
Antero died due to the injuries he sustained from the
collision. The car was a total wreck while the truck
sustained minor damage.

WHEREFORE, premises considered, the appealed On 24 April 1995, petitioners Genaro, Llanillo,
decision is hereby AFFIRMED. Dignadice, and the heirs of Antero instituted a
complaint for damages based on quasi-delict against
SO ORDERED. respondents Bedania and de Silva.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., On 5 December 2000, the trial court rendered a decision
concur. in favor of petitioners. The trial court found Bedania
grossly negligent for recklessly maneuvering the truck
FGU INSURANCE CORPORATION vs. by making a sudden U-turn in the highway without
COURT OF APPEALS, ET AL. due regard to traffic rules and the safety of other
G.R. No. 118889, 23 March 1998, 287 SCRA 718 motorists. The trial court also declared de Silva grossly
negligent in the selection and supervision of his driver,
See supra. Bedania. The dispositive portion of the decision
provides:
GUILLANG, ET AL. vs. BEDANIA, ET AL.
G.R. No. 162987, 21 May 2009 WHEREFORE, judgment is hereby
rendered ordering defendants
CARPIO, J p: Rodolfo A. Bedania and Rodolfo de
Silva, jointly and severally, to pay
The Case plaintiffs, as follows:

This is a petition for review of the 3 June 2003 Decision 1. The sum of P508,566.03
and the 23 March 2004 Resolution 3 of the Court of representing the damage/repair
Appeals in CA-G.R. CV No. 69289. The 3 June 2003 costs of the Toyota to plaintiff
Decision set aside the 5 December 2000 Decision 4 of Genaro M. Guillang.
the Regional Trial Court, Branch 30, Manila (trial court).
The 23 March 2004 Resolution denied the motion for 2. The sum of P50,000.00 for the
reconsideration. death of Antero Guillang plus
P185,000.00 for his burial
The Facts expenses, to the heirs of Antero
Guillang.
On 25 October 1994, at about 5:45 in the afternoon,
petitioner Genaro M. Guillang (Genaro) was driving his 3. For hospital and medical
brand new Toyota Corolla GLI sedan with conduction expenses as reflected in Exhibits
sticker no. 54-DFT (car) along Emilio Aguinaldo E, E-1 to E-30 to plaintiffs Genaro
Highway (highway) in Cavite. Genaro, Antero Guillang M. Guillang, Jose Dignadice and
(Antero), Felipe Jurilla, Jose Dignadice (Dignadice), and Alvin Llanillo.
Alvin Llanillo (Llanillo) had all just left from Golden
City, Dasmariñas, Cavite, and were on their way to 4. The sum of P50,000.00 as moral
Manila. At the other side of the highway, respondent damages for the heirs of the
Rodolfo A. Bedania (Bedania) was driving a ten- deceased Antero Guillang.
wheeler Isuzu cargo truck with plate no. CAC-923

182
 5. The sum of P50,000.00 as moral
damages each to plaintiffs Jose
Dignadice, Alvin Llanillo and
Genaro Guillang.
6. The sum of P50,000.00 as
exemplary damages.
7. The sum of P100,000.00 as and
for attorney's fees.
8. The costs of the suit.
SO ORDERED.
Respondents appealed to the Court of Appeals.
On 3 June 2003, the Court of Appeals rendered its
decision in favor of respondents. The dispositive
portion of the decision provides:
IN VIEW OF ALL THE
FOREGOING, the appealed decision
is REVERSED and SET ASIDE. The
complaint of the herein appellees in
Civil Case No. 95-73666 is
DISMISSED, for lack of merit. The
appellants' counterclaims in the
instant case are likewise DISMISSED.
No pronouncement as to cost.
SO ORDERED.
Petitioners filed a motion for reconsideration. On 23
March 2004, the Court of Appeals denied the motion.
Hence, this petition.
The Ruling of the Regional Trial Court
According to the trial court, there is a presumption that
a person driving a motor vehicle has been negligent if
at the time of the mishap, he was violating any traffic
regulation. In this case, the trial court found that the
Traffic Accident Investigation Report (report),
corroborated by the testimonies of the witnesses,
showed that the truck committed a traffic violation by
executing a U-turn without signal lights. The trial court
also declared that Bedania violated Sections 45 (b), 48,
and 54 of Republic Act No. 4136 when he executed the
sudden U-turn. The trial court added that Bedania
violated another traffic rule when he abandoned the
victims after the collision. The trial court concluded that
Bedania was grossly negligent in his driving and held
him liable for damages.
Moreover, the trial court found that Bedania did not
make the U-turn at an intersection. According to the
trial court, vehicles trying to maneuver to change
directions must seek an intersection where it is safer to
maneuver and not recklessly make a U-turn in a
highway. The trial court said Bedania should have
183
observed extreme caution in making a U-turn because it
was unexpected that a long cargo truck would execute
a U-turn along the highway.
The trial court also said that Bedania's gross negligence
raised the legal presumption that de Silva, as Bedania's
employer, was negligent in the selection and
supervision of his employees. The trial court said that,
under Articles 2176 and 2180 of the Civil Code, de
Silva's liability was based on culpa aquiliana which
holds the employer primarily liable for tortious acts of
his employees, subject to the defense that he exercised
all the diligence of a good father of a family in the
selection and supervision of his employees. The trial
court ruled that de Silva failed to prove this defense
and, consequently, held him liable for damages.
The Ruling of the Court of Appeals
The Court of Appeals reversed the trial court's decision
and said that the trial court overlooked substantial facts
and circumstances which, if properly considered,
would justify a different conclusion and alter the results
of the case.
xxx xxx xxx
The Court of Appeals concluded that the collision was
caused by Genaro's negligence. The Court of Appeals
declared that the truck arrived at the intersection way
ahead of the car and had already executed the U-turn
when the car, traveling at a fast speed, hit the truck's
side. The Court of Appeals added that considering the
time and the favorable visibility of the road and the
road conditions, Genaro, if he was alert, had ample
time to react to the changing conditions of the road. The
Court of Appeals found no reason for Genaro not to be
prudent because he was approaching an intersection
and there was a great possibility that vehicles would be
traversing the intersection either going to or from
Orchard Golf Course. The Court of Appeals said
Genaro should have slowed down upon reaching the
intersection. The Court of Appeals concluded that
Genaro's failure to observe the necessary precautions
was the proximate cause of Antero's death and the
injuries of the petitioners.
xxx xxx xxx
The issue in this case is who is liable for the damages
suffered by petitioners. The trial court held Bedania and
de Silva, as Bedania's employer, liable because the
proximate cause of the collision was the sudden U-turn
executed by Bedania without any signal lights. On the
other hand, the Court of Appeals reversed the trial
court's decision and held Genaro liable because the
proximate cause of the collision was Genaro's failure to
stop the car despite seeing that Bedania was making a
U-turn.
The Ruling of the Court
The principle is well-established that this Court is not a
trier of facts. Therefore, in an appeal by certiorari under
Rule 45 of the Rules of Court, only questions of law
may be raised. The resolution of factual issues is the
function of the lower courts whose findings on these
matters are received with respect and are, as a rule,
binding on this Court.
However, this rule is subject to certain exceptions. One
of these is when the findings of the appellate court are
contrary to those of the trial court. Findings of fact of
the trial court and the Court of Appeals may also be set
aside when such findings are not supported by the
evidence or where the lower courts' conclusions are
based on a misapprehension of facts. Such is the
situation in this case and we shall re-examine the facts
and evidence presented before the lower courts.
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 relations 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 the 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 the plaintiff.
There is no dispute that petitioners suffered damages
because of the collision. However, the issues on
negligence and proximate cause are disputed.
On the Presumption of Negligence and Proximate Cause
Negligence is defined as the failure to observe for the
protection of the interest of another person that degree
of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
person suffers injury. In Picart v. Smith, we held that the
test of negligence is whether the defendant in doing the
alleged negligent act used that reasonable care and
caution which an ordinary person would have used in
the same situation.
The conclusion of the Court of Appeals that Genaro
was negligent is not supported by the evidence on
record. In ruling that Genaro was negligent, the Court
of Appeals gave weight and credence to Videna's
testimony. However, we find that Videna's testimony
was inconsistent with the police records and report that
he made on the day of the collision. First, Videna
testified that the car was running fast and overtook
another vehicle that already gave way to the truck. But
this was not indicated in either the report or the police
records. Moreover, if the car was speeding, there
should have been skid marks on the road when Genaro
stepped on the brakes to avoid the collision. But the
sketch of the accident showed no skid marks made by
the car. Second, Videna testified that the petitioners
came from a drinking spree because he was able to
smell liquor. But in the report, Videna indicated that the
condition of Genaro was "normal". Videna did not
indicate in the report that Genaro "had been drinking
liquor" or that Genaro "was obviously drunk". Third,
Videna testified that when he arrived at the scene,
Bedania was inside his truck. This contradicts the police
records where Videna stated that after the collision
Bedania escaped and abandoned the victims. The police
records also showed that Bedania was arrested by the
police at his barracks in Anabu, Imus, Cavite and was
turned over to the police only on 26 October 1994.
Under Article 2185 of the Civil Code, unless there is
proof to the contrary, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was
violating any traffic regulation.
In this case, the report showed that the truck, while
making the U-turn, failed to signal, a violation of traffic
rules. The police records also stated that, after the
collision, Bedania escaped and abandoned the
petitioners and his truck. This is another violation of a
traffic regulation. Therefore, the presumption arises
that Bedania was negligent at the time of the mishap.
The evidence presented in this case also does not
support the conclusion of the Court of Appeals that the
truck had already executed the U-turn before the
impact occurred. If the truck had fully made the U-turn,
it should have been hit on its rear. If the truck had
already negotiated even half of the turn and is almost
on the other side of the highway, then the truck should
have been hit in the middle portion of the trailer or
cargo compartment. But the evidence clearly shows,
and the Court of Appeals even declared, that the car hit
the truck's gas tank, located at the truck's right middle
portion, which disproves the conclusion of the Court of
Appeals that the truck had already executed the U-turn
when it was hit by the car.
Moreover, the Court of Appeals said that the point of
impact was on the lane where the car was cruising.
Therefore, the car had every right to be on that road
and the car had the right of way over the truck that was
making a U-turn. Clearly, the truck encroached upon
the car's lane when it suddenly made the U-turn.
The Court of Appeals also concluded that Bedania
made the U-turn at an intersection. Again, this is not
supported by the evidence on record. The police sketch
does not indicate an intersection and only shows that
there was a road leading to the Orchard Golf Course
near the place of the collision. Furthermore, U-turns are
generally not advisable particularly on major streets.
Contrary to Videna's testimony, it is not normal for a
truck to make a U-turn on a highway. We agree with
the trial court that if Bedania wanted to change
direction, he should seek an intersection where it is
safer to maneuver the truck. Bedania should have also
turned on his signal lights and made sure that the
highway was clear of vehicles from the opposite
direction before executing the U-turn.
184

The finding of the Court of Appeals that it was not yet
dark when the collision occurred is also not supported
by the evidence on record. The report stated that the
daylight condition at the time of the collision was
"darkness".
Contrary to the conclusion of the Court of Appeals, the
sheer size of the truck does not make it improbable for
the truck to execute a sudden U-turn. The trial court's
decision did not state that the truck was traveling at a
fast speed when it made the U-turn. The trial court said
the truck made a "sudden" U-turn, meaning the U-turn
was made unexpectedly and with no warning, as
shown by the fact that the truck's signal lights were not
turned on.
Clearly, Bedania's negligence was the proximate cause
of the collision which claimed the life of Antero and
injured the petitioners. Proximate cause is that which,
in the natural and continuous sequence, unbroken by
any efficient, intervening cause, produces the injury,
and without which the result would not have occurred.
40 The cause of the collision is traceable to the negligent
act of Bedania for if the U-turn was executed with the
proper precaution, the mishap in all probability would
not have happened. The sudden U-turn of the truck
without signal lights posed a serious risk to oncoming
motorists. Bedania failed to prevent or minimize that
risk. The truck's sudden U-turn triggered a series of
events that led to the collision and, ultimately, to the
death of Antero and the injuries of petitioners.
We agree with the trial court that de Silva, as Bedania's
employer, is also liable for the damages suffered by
petitioners. De Silva failed to prove that he exercised all
the diligence of a good father of a family in the selection
and supervision of his employees.
On the Award of Damages and Attorney's Fees
According to prevailing jurisprudence, civil indemnity
for death caused by a quasi-delict is pegged at P50,000.
Moral damages in the amount of P50,000 is also
awarded to the heirs of the deceased taking into
consideration the pain and anguish they suffered.
Bienvenido Guillang (Bienvenido), Antero's son,
testified that Sofia, Antero's wife and his mother,
became depressed after Antero's death and that Sofia
died a year after. Bienvenido also testified on the pain
and anguish their family suffered as a consequence of
their father's death. We sustain the trial court's award
of P50,000 as indemnity for death and P50,000 as moral
damages to the heirs of Antero.
As to funeral and burial expenses, the court can only
award such amount as are supported by proper
receipts. In this case, petitioners proved funeral and
burial expenses of P55,000 as evidenced by Receipt No.
1082, P65,000 as evidenced by Receipt No. 1146 and
P15,000 as evidenced by Receipt No. 1064, all issued by
the Manila South Cemetery Association, Inc.,
185
aggregating P135,000. We reduce the trial court's award
of funeral and burial expenses from P185,000 to
P135,000.
As to hospitalization expenses, only substantiated and
proven expenses, or those that appear to have been
genuinely incurred in connection with the
hospitalization of the victims will be recognized in
court. In this case, the trial court did not specify the
amount of hospitalization expenses to be awarded to
the petitioners. Since petitioners presented receipts for
hospitalization expenses during the trial, we will
determine the proper amounts to be awarded to each of
them. We award hospitalization expenses of P27,000.to
the heirs of Antero, P10,881.60 to Llanillo, P5,436.77 to
Dignadice, and P300 to Genaro because these are the
amounts duly substantiated by receipts.
We affirm the trial court's award of P508,566.03 for the
repair of the car. The Court notes that there is no
dispute that Genaro was driving a brand new Toyota
Corolla GLI sedan and that, after the collision, the car
was a total wreck. In this case, the repair order
presented by Genaro is sufficient proof of the damages
sustained by the car.
Moral damages may be recovered in quasi-delicts
causing physical injuries. However, in accordance with
prevailing jurisprudence, we reduce the award of moral
damages from P50,000 to P30,000 each to Llanillo,
Dignadice, and Genaro since they only suffered
physical injuries brought about by the collision.
In quasi-delicts, exemplary damages may be granted if
the defendant acted with gross negligence. While the
amount of exemplary damages need not be proved, the
plaintiff must show that he is entitled to moral,
temperate or compensatory damages before the court
may consider the question of whether or not exemplary
damages should be awarded. In this case, Bedania was
grossly negligent in suddenly making a U-turn in the
highway without signal lights. To serve as an example
for the public good, we affirm the trial court's award of
exemplary damages in the amount of P50,000.
Finally, we affirm the trial court's award of attorney's
fees in the amount of P100,000. Under Article 2208 of
the Civil Code, attorney's fees may be recovered when,
as in this case, exemplary damages are awarded.
WHEREFORE, we REVERSE the 3 June 2003 Decision
and 23 March 2004 Resolution of the Court of Appeals
in CA-G.R. CV No. 69289. We REINSTATE with
MODIFICATIONS the 5 December 2000 Decision of the
Regional Trial Court, Branch 30, Manila. We ORDER
Rodolfo Bedania and Rodolfo de Silva, jointly and
severally, to pay the following amounts:
1. Funeral and Burial Expenses of P135,000 to the
heirs of Antero Guillang; HAISEa
2. Hospitalization Expenses of P27,000.98 to the heirs
of Antero Guillang, P10,881.60 to Alvin Llanillo,
 P5,436.77 to Jose Dignadice, and P300 to Genaro
Guillang; and
3. Moral damages of P30,000 each to Alvin Llanillo,
Jose Dignadice, and Genaro Guillang.
SO ORDERED.
Puno, C.J., Corona, Leonardo-de Castro and Bersamin,
JJ., concur.
4. Dangerous weapons and substances
ARTICLE 2188. There is prima facie presumption of
negligence on the part of the defendant if the death or
injury results from his possession of dangerous
weapons or substances, such as firearms and poison,
except when the possession or use thereof is
indispensable in his occupation or business. (n)
3. DEFENSES
a. Contributory negligence
ARTICLE 2179. When the plaintiff's own negligence
was the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence was
only contributory, the immediate and proximate cause
of the injury being the defendant's lack of due care,
the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded. (n)
M. H., RAKES vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY
G.R. No. L-1719, 23 January 1907, 7 Phil. 359
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 first 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 fish 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 first among them is the standard of duty
which we shall establish in our jurisprudence on the
part of employees toward employees.
xxx xxx xxx
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
186
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 first point, the depression in the track night
indicate either a serious or a rival difficulty. 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 testified 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 findings 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 specific.
While the judge remarks that the evidence does not
justify the finding 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
specific finding upon the instruction given by the
defendant to its employees to walk only upon the
187
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 findings 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 officers 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
qualification, which has grown up in
recent years (having been first
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 first 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 efficient 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 flags, when the latter
must have perceived beforehand the danger attending
the work.
None of those cases define 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 Quebec, 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 find 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 indemnification shall be
reduced in the first 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.)
188
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 difficult a nice balancing of
responsibilities and which demanded an inflexible
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
189
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 finally adopted
in Spain or in other countries under the stress and
counter stress of novel schemers of legislation, we find
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.
Difficulty seems to be apprehended in deciding which
acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction
must be 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, fixing 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.
TAYLOR vs. THE MANILA ELECTRIC
RAILROAD AND LIGHT COMPANY
G.R. No. 4977, 22 March 1910, 16 Phil. 8
CARSON, J p:
An action to recover damages for the loss of an eye and
other injuries, instituted by David Taylor, a minor, by
his father, his nearest relative.
The defendant is a foreign corporation engaged in the
operation of a street railway and an electric light system
in the city of Manila. Its power plant is situated at the
eastern end of a small island in the Pasig River within
the city of Manila, known as the Isla del Provisor. The
power plant may be reached by boat or by crossing a
footbridge, impassable for vehicles, at the westerly end
of the island.
The plaintiff, David Taylor, was at the same time when
he received the injuries complained of, 15 years of age,
the son of a mechanical engineer, more mature than the
average boy of his age, and having considerable
aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy
named Manuel Claparols, about 12 years of age,
crossed the footbridge of the Isla del Provisor, for the
purpose of visiting one Murphy, an employee of the
defendant, who had promised to make them a cylinder
for a miniature engine. Finding on inquiry that Mr.
Murphy was not in his quarters, the boys, impelled
apparently by youthful curiosity and perhaps by the
unusual interest which both seem to have taken in
machinery, spent some time in wandering about the
company's premises. The visit made on a Sunday
afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where
they had asked for Mr. Murphy.
After watching the operation of the traveling crane
used in handling the defendant's coal, they walked
across the open space in the neighborhood of the place
where the company dumped the cinders and ashes
from its furnaces. Here they found some twenty or
thirty brass fulminating caps scattered on the ground.
These caps are approximately of the size and
appearance of small pistol cartridges and each has
attached to it two long thin wires by means of which it
may be discharged by the use of electricity. They are
intended for use in the explosion of blasting charges of
dynamite, and have in themselves considerable
explosive power. After some discussion as to the
ownership of caps, and their right to take them, the
boys picked up all they could find, hung them of a
stick, of which each took one end, and carried them
home. After crossing the footbridge, they met a little
girl named Jessie Adrian, less than 9 years old, and all
three went to the home of the boy Manuel. The boys
then made a series of experiments with the caps. They
thrust the ends of the wires into an electric light socket
and obtained no result. They next tried to break the cap
with a stone and failed. Manuel looked for a hammer,
but could not find one. They then opened one of the
caps with a knife, and finding that it was filled with a
yellowish substance they got matches, and David held
the cap while Manuel applied a lighted match to the
contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who, when the boys
proposed purring a match to the contents of the cap,
became frightened and started to run away, received a
slight cut in the neck. Manuel had his hand burned and
wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his
right eye to such an extent as to necessitate its removal
by the surgeons who were called in to care for his
wounds.
The evidence does not definitely and conclusively
disclose how the caps came to be on the defendant's
premises, not how long they had been there when the
boys found them. It appeared, however, that some
months before the accident, during the construction of
the defendant's plant, detonating caps of the same kind
as those found by the boys were used in sinking a well
at the power plant near the place where the caps were
found; and it also appears that at or about the time
when these caps were found, similar caps were in use
in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when
found appeared to the boys who picked them up to
have been lying there for a considerable time, and from
the place where they were found would seem to have
been discarded as defective or worthless and fir only to
be thrown upon the rubbish heap.
No measures seem to have been adapted by the
defendant company to prohibit or prevent visitors from
entering and walking about its premises unattended,
when they felt disposed as to do. As admitted in
defendant counsel's brief, "it is undoubtedly true that
children in their play sometimes crossed the footbridge
to the island;" and, we may add, roamed about at will
on the unenclosed premises of the defendant, in the
neighborhood of the place where the caps were found.
There is no evidence that any effort ever was made to
forbid these children from visiting the defendant
company's premises, although it must be assumed that
the company or its employees were aware of the fact
that they not infrequently did so.
xxx xxx xxx
We agree with counsel for appellant that under the
Civil Code, as under the generally accepted doctrine in
the United States, the plaintiff in an action such as that
under consideration, in order to establish his right to a
recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must
respond, was guilty.
(3) The connection of cause and effect between the
negligence and the damage.
The propositions are, or course, elementary, and do not
admit of discussion, the real difficulty arising in the
application of these principles to the particular facts
developed in the case under consideration.
It is clear that the accident could not have happened
had not the fulminating caps been left exposed at the
point where they were found, or if their owner had
exercised due care in keeping them in a appropriate
place; but it is equally clear that plaintiff would not
190
have been injured had he not, for his own pleasure and
convenience, entered upon defendant's premised, and
strolled around thereon without the express permission
of the defendant, and had he not picked up and carried
away the property of the defendant which he found on
its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its
contents.
But counsel for plaintiff contends that because of
plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of
his action between the negligent act of defendant in
leaving the caps exposed on its premises and the
accident which resulted in his injury should not be held
to have contributed in any wise accident, which should
be deemed to be the direct result of defendant's
negligence in leaving the caps exposed at the pace
where they were found by the plaintiff, and this latter
the proximate cause of the accident which occasioned
the injuries sustained by him.
In support of his contention, counsel for plaintiff relied
on the doctrine laid down in many of the courts of last
result in the United States in the cases known as the
"Torpedo" and "Turntable" cases, and the cases based
thereon.
In the typical cases, the question involved has been
whether a railroad company is liable for an injury
received by an infant of tender years, who from mere
idle curiosity, or for purposes of amusement, enters
upon the railroad company's premises, at a place where
the railroad company's premises, at a place where the
railroad company knew, or had a good reason to
suppose, children who would likely to come, and there
found explosive signal torpedoes left exposed by the
railroad company's employees, one of which when
carried away by the visitor, exploded and injured him;
or where such infant found upon the premises a
dangerous machine, such as a turntable left in such
condition as to make it probable that children in
playing with it would be exposed to accident or injury
therefrom and where the infant did in fact suffer injury
in playing with such machine.
In these, and in a great variety of similar cases, the great
weight of authority holds the owner of the premises
liable.
As laid down in Railroad Co. vs. Stout ( 17 Wall. (84
U.S.), 657), (wherein the principal question was
whether a railroad company was liable for an injury
received by an infant while upon its premises, from idle
curiosity, or for purposed of amusement, if such injury
was, under the circumstances, attributable to the
negligence of the company), the principles on which
these cases turn are that "while railroad company is not
bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it
owes to passengers conveyed by it, it is not exempt
from responsibility to such strangers for injuries arising
191
from its negligence or from its tortious acts;" and that
"the conduct of an infant of tender years is not to be
judged by the same rule which governs that of an adult.
While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting
from the fault or negligence of another he must himself
have been free from fault, such is not the rule in regard
to an infant of tender years. The care and caution
required of a child is according to his maturity and
capacity only, and this is to be determined in such case
by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout
was vigorously controverted and sharply criticized in
severally state courts, and the supreme court of
Michigan in the case of Ryan vs. Towar (128 Mich., 463)
formally repudiated and disapproved the doctrine of
the Turntable cased, especially that laid down in
Railroad Company vs. Stout, in a very able decision
wherein it held, in the language of the syllabus: (1) That
the owner of land is not liable to trespassers thereon for
injuries sustained by them, not due to his wanton or
willful acts; (2) that no exception to this rule exists in
favor of children who are injured by dangerous
machinery naturally calculated to attract them to the
premises; (3) that an invitation of license to cross the
premises of another can not be predicated on the mere
fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children
and adults of an invitation or a license to enter upon
another's premises.
Similar criticisms of the opinion in the case of Railroad
Company vs. Stout were indulged in by the courts in
Connecticut and Massachusetts. (Nolan vs. Railroad Co.,
53 Conn., 461; 154 Mass., 349). And the doctrine has
been questioned in Wisconsin, Pennsylvania, New
Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of
last resort in the United States, citing and approving the
doctrine laid down in England in the leading case of
Lynch vs. Nurding (1 Q.B., 29, 35, 36), lay down the rule
in these cases in accord with that announced in Railroad
Company vs. Stout (supra), and the Supreme Court of
the United States, in a unanimous opinion delivered by
Justice Harlan in the case of Union Pacific Railway Co. vs.
McDonald (152 U.S, 262) on the 5th of March, 1894,
reexamined and reconsidered the doctrine laid down in
Railroad Co. vs. Stout, and after an exhaustive and
critical analysis and review of may of the adjudged
cases, both English and America, formally declared that
it adhered "to the principles announced in the case of
Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. McDonald
(supra) the facts were as follows: The plaintiff, a boy 12
years of age, our of curiosity and for his own pleasure,
entered upon and visited the defendant's premises,
without defendant's express permission or invitation,
and, while there, was by an accident injured by failing
into a burning slack pile of whose existence he had
knowledge, but which had been left by defendant on its
premises without any fence around it or anything to
give warning of its dangerous condition, although
defendant knew or had reason to believe that it was in a
place where it would attract the interest or curiosity of
passers-by. On these facts the court held that the
plaintiff could not be regarded as a mere trespasser, for
whose safety and protection while on the premises in
question, against the unseen danger referred to, the
defendant was under no obligation to make provision.
We quote at length from the discussion by the court of
the application of the principles involved to the facts in
that case, because what is said there is strikingly
applicable in the case at bar, and would seem to dispose
of defendant's contention that, the plaintiff in this case
being a trespasser, the defendant's company owed him
no duty, and in no case could be held liable for injuries
which would not have resulted but for the entry of
plaintiff on defendant's premises.
"We adhere to the principle
announced in Railroad Co., vs. Stout
(supra). Applied to the case now
before us, they require us to hold that
the defendant was guilty of
negligence in leaving unguarded the
slack pile, made by it in the vicinity
of its depot building. It could have
forbidden all the persons from
coming to its coal mine for purposes
merely of curiosity and pleasure. But
it did not do so. On the contrary, it
permitted all, without regard to age,
to visit its mine, and witness its
operation. It knew that the usual
approach to the mine was by a
narrow path skirting its slack pit,
close to its depot building, at which
the people of the village, old and
young, would often assemble. It
knew that children were in the habit
of frequenting that locality and
playing around the shaft house in the
immediate vicinity of the slack pit.
The slightest regard for the safety of
these children would have suggested
that they were in danger from being
so near a pit, beneath the surface of
which was concealed (except when
snow, wind, or rain prevailed) a mass
of burning coals into which a child
might accidentally fall and be burned
to death. Under all the circumstances,
the railroad company ought not to be
heard to say that the plaintiff, a mere
lad, moved by curiosity to see the
mine, in the vicinity of the slack pit,
was a trespasser, to whom it owed no
duty, or for whose protection it was
under no obligation to make
provisions.
"In Townsend vs. Wathen (9 East., 277,
281) it was held that if a man place
dangerous traps, baited with flesh, in
his own ground, so near to a
highway, or to the premises of
another, that dogs passing along the
highway, or kept in his neighbors
premises, would probably be
attracted by their instinct into the
traps, and in consequence of such act
his neighbor's dog be so attracted and
thereby injured, an action on the case
would lie. 'What difference,' said
Lord Ellenborough, C.J., 'is there a
reason between drawing the animal
into the trap by means of his instinct
which he can not resist, and putting
him there by manual force?' What
difference, in reason we may observe
in this case, is there between an
express license to the children of this
village to visit the defendant's coal
mine, in the vicinity of its slack pile,
and an implied license, resulting
from the habit of the defendant to
permit them, without objection or
warning, to do so at will, for
purposes of curiosity or pleasure?
Referring to the case of Townsend vs.
Wathen, Judge Thompson, in his
work on the Law of negligence,
volume 1, page 305, note, well ways:
"It would be a barbarous rule of law
that would make the owner of land
liable for setting a trap thereon,
baited with stinking meat, so that his
neighbor's dog attracted by his
natural instincts, might run into it
and be killed, and which would
exempt him from liability for the
consequences of leaving exposed and
unguarded on his land a dangerous
machine, so that his neighbor's child
attracted to it and tempted to
intermeddle with it by instincts
equally strong, might thereby be
killed of maimed for life."
Chief Justice Cooley, voicing the opinion of the
supreme court of Michigan, in the case of Powers vs.
Marlow (53 Mich., 507), said that (p. 515):
"Children, wherever they go, must be
expected to act upon childlike
instincts and impulses; and others
who are chargeable with a duty of
care and caution toward them must
calculate upon this, and take
precautions accordingly. If they leave
exposed to the observation of
children anything which would be
192
 tempting to them, and which they in
their immature judgment might
naturally suppose they were at
liberty to handle or play with, they
should expect that liberty to be
taken."
And the same eminent jurist in his treaties on torts,
alluding to the doctrines of implied invitations to visit
the premises of another, says:
"In the case of young children, and
other persons not fully sui juris, an
implied license might sometimes
arise when it would not on behalf of
others. Thus leaving a tempting thing
for children to play with exposed,
where they would be likely to gather
for that purpose, may be equivalent
to an invitation to them to make use
of it; and, perhaps if one were to
throw away upon his premises, near
the common way, things tempting to
children, the same implication should
arise." (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the
United States to its conclusions in the cases of Railroad
Co., vs. Stout (supra) and Union Pacific Railroad Co. vs.
McDonald (supra) is not less cogent and convincing in
this jurisdiction than in that than in that wherein those
cases originated. Children here are actuated by similar
childish instincts and impulses. Drawn by curiosity and
impelled by the restless spirit of youth, boys here as
well as there will usually be found wherever the public
permitted to congregate. The movement of machinery,
and indeed anything which arouses the attention of the
young and inquiring mind, will draw them to the
neighborhood as inevitably as does the magnet draw
the iron which comes within the range of its magnetic
influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which
the public are expressively or impliedly permitted to
enter to or upon which the owner knows or ought to
know children are likely to roam about for pastime and
in play, "must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises
can not be heard to say that because the child has
entered upon his premises without his express
permission he is a trespasser to whom the owner owes
no duty or obligation whatever. The owner's failure to
take reasonable precautions to prevent the child form
entering premises at a place where he knows or ought
to know that children are accustomed to roam about or
to which their childish instincts and impulses are likely
to attract them is at least equivalent to an implied
license to enter, and where the child does not enter
under such conditions the owner's failure to make
reasonable precaution to guard the child against the
injury from unknown or unseen dangers, placed upon
such premises by the owner, is clearly a breach of duty,
a negligent omission, for which he may and should be
193
held responsible, if the child is actually injured, without
other fault on its part than that it had entered on the
premises of a stranger without his express invitation or
permission. To hold otherwise would be expose to all
the children in the community to unknown perils and
unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and
reasonably be expected to enter.
This conclusion is founded on reason, justice, and
necessary, and neither the contention that a man has a
right to do what he will with his own property of that
children should be kept under the care of the parents or
guardian, so as to prevent their entering on the
premises of others is of sufficient weight to put it in
doubt. In this jurisdiction as well as in the United States
all private property is acquired and held under the tacit
condition that it shall not be so used as to injure the
equal rights of others or greatly impair the public rights
and interests of the community (see U.S. vs. Toribio, 1
No. 5060, decided January 26, 1910), and except as to
infants of very tender years it would be absurd and
unreasonable in community organized as is that in
which we live to hold that parents or guardians are
guilty of negligence or imprudence in every case
wherein they permit growing boys and girls to leave
the parental roof unattended, even if in the event of
accident to the child the negligence of the parents could
in any event be imputed to the child so as to deprive it
of a right to recover in such cases — a point which we
neither discuss not decide.
But while we hold that the entry of the plaintiff upon
defendant's property without defendant's express
invitation or permission would not have relieved
defendant from responsibility for injuries incurred
there by the plaintiff, without other fault on his part, if
such injury were attributable to the negligence of the
defendant, we are of opinion that under all the
circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises
was not the proximate cause of the injury received by
the plaintiff, which therefore was not, properly
speaking, "attributable to the negligence of the
defendant," and, on the other hand, we are satisfied that
plaintiff's action in cutting open the detonating cap and
putting a match to its contents was the proximate cause
of the explosion and of the resultant injuries inflicted
upon the plaintiff, and that the defendant, therefore, is
not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable
and Torpedo cases, that because of plaintiff's youth the
intervention of his action between the negligent act of
the defendant leaving the caps exposed on its premises
and the explosion which resulted in his injury should
not be held to have contributed in any wise to the
accident; and it is because we can not agree with this
proposition, although we accept the doctrine on the
Turntable and Torpedo cases, that we have thought of
proper to discuss and to consider that doctrine at length
in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to
an adult that entitle him to recover damages for an
injury resulting from the fault or negligence of another
he must himself have been free from fault, such is not
the rule in regard to an infant of tender years. The care
and caution required of a child is according to his
maturity and capacity only, and this is to be determined
in each case by the circumstance of the case." As we
think we have shown, under the reasoning on which
rests the doctrine of the Turntable and Torpedo cases,
no fault which would relieve defendant of
responsibility for injuries resulting from negligence can
be attributed to the plaintiff, a well-grown boy of 15
years of age, because of his entry upon defendant's
uninclosed premises without express permission or
invitation; but it is a wholly different question whether
such a youth can be said to have been free from fault
when he willfully and deliberately cut upon the
detonating cap, and placed a match to the contents,
knowing, as he undoubtedly did, that his action would
result in an explosion. On this point, which must be
determined by "the particular circumstances of this
case," the doctrine laid down in the Turntable and
Torpedo cases lends us no direct aid, although it is
worthy of observation that in all of the "Torpedo" and
analogous cases to which our attention has been
directed, the record discloses that the plaintiffs, is
whose favor judgments have been affirmed, were of
such tender years that they were held not to have the
capacity to understand the nature or character of the
explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident
was well—grown youth of 15, more mature both
mentally and physically than the average boy of his
age; he had been to sea as a cabin boy; was able to earn
P2.50 a day as a mechanical draftsman thirty days after
the injury was incurred; and the record discloses
throughout that he was exceptionally well qualified to
take care. The evidence of record leaves no room for
doubt that, despite his denials on the witness stands, he
well knew the explosive character of the cap with
which he was amusing himself. The series of
experiments made by him in his attempt to produce an
explosion, as described by the little girl who was
present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by
his efforts to explode it with a stone or a hammer, and
the final success of his endeavors brought about by the
applications of a match to the contents of the cap, show
clearly that he knew what he was about. Nor can there
be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in
view of the fact that the little girl, 9 years of age, who
was with him at the time when he put the match to the
contents of the cap, became frightened and ran away.
True, he may not have known and probably did not
know the precise nature of the explosion which might
be expected from the ignition of the contents of the cap,
and of course he did not anticipate the resultant injuries
which he incurred; but he well knew that a more or less
dangerous explosion might be expected from his act,
and yet he willfully, recklessly, and knowingly
produced the explosion. It would be going far to say
that "according to his maturity and capacity" he
exercised such "care and caution" as might reasonably
be required of him, or that the defendant or anyone else
should be held civilly responsible for injuries incurred
by him under such circumstances.
The law fixed no arbitrary age at which a minor can be
said to have the necessary capacity to understand and
appreciate the nature and consequences of his own acts,
so as to make it negligence on his part to fail to exercise
with due care an precaution in the commission of such
acts; and indeed it would be impracticable and perhaps
impossible so to do, for in the very nature of things the
question of negligence necessarily depends on the
ability of the minor to understand the character of his
own acts and their consequences; and the age at which
a minor can be said to have such ability will necessarily
vary in accordance with the varying nature of the
infinite variety of acts which may be done by him. But
some idea of the presumed capacity of infants under
the laws in force in these Islands may be gathered from
an examination of the varying ages fixed by our laws at
which minors are conclusively presumed to be capable
to exercising certain rights and incurring certain
responsibilities, through it can not be said that these
provisions of law are of much practical assistance in
cases such as that at bar, except so far as they illustrate
the rule that the capacity of a minor to become
responsible for his own acts varies with the varying
circumstances of each case. Under the provisions of the
Penal code a minor over fifteen years of age is
presumed to be capable of committing a crime and is to
be held criminally responsible therefore, although the
fact that he is less than eighteen years of age will be
taken into consideration as an extenuating circumstance
(Penal code, arts, 8 and 9). At 10 years of age a child
may, under certain circumstances, choose which parent
it prefers to live with (Code of Civil Procedure, sec.
771). At 14 it may petition for the appointment of a
guardian (Id., sec. 551), and may consent or refuse to be
adopted (Id., sec. 765). And males of 14 and females of
12 are capable of contracting of legal marriage (Civil
Code, art. 83; G.O., No., 68, sec. 1).
We are satisfied that the plaintiff in this case had
sufficient capacity and understanding to be sensible to
the danger to which he exposed himself when he put
the match to the contents of the cap; that he was sui
juris in the sense that his age and his experience
qualified him to understand and appreciate the
necessity for the exercise of that degree of caution
which would have avoided the injury which resulted
from his own deliberate act; and that the injury
incurred by him must be held to have been the direct
and immediate result of his own willful and reckless
act, so that while it may be true that these injuries
would not have been incurred but for the negligent act
of the defendant in leaving the caps exposed on its
premises, nevertheless plaintiff's own act was the
194
proximate and principal cause of the accident which
inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua
damnum sentit, non intelligitur 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 therefore from another."
(Law 25, tit. 5 Partida 3.)
"And they even said that when a man received an
injury through his own negligence he should blame
himself for it." (Rule 22, tit. 34 Partida 7.)
"According to ancient sages, when a man received an
injury through his own acts the grievance should be
against himself and not against another." (Law 2, tit. 7
Partida 2.)
And while there does not appear to be anything in the
Civil Code which expressly lays down the law touching
contributory negligence in this jurisdiction,
nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this
court in the case of Rakes vs. Atlantic Gulf and Pacific
Co., (7 Phil. Rep., 359), clearly deny to the plaintiff in
the case at bar the right to recover damages from the
defendant, in whole or in part, for the injuries sustained
by him.
The judgment of the supreme court of Spain of the 7th
of March, 1902 (93 Jurisprudencia Civil, 391), is directly
in point. In that case the court said:
"According to the doctrine expressed
in article 1902 of the Civil Code, fault
or negligence is a source of obligation
when between such negligence and
the injury there exists, the relation of
cause and effect: but if the injury
produced should not be the result of
acts or omissions of a third party, the
latter has no obligation to repair the
same, although such acts or
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 party himself."
The same court, in its decision of June 12, 1900, said that
"the existence of the alleged fault or negligence is not
sufficient without proof that it, and no other cause,
gave rise to the damage."
See also judgment of October 21, 1903.
195
To similar effect Scaevola, the learned Spanish writer,
writing under that title in his Jurisprudencia del Codigo
Civil (1902 Anuario, p. 455), commenting on the
decision of March 7, 1902, says that "in accordance with
the doctrine expressed by article 1902 of the Civil Code,
fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of
cause and effect' but if the damage caused does not
arise from acts or omissions of a third person, there is
no obligation to make good upon the latter, even
though such acts or omissions be imprudent or illegal,
and much less so when it is shown that the immediate
cause of the damage has been the recklessness the
injured party himself."
And again —
"In accordance with the fundamental
principle of proof, that the burden
thereof is upon the plaintiff, it is
apparent that it is the duty of him
who shall claim damages to establish
their existence. The decisions of April
9, 1896, and March 18, July 6, and
September 27, 1898, have especially
supported the principle, the first
setting forth in detail the necessary
points of the proof, which are two:
An act or omission on the part of the
person who is to be charged with the
liability, and the production of the
damage by said act or omission.
"This includes, by inference, the
establishment of a relation of cause or
effect between the act or the omission
and the damage; the latter must be
direct result of one of the first two. As
the decision of March 22, 1881, said, it
is necessary that damages result
immediately and directly from an act
performed culpably and wrongfully'
'necessarily presupposing a legal
ground for imputability.'" (Decision
of October 29, 1877.)
"Negligence is not presumed, but be
proven by him who alleges it."
(Scaevola, Jurisprudencia del Codigo
Civil, vol. 6, pp. 551, 552.) (Cf.
decisions of supreme court of Spain
of June 12, 1900. and June 23, 1900.)
Finally, we think the doctrine is in this jurisdiction
applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs.
Atlantic, Gulf and Pacific Co. (supra), wherein we held
that while "There are many cases (personal injury cases)
in the supreme court of Spain in which the defendant
was exonerated." on the ground that "the negligence of
the plaintiff was immediate cause of the casualty"
(decisions of the 15th of January, the 19th of February,
and the 7th of March, 1902, stated in Alcubilla's Index
of that year); none of the cases decided by the supreme
court of Spain "define the effect to be given the
negligence of a plaintiff which contributed to his injury
as one of its causes, though not the principal one, and
we left to seek the theory of the civil law in the law in
the practice of another countries;" and in such cases we
declared the law in this jurisdiction to require the
application of 'the principle of proportional damages,"
but expressly and definitely denied the right of
recovery when the acts of the injured party were the
immediate causes of the accident.
The doctrine as laid down in that case as follows:
"Difficulty seems to be apprehended
in deciding which acts of the injured
party shall be considered immediate
causes of the accident. The test is
simple. Distinction must be made
between the accident and the injury,
between the event itself, without
which there could have been no
accident, and those acts of the victim
not entering into it, independence of
it, but contributing to his own proper
hurt. For instance, the cause of the
accident under review was the
displacement of the crosspiece or the
failure to replace it. This produced
the event giving occasion for
damages — that is, sinking of the
track and the sliding of the iron rails.
To this event, the act of the plaintiff
in walking by the side of the car did
not contribute, although it was an
element of the damage which came to
himself. Had the crosspiece been out
of place wholly or partly through this
act or omission of duty, that would
have been one of the determining
causes of the event or accident, for
which he would have been
responsible. Where he contributes to
the principal occurrence, as one of its
determining factors, he can not
recover. Where, in conjunction with
the occurrence, he contributes only to
his own injury, he may recover the
amount that the defendant
responsible for the event should pay
for such injury, less a sum deemed a
suitable equivalent for his own
imprudence."
We think it is quite clear that under the doctrine thus
stated, the immediate cause of the explosion , the
accident which resulted in plaintiff's injury, was his
own act of putting a match to the contents of the cap,
and that having "contributed to the principal
occurrence, as one of its determining factors, he can not
recover."
We have not deemed it necessary to examine the effect
of plaintiff's action in picking up upon defendant's
premises the detonating caps, the property of the
defendant, and carrying them sway to the home of his
friend, as interrupting the relation of cause and effect
between the negligent act or omission of the defendant
in leaving the caps exposed on its premises and the
injuries inflicted upon the plaintiff by the explosion of
one of these caps. Under the doctrine of the Torpedo
cases, such action on the part of an infant of very tender
years would have no effect in relieving defendant of
responsibility, but whether in view of the well known
facts admitted in defendant's brief that "boys are
snappers-up of unconsidered trifles," a youth of the age
and maturity of plaintiff should be deemed without
fault in picking up the caps in question under all the
circumstances of this case, we neither discuss not
decide.
Twenty days after the date of this decision let judgment
be entered reversing the judgment of the court below,
without costs to either party in this instance, and ten
days thereafter let the record be returned to the court
wherein it originated, where judgment will be entered
in favor of the defendant for the costs in first instance
and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
GAN vs. COURT OF APPEALS, ET AL.
G.R. No. L-44264, 19 September 1988, 165 SCRA 378
See supra.
ESTACION vs. BERNARDO, ET AL.
G.R. No. 144723. February 27, 2006, 483 SCRA 222
AUSTRIA-MARTINEZ, J p:
Before us is a petition for review on certiorari filed by
Larry Estacion (petitioner) seeking to annul the
Decision dated April 17, 2000 of the Court of Appeals
(CA) in CA-G.R. CV No. 41447 which affirmed in toto
the decision of the Regional Trial Court (RTC) of
Dumaguete City, Branch 41, Negros Oriental, holding
petitioner and his driver Bienvenido Gerosano
(Gerosano) liable for damages for the injury sustained
by Noe Bernardo (respondent Noe). Also assailed is the
appellate court's Resolution dated August 16, 2000
denying petitioner's motion for reconsideration.
In the afternoon of October 16, 1982, respondent Noe
was going home to Dumaguete from Cebu, via Bato
and Tampi. At Tampi, he boarded a Ford Fiera
passenger jeepney with plate no. NLD 720 driven by
respondent Geminiano Quinquillera (Quinquillera),
owned by respondent Cecilia Bandoquillo
(Bandoquillo), and was seated on the extension seat
placed at the center of the Fiera. From San Jose, an old
woman wanted to ride, so respondent Noe offered his
196
seat. Since the Fiera was already full, respondent Noe
hung or stood on the left rear carrier of the vehicle.
Somewhere along Barangay Sto. Niño, San Jose, Negros
Oriental, between kilometers 13 and 14, the Fiera began
to slow down and then stopped by the right shoulder of
the road to pick up passengers. Suddenly, an Isuzu
cargo truck, owned by petitioner and driven by
Gerosano, which was traveling in the same direction,
hit the rear end portion of the Fiera where respondent
Noe was standing. Due to the tremendous force, the
cargo truck smashed respondent Noe against the Fiera
crushing his legs and feet which made him fall to the
ground. A passing vehicle brought him to the Silliman
University Medical Center where his lower left leg was
amputated.
Police investigation reports showed that respondent
Noe was one of the 11 passengers of the Fiera who
suffered injuries; that when the Fiera stopped to pick
up a passenger, the cargo truck bumped the rear left
portion of the Fiera; that only one tire mark from the
front right wheel of the cargo truck was seen on the
road. A sketch of the accident was drawn by
investigator Mateo Rubia showing the relative positions
of the two vehicles, their distances from the shoulder of
the road and the skid marks of the right front wheel of
the truck measuring about 48 feet.
On February 18, 1993, respondent Noe, through his
guardian ad litem Arlie Bernardo, filed with the RTC of
Dumaguete City a complaint for damages arising from
quasi delict against petitioner as the registered owner of
the cargo truck and his driver Gerosano. He alleged
that the proximate cause of his injuries and suffering
was the reckless imprudence of Gerosano and
petitioner's negligence in the selection of a reckless
driver and for operating a vehicle that was not
roadworthy. He prayed for actual damages, loss of
income, moral and exemplary damages, attorney's fees,
litigation expenses and costs of suit.
Petitioner and his driver Gerosano filed their Answer
denying the material allegations in the complaint. They,
in turn, filed a third party complaint against
respondents Bandoquillo and Quinquillera, as owner
and driver respectively of the Fiera. They alleged that it
was the reckless imprudence of respondent driver
Quinquillera and his clear violation of the traffic rules
and regulations which was the proximate cause of the
accident and asked for indemnification for whatever
damages they would be sentenced to pay. Respondents
Bandoquillo and Quinquillera filed their Answer to the
third party complaint asking for the dismissal of the
third party complaint and for payment of attorney's
fees.
Driver Gerosano was charged criminally for reckless
imprudence resulting to multiple physical injuries with
damage to property before the Municipal Circuit Trial
Court (MCTC) of Pamplona-Amlan and San Jose,
Negros Oriental. On November 16, 1987, the MCTC
rendered its decision 6 finding him guilty of the crime
197
charged and was sentenced to four months and one day
to two years and four months and to pay the costs.
On February 18, 1993, the RTC rendered its judgment in
the civil case, the dispositive portion of which reads:
xxx xxx xxx
The trial court ruled that the negligence of Gerosano,
petitioner's driver, is the direct and proximate cause of
the incident and of the injuries suffered by respondent
Noe; that Gerosano's gross negligence and reckless
imprudence had been confirmed by the Judgment in
Criminal Case No. 463; that based on the findings of the
police investigator, the faulty brakes caused the cargo
truck to bump the Fiera; that the Traffic Accident
Report showed that the tire mark of the cargo truck
measuring 48 feet is visibly imprinted on the road
where the incident took place indicating that the said
vehicle was speeding fast; that the existence of one tire
mark of the cargo truck proved that the said vehicle
had a faulty brake, otherwise, it would have produced
two tire marks on the road; and that the photographs
taken right after the incident also showed who the
guilty party was.
The trial court did not give credence to the argument of
petitioner and his driver that the truck was properly
checked by a mechanic before it was dispatched for a
trip. It found that petitioner is negligent in maintaining
his vehicle in good condition to prevent any accident to
happen; that petitioner is liable under Article 2180 of
the Civil Code as employer of driver Gerosano for
being negligent in the selection and supervision of his
driver as well as for maintaining and operating a
vehicle that was not roadworthy; and that petitioner
and his driver are solidarily liable for all the natural
and probable consequences of their negligent acts or
omissions. The trial court dismissed the third party
complaint filed by petitioner and his driver against
respondents Bandoquillo and Quinquillera.
Dissatisfied, only petitioner appealed to the CA. On
April 17, 2000, the CA rendered the assailed decision
which affirmed in toto the decision of the trial court.
Petitioner's motion for reconsideration was denied in a
Resolution dated August 16, 2000.
Hence, the herein petition for review.
xxx xxx xxx
We find it apropos to resolve first the third issue
considering that the extent of the liability of petitioner
and his driver is dependent on whether respondents
Bandoquillo and Quinquillera are the ones negligent in
the vehicular mishap that happened in the afternoon of
October 16, 1982 where respondent Noe was injured,
resulting in the amputation of his left leg.
xxx xxx xxx
On the basis of the records of this case, we find that
there is cogent reason for us to review the factual
findings of the lower courts to conform to the evidence
on record and consider this case as an exception to the
general rule.
The trial court and the appellate court had made a
finding of fact that the proximate cause of the injury
sustained by respondent Noe was the negligent and
careless driving of petitioner's driver, Gerosano, who
was driving at a fast speed with a faulty brake when the
accident happened. We see no cogent reason to disturb
the trial court's finding in giving more credence to the
testimony of respondent Noe than the testimony of
Gerosano, petitioner's truck driver.
The correctness of such finding is borne by the records.
In his testimony, Gerosano said that he was driving the
truck at a speed of about 40 kilometers per hour; that
the Fiera was behind him but upon reaching the curve,
i.e., after passing San Jose going to Dumaguete, the
Fiera overtook him and blocked his way; that he was 10
meters from the Fiera prior to the impact when he
applied the brakes and tried to evade the Fiera but he
still hit it.
We agree with the trial court and the appellate court
when they found that the truck was running at a fast
speed because if Gerosano was really driving at a speed
of 40 kilometers per hour and considering that the
distance between the truck and the Fiera in front was
about 10 meters, he had more than enough time to
slacken his speed and apply his break to avoid hitting
the Fiera. However, from the way the truck reacted to
the application of the brakes, it showed that Gerosano
was driving at a fast speed because the brakes skidded
a lengthy 48 feet as shown in the sketch of police
investigator Rubia of the tire marks visibly printed on
the road.
Moreover, the photographs taken after the incident and
the testimony of Gerosano as to the extent of damage to
the truck, i.e. the truck's windshield was broken and its
hood was damaged after the impact, 18 further support
the finding of both courts that Gerosano was driving at
a fast pace.
The accident was further caused by the faulty brakes of
the truck. Based on the sketch report, there was only
one tire mark of the right tire of the cargo truck during
the incident which, as testified to by police investigator
Rubia, meant that the brakes of the truck were not
aligned otherwise there would be two tire marks
impressions on the road. Although petitioner contends
that there are other factors to explain why only one skid
mark was found at the place of the incident, such as the
angle and edges of the road as well as the balance of the
weight of the cargo laden in the truck, he failed to show
that indeed those factors were present to prove his
defense. Such claim cannot be given credence
considering that investigator Rubia testified that the
body of the truck was very much on the road, i.e., not
over the shoulder of the road, and the road was
straight. Indeed, it is the negligent act of petitioner's
driver of driving the cargo truck at a fast speed coupled
with faulty brakes which was the proximate cause of
respondent Noe's injury.
Petitioner's claim that right after overtaking the cargo
truck, the Fiera driver suddenly stopped to pick up
three passengers from the side of the road; that the
overloading of passengers prevented his truck driver
from determining that the Fiera had pulled over to pick
up passengers as the latter's brakelights were
obstructed by the passengers standing on the rear
portion of the Fiera were not substantiated at all.
Respondent Quinquillera, the driver of the Fiera,
testified that the distance from the curve of the road
when he stopped and picked up passengers was
estimated to be about 80 to 90 feet. In fact, from the
sketch drawn by investigator Rubia, it showed a
distance of 145 feet from the curve of the road to the
speed tire mark (which measured about 48 feet) visibly
printed on the road to the Fiera. This means that the
Fiera driver did not stop immediately after the curve as
what petitioner claims. Moreover, Gerosano admitted
that his truck was at a distance of 10 meters prior to the
impact. The distance between the two vehicles was
such that it would be impossible for Gerosano not to
have seen that the Fiera had pulled over to pick up
passengers.
However, we agree with petitioner that respondent
Noe's act of standing on the rear carrier of the Fiera
exposing himself to bodily injury is in itself negligence
on his part. We find that the trial court and the CA
erred when they failed to consider that respondent Noe
was also guilty of contributory negligence.
Contributory negligence is conduct on the part of the
injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard to
which he is required to conform for his own protection.
It has been established by the testimony of respondent
Noe that he was with four or five other persons
standing on the rear carrier of the Fiera since it was
already full. Respondent Noe's act of standing on the
left rear carrier portion of the Fiera showed his lack of
ordinary care and foresight that such act could cause
him harm or put his life in danger. It has been held that
"to hold a person as having contributed to his injuries, it
must be shown that he performed an act that brought
about his injuries in disregard of warning or signs of an
impending danger to health and body. Respondent
Noe's act of hanging on the Fiera is definitely
dangerous to his life and limb.
We likewise find merit in petitioner's contention that
respondent Quinquillera, the Fiera driver, was also
negligent. There is merit to petitioner's claim that there
was overloading which is in violation of traffic rules
and regulations. Respondent Noe himself had testified
that he was standing at the rear portion of the Fiera
because the Fiera was already full. Respondent
198
Quinquillera should not have taken more passengers
than what the Fiera can accommodate. If the Fiera was
not overloaded, respondent Noe would not have been
standing on the rear carrier and sustained such extent
of injury.
Furthermore, we find that respondent Quinquillera was
negligent in allowing respondent Noe to stand on the
Fiera's rear portion. Section 32(c) of Article III of
Republic Act No. 4136, otherwise known as "The Land
Transportation and Traffic Code" provides:
“(c) Riding on running boards —
No driver shall allow any person to
ride on running board, step board or
mudguard of his motor vehicle for
any purpose while the vehicle is in
motion.
Respondent Quinquillera's act of permitting respondent
Noe to hang on the rear portion of the Fiera in such a
dangerous position creates undue risk of harm to
respondent Noe. Quinquillera failed to observe that
degree of care, precaution and vigilance that the
circumstances justly demand. Thus, respondent Noe
suffered injury. Since respondent Quinquillera is
negligent, there arises a presumption of negligence on
the part of his employer, respondent Bandoquillo, in
supervising her employees properly. Such presumption
was not rebutted at all by Bandoquillo. Thus, the CA
erred in affirming the dismissal of the third party
complaint filed by petitioner against respondents
Quinquillera and Bandoquillo.
Petitioner contends that he was able to establish that he
exercised the due diligence of a good father of a family
in the selection of his employees as well as in the
maintenance of his cargo truck in good operating
condition. He claims that in addition to looking at
Gerosano's driver's license, he accompanied the latter in
his first two trips, during which he ascertained
Gerosano's competence as a driver, petitioner being a
driver himself; that the truck driven by Gerosano has
never figured in any accident prior to the incident
involved; that upon his acquisition of the cargo truck
on March 16, 1982, only 7 months prior to the incident,
the same was thoroughly checked up and
reconditioned; and that he had in his employ a
mechanic who conducted periodic check-ups of the
engine and brake system of the cargo truck. We are
not persuaded.
Article 2180 of the 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
199
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.
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.
As the employer of Gerosano, petitioner is primarily
and solidarily liable for the quasi-delict committed by
the former. Petitioner is presumed to be negligent in the
selection and supervision of his employee by operation
of law and may be relieved of responsibility for the
negligent acts of his driver, who at the time was acting
within the scope of his assigned task, only if he can
show that he observed all the diligence of a good father
of a family to prevent damage.
In Yambao v. Zuniga, we have clarified the meaning of
the diligence of a good father of a family, thus:
The "diligence of a good father"
referred to in the last paragraph of
the aforecited statute means diligence
in the selection and supervision of
employees. Thus, when an employee,
while performing his duties, causes
damage to persons or property due to
his own negligence, there arises the
juris tantum presumption that the
employer is negligent, either in the
selection of the employee or in the
supervision over him after the
selection. For the employer to avoid
the solidary liability for a tort
committed by his employee, an
employer must rebut the
presumption by presenting adequate
and convincing proof that in the
selection and supervision of his
employee, he or she exercises the care
and diligence of a good father of a
family. . . .
Petitioner's claim that she exercised
due diligence in the selection and
supervision of her driver, Venturina,
deserves but scant consideration. Her
allegation that before she hired
Venturina she required him to submit
his driver's license and clearances is
worthless, in view of her failure to
offer in evidence certified true copies
of said license and clearances. Bare
allegations, unsubstantiated by
 evidence, are not equivalent to proof
under the rules of evidence. . . .
In any case, assuming arguendo that
Venturina did submit his license and
clearances when he applied with
petitioner in January 1992, the latter
still fails the test of due diligence in
the selection of her bus driver. Case
law teaches that for an employer to
have exercised the diligence of a good
father of a family, he should not be
satisfied with the applicant's mere
possession of a professional driver's
license; he must also carefully
examine the applicant for
employment as to his qualifications,
his experience and record of service.
Petitioner failed to present
convincing proof that she went to this
extent of verifying Venturina's
qualifications, safety record, and
driving history. The presumption
juris tantum that there was negligence
in the selection of her bus driver,
thus, remains unrebutted.
Nor did petitioner show that she
exercised due supervision over
Venturina after his selection. For as
pointed out by the Court of Appeals,
petitioner did not present any proof
that she drafted and implemented
training programs and guidelines on
road safety for her employees. In fact,
the record is bare of any showing that
petitioner required Venturina to
attend periodic seminars on road
safety and traffic efficiency. Hence,
petitioner cannot claim exemption
from any liability arising from the
recklessness or negligence of
Venturina.
In sum, petitioner's liability to private
respondents for the negligent and
imprudent acts of her driver,
Venturina, under Article 2180 of the
Civil Code is both manifest and clear.
Petitioner, having failed to rebut the
legal presumption of negligence in
the selection and supervision of her
driver, is responsible for damages,
the basis of the liability being the
relationship of pater familias or on the
employer's own negligence. . . .
(Emphasis supplied)
Petitioner failed to show that he examined driver
Gerosano as to his qualifications, experience and
service records. In fact, the testimony of driver
Gerosano in his cross-examination showed the non-
observance of these requirements. Gerosano testified
that petitioner was his first employer in Dumaguete
and that he was accepted by petitioner on the very day
he applied for the job; that his driver's license was
issued in Mindanao where he came from and that while
petitioner asked him about his driving record in
Mindanao, he did not present any document of his
driving record. Such admission clearly established that
petitioner did not exercise due diligence in the selection
of his driver Gerosano.
Moreover, the fact that petitioner's driver Gerosano was
driving in an efficient manner when petitioner was
with him in his first two trips would not conclusively
establish that Gerosano was not at all reckless. It could
not be considered as due diligence in the supervision of
his driver to exempt petitioner from liability. In the
supervision of his driver, petitioner must show that he
had formulated training programs and guidelines on
road safety for his driver which the records failed to
show. We find that petitioner failed to rebut the
presumption of negligence in the selection and
supervision of his employees.
Moreover, there was also no proof that he exercised
diligence in maintaining his cargo truck roadworthy
and in good operating condition. While petitioner's
mechanic driver testified that he made a routine check
up on October 15, 1982, one day before the mishap
happened, and found the truck operational, there was
no record of such inspection.
Turning now to the award of damages, since there was
contributory negligence on the part of respondent Noe,
petitioner's liability should be mitigated in accordance
with Article 2179 of the Civil Code which provides:
When the plaintiff's own negligence was the immediate
and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being
the defendant's lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the
damages to be awarded.
The underlying precept of the above article on
contributory negligence is that a plaintiff who is partly
responsible for his own injury should not be entitled to
recover damages in full but must bear the consequences
of his own negligence. The defendant must thus be held
liable only for the damages actually caused by his
negligence.
In Phoenix Construction, Inc., v. Intermediate Appellate
Court, where we held that the legal and proximate
cause of the accident and of Dionisio's injuries was the
wrongful and negligent manner in which the dump
truck was parked but found Dionisio guilty of
contributory negligence on the night of the accident, we
allocated most of the damages on a 20-80 ratio. In said
case, we required Dionisio to bear 20% of the damages
200
awarded by the appellate court, except as to the award
of exemplary damages, attorney's fees and costs.
In the present case, taking into account the contributing
negligence of respondent Noe, we likewise rule that the
demands of substantial justice are satisfied by
distributing the damages also on a 20-80 ratio excluding
attorney's fees and litigation expenses. 34
Consequently, 20% should be deducted from the actual
and moral damages awarded by the trial court in favor
of respondent Noe, that is: 20% of P129,584.20 for actual
damages is P25,916.84 and 20% of P50,000.00 for moral
damages is P10,000.00. Thus, after deducting the same,
the award for actual damages should be P103,667.36
and P40,000.00 for moral damages or 80% of the
damages so awarded.
Petitioner and respondents Bandoquillo and
Quinquillera are jointly and severally liable for the 80%
of the damages as well as attorney's fees and litigation
expenses conformably with our pronouncement in Tiu
v. Arriesgado where we held:
The petitioners, as well as the
respondents Benjamin Condor and
Sergio Pedrano are jointly and
severally liable for said amount,
conformably with the following
pronouncement of the Court in Fabre,
Jr. v. Court of Appeals:
The same rule of liability was
applied in situations where the
negligence of the driver of the
bus on which plaintiff was
riding concurred with the
negligence of a third party who
was the driver of another
vehicle, thus causing an
accident. In Anuran v. Buño,
Batangas Laguna Tayabas Bus
Co. v. Intermediate Appellate
Court, and Metro Manila Transit
Corporation v. Court of Appeals,
the bus company, its driver,
the operator of the other
vehicle and the driver of the
vehicle were jointly and
severally held liable to the
injured passenger or the latter's
heirs. The basis of this
allocation of liability was
explained in Viluan v. Court of
Appeals, thus:
"Nor should it make
difference that the liability
of petitioner [bus owner]
springs from contract
while that of respondents
[owner and driver of
other vehicle] arises from
201
quasi delict. As early as
1913, we already ruled in
Gutierrez v. Gutierrez, 56
Phil. 177, that in case of
injury to a passenger due
to the negligence of the
driver of the bus on which
he was riding and of the
driver of another vehicle,
the drivers as well as the
owners of the two
vehicles are jointly and
severally liable for
damages. Some members
of the Court, though, are
of the view that under the
circumstances they are
liable on quasi delict."
WHEREFORE, the instant petition is PARTIALLY
GRANTED. The assailed Decision of the Court of
Appeals dated April 17, 2000 as well as its Resolution
dated August 16, 2000 are AFFIRMED with
MODIFICATION to the effect that the dispositive
portion of the Decision dated February 18, 1993 of the
Regional Trial Court of Dumaguete City in Civil Case
No. 8122, should read as follows:
xxx xxx xxx
No pronouncement as to costs.
SO ORDERED.
Panganiban, C.J. and Callejo, Sr., JJ., concur.
Ynares-Santiago, J., took no part.
Chico-Nazario, J., is on leave.
CADIENTE vs. MACAS
G.R. No. 161946, 14 November 2008.
QUISUMBING, Acting C.J p:
For review on certiorari are the Decision dated
September 16, 2002 and the Resolution dated December
18, 2003 of the Court of Appeals in CA-G.R. CV No.
64103, which affirmed the Decision of the Regional Trial
Court (RTC) of Davao City, Branch 10, in Civil Case No.
23,723-95.
The facts are undisputed.
Eyewitness Rosalinda Palero testified that on July 19,
1994, at about 4:00 p.m., at the intersection of Buhangin
and San Vicente Streets in Davao City, 15-year old high
school student Bithuel Macas, herein respondent, was
standing on the shoulder of the road. She was about
two and a half meters away from the respondent when
he was bumped and run over by a Ford Fiera, driven by
Chona C. Cimafranca. Rosalinda and another
unidentified person immediately came to the
respondent's rescue and told Cimafranca to take the
victim to the hospital. Cimafranca rushed the
respondent to the Davao Medical Center.
Dr. Hilario Diaz, the orthopedic surgeon who attended
to the respondent, testified that the respondent suffered
severe muscular and major vessel injuries, as well as
open bone fractures in both thighs and other parts of
his legs. In order to save his life, the surgeon had to
amputate both legs up to the groins.
Cimafranca had since absconded and disappeared.
Records showed that the Ford Fiera was registered in
the name of herein petitioner, Atty. Medardo Ag.
Cadiente. However, Cadiente claimed that when the
accident happened, he was no longer the owner of the
Ford Fiera. He alleged that he sold the vehicle to Engr.
Rogelio Jalipa on March 28, 1994, and turned over the
Certificate of Registration and Official Receipt to Jalipa,
with the understanding that the latter would be the one
to cause the transfer of the registration.
The victim's father, Samuel Macas, filed a complaint 6
for torts and damages against Cimafranca and Cadiente
before the RTC of Davao City, Branch 10. Cadiente later
filed a third-party complaint 7 against Jalipa.
In answer, Jalipa claimed that he was no longer the
owner of the Ford Fiera at the time of the accident. He
alleged that he sold the vehicle to Abraham Abubakar
on June 20, 1994. He thus filed a fourth-party complaint
against Abubakar.
After trial, the court ruled:
“WHEREFORE, judgment is
rendered in favor of the plaintiff
declaring Atty. Medardo Ag.
Cadiente and Engr. Rogelio Jalipa
jointly and severally liable for
damages to the plaintiff for their own
negligence as stated above, and
ordering them to indemnify the
plaintiff jointly and severally as
follows: xxx”
On appeal, the Court of Appeals held that the findings
of the trial court were in accordance with the
established facts and was supported by the evidence on
record. Thus, it decreed as follows: xxx
xxx xxx xxx
Essentially, the issues to be resolved are: (1) Whether
there was contributory negligence on the part of the
victim; and (2) whether the petitioner and third-party
defendant Jalipa are jointly and severally liable to the
victim.
The petitioner contends that the victim's negligence
contributed to his own mishap. The petitioner theorizes
that if witness Rosalinda Palero, who was only two and
a half meters away from the victim, was not hit by the
Ford Fiera, then the victim must have been so negligent
as to be bumped and run over by the said vehicle.
The petitioner further argues that having filed a third-
party complaint against Jalipa, to whom he had sold the
Ford Fiera, the Court of Appeals should have ordered
the latter to reimburse him for any amount he would be
made to pay the victim, instead of ordering him
solidarily liable for damages.
The respondent, for his part, counters that the
immediate and proximate cause of the injuries he
suffered was the recklessly driven Ford Fiera, which
was registered in the petitioner's name. He insists that
when he was hit by the vehicle, he was standing on the
uncemented portion of the highway, which was exactly
where pedestrians were supposed to be.
The respondent stresses that as the registered owner of
the Ford Fiera which figured in the accident, the
petitioner is primarily liable for the injury caused by the
said vehicle. He maintains that the alleged sale of the
vehicle to Jalipa was tainted with irregularity, which
indicated collusion between the petitioner and Jalipa.
After a careful consideration of the parties'
submissions, we find the petition without merit.
Article 2179 of the Civil Code provides:
When the plaintiff's own negligence
was the immediate and proximate
cause of his injury, he cannot recover
damages. But if his negligence was
only contributory, the immediate and
proximate cause of the injury being
the defendant's lack of due care, the
plaintiff may recover damages, but
the courts shall mitigate the damages
to be awarded.
The underlying precept on contributory negligence is
that a plaintiff who is partly responsible for his own
injury should not be entitled to recover damages in full,
but must proportionately bear the consequences of his
own negligence. The defendant is thus held liable only
for the damages actually caused by his negligence.
In this case, records show that when the accident
happened, the victim was standing on the shoulder,
which was the uncemented portion of the highway. As
noted by the trial court, the shoulder was intended for
pedestrian use alone. Only stationary vehicles, such as
those loading or unloading passengers may use the
shoulder. Running vehicles are not supposed to pass
through the said uncemented portion of the highway.
However, the Ford Fiera in this case, without so much
as slowing down, took off from the cemented part of
the highway, inexplicably swerved to the shoulder, and
recklessly bumped and ran over an innocent victim.
The victim was just where he should be when the
unfortunate event transpired.
202
Cimafranca, on the other hand, had no rightful business
driving as recklessly as she did. The respondent cannot
be expected to have foreseen that the Ford Fiera,
erstwhile speeding along the cemented part of the
highway would suddenly swerve to the shoulder, then
bump and run him over. Thus, we are unable to accept
the petitioner's contention that the respondent was
negligent.
Coming now to the second and third issues, this Court
has recently reiterated in PCI Leasing and Finance, Inc. v.
UCPB General Insurance Co., Inc., that the registered
owner of any vehicle, even if he had already sold it to
someone else, is primarily responsible to the public for
whatever damage or injury the vehicle may cause. We
explained,
. . . Were a registered owner allowed
to evade responsibility by proving
who the supposed transferee or
owner is, it would be easy for him, by
collusion with others or otherwise, to
escape said responsibility and
transfer the same to an indefinite
person, or to one who possesses no
property with which to respond
financially for the damage or injury
done. A victim of recklessness on the
public highways is usually without
means to discover or identify the
person actually causing the injury or
damage. He has no means other than
by a recourse to the registration in the
Motor Vehicles Office to determine
who is the owner. The protection that
the law aims to extend to him would
become illusory were the registered
owner given the opportunity to
escape liability by disproving his
ownership.
In the case of Villanueva v. Domingo, we said that the
policy behind vehicle registration is the easy
identification of the owner who can be held responsible
in case of accident, damage or injury caused by the
vehicle. This is so as not to inconvenience or prejudice a
third party injured by one whose identity cannot be
secured.
Therefore, since the Ford Fiera was still registered in
the petitioner's name at the time when the misfortune
took place, the petitioner cannot escape liability for the
permanent injury it caused the respondent, who had
since stopped schooling and is now forced to face life
with nary but two remaining limbs.
WHEREFORE, the petition is DENIED for lack of merit.
The assailed Decision dated September 16, 2002 and
Resolution dated December 18, 2003 of the Court of
Appeals in CA-G.R. CV No. 64103 are hereby
AFFIRMED. Costs against the petitioner.
203
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ.,
concur.
NATIONAL POWER CORPORATION vs.
HEIRS OF CASIONAN
G.R. No. 165969, 27 November 2008.
REYES, R.T., J p:
PETITIONING power company pleads for mitigation of
awarded damages on ground of contributory
negligence. But is the victim in this case partly to blame
for his electrocution and eventual demise?
This is a review on certiorari of the Decision of the Court
of Appeals (CA) which found the National Power
Corporation (NPC) liable for damages for the death of
Noble Casionan due to electrocution from the
company's high tension transmission lines.
The Facts
The facts, as found by the trial court are as follows:
Respondents are the parents of Noble Casionan, 19
years old at the time of the incident that claimed his life
on June 27, 1995. He would have turned 20 years of age
on November 9 of that year. Noble was originally from
Cervantes, Ilocos Sur. He worked as a pocket miner in
Dalicno, Ampucao, Itogon, Benguet.
A trail leading to Sangilo, Itogon, existed in Dalicno
and this trail was regularly used by members of the
community. Sometime in the 1970's, petitioner NPC
installed high-tension electrical transmission lines of 69
kilovolts (KV) traversing the trail. Eventually, some of
the transmission lines sagged and dangled reducing
their distance from the ground to only about eight to
ten feet. This posed a great threat to passersby who
were exposed to the danger of electrocution especially
during the wet season.
As early as 1991, the leaders of Ampucao, Itogon made
verbal and written requests for NPC to institute safety
measures to protect users of the trail from their high
tension wires. On June 18, 1991 and February 11, 1993,
Pablo and Pedro Ngaosie, elders of the community,
wrote Engr. Paterno Banayot, Area Manager of NPC, to
make immediate and appropriate repairs of the high
tension wires. They reiterated the danger it posed to
small-scale miners especially during the wet season.
They related an incident where one boy was nearly
electrocuted.
In a letter dated March 1, 1995, Engr. Banayot informed
Itogon Mayor Cresencio Pacalso that NPC had installed
nine additional poles on their Beckel-Philex 60 KV line.
They likewise identified a possible rerouting scheme
with an estimated total cost of 1.7 million pesos to
improve the distance from its deteriorating lines to the
ground.
On June 27, 1995, Noble and his co-pocket miner,
Melchor Jimenez, were at Dalicno. They cut two
bamboo poles for their pocket mining. One was 18 to 19
feet long and the other was 14 feet long. Each man
carried one pole horizontally on his shoulder: Noble
carried the shorter pole while Melchor carried the
longer pole. Noble walked ahead as both passed
through the trail underneath the NPC high tension
transmission lines on their way to their work place.
As Noble was going uphill and turning left on a curve,
the tip of the bamboo pole he was carrying touched one
of the dangling high tension wires. Melchor, who was
walking behind him, narrated that he heard a buzzing
sound when the tip of Noble's pole touched the wire for
only about one or two seconds. Thereafter, he saw
Noble fall to the ground. Melchor rushed to Noble and
shook him but the latter was already dead. Their co-
workers heard Melchor's shout for help and together
they brought the body of Noble to their camp.
A post-mortem examination by Dra. Ignacia Reyes
Ciriaco, Municipal Health Officer of Itogon, Benguet,
determined the cause of death to be cardiac arrest,
secondary to ventricular fibulation, secondary to
electrocution. She also observed a small burned area in
the middle right finger of the victim.
Police investigators who visited the site of the incident
confirmed that portions of the high tension wires above
the trail hung very low, just about eight to ten feet
above the ground. They noted that the residents, school
children, and pocket miners usually used the trail and
had to pass directly underneath the wires. The trail was
the only viable way since the other side was a precipice.
In addition, they did not see any danger warning signs
installed in the trail.
The elders and leaders of the community, through
Mayor Cresencio Pacalso, informed the General
Manager of NPC in Itogon of the incident. After
learning of the electrocution, NPC repaired the
dangling and sagging transmission lines and put up
warning signs around the area.
Consequently, the heirs of the deceased Noble filed a
claim for damages against the NPC before the Regional
Trial Court (RTC) in Benguet. In its answer, NPC
denied being negligent in maintaining the safety of the
high tension transmission lines. It averred that there
were danger and warning signs installed but these were
stolen by children. Excavations were also made to
increase the necessary clearance from the ground to
about 17 to 18 feet but some towers or poles sank due to
pocket mining in the area.
At the trial, NPC witnesses testified that the cause of
death could not have been electrocution because the
victim did not suffer extensive burns despite the strong
69 KV carried by the transmission lines. NPC argued
that if Noble did die by electrocution, it was due to his
own negligence. The company counter-claimed for
attorney's fees and cost of litigation.
RTC Disposition
On February 17, 1998, the RTC decided in favor of
respondents. The fallo of its decision reads:
xxx xxx xxx
The RTC gave more credence to the testimony of
witnesses for respondents than those of NPC who were
not actually present at the time of the incident. The trial
court observed that witnesses for NPC were biased
witnesses because they were all employed by the
company, except for the witness from the Department
of Environment and Natural Resources (DENR). The
RTC found:
“Melchor Jimenez was very vivid in
his account. He declared that he and
Noble Casionan cut two bamboo
poles, one 14 feet and the other about
18 feet. The shorter bamboo pole was
carried by Noble Casionan and the
longer bamboo pole was carried by
him. And they walked along the trail
underneath the transmission lines.
He was following Noble Casionan.
And when they were going uphill in
the trail and Noble Casionan was to
turn left in a curve, the bamboo pole
of Casionan swung around and its tip
at the back touched for one or two
seconds or for a split moment the
transmission line that was dangling
and a buzzing sound was heard. And
Casionan immediately fell dead and
simply stopped breathing. What
better account would there be than
this? Melchor Jimenez was an eye
witness as to how it all happened.
(Emphasis added)
The RTC ruled that the negligence of NPC in
maintaining the high-tension wires was established by
preponderance of evidence. On this score, the RTC
opined:
“2. On the matter of whether
plaintiffs have a cause of action
against defendant NPC, obviously,
they would have. . . . This negligence
of the NPC was well established and
cannot be denied because previous to
this incident, the attention of NPC
has already been called by several
requests and demands in 1991, 1993
and 1995 by elders and leaders of the
community in the area to the fact that
204
 their transmission lines were
dangling and sagging and the
clearance thereof from the line to the
ground was only 8 to 10 feet and not
within the standard clearance of 18 to
20 feet but no safety measures were
taken. They did not even put danger
and warning signs so as to warn
persons passing underneath.
(Emphasis added)
Disagreeing with the ruling of the trial court, NPC
elevated the case to the CA. In its appeal, it argued that
the RTC erred in ruling that NPC was liable for Noble's
death. Further, even assuming that Noble died of
electrocution, the RTC erred in not finding that he was
guilty of contributory negligence and in awarding
excessive damages.
CA Disposition
On June 30, 2004, the CA promulgated its decision,
disposing as follows:
xxx xxx xxx
The CA sustained the findings of fact of the trial court
but reduced the award of moral damages from
P100,000.00 to P50,000.00. The CA further disallowed
the award of attorney's fees because the reason for the
award was not expressly stated in the body of the
decision.
Issues
The following issues are presented for Our
consideration: (i) Whether the award for damages
should be deleted in view of the contributory
negligence of the victim; and (ii) Whether the award for
unearned income, exemplary, and moral damages
should be deleted for lack of factual and legal bases.
Our Ruling
I Investigation of the accident revealed
That the victim Noble died from being electrocuted by
the high-tension transmission wires of petitioner is not
contested by petitioner. We are, however, asked to
delete or mitigate the damages awarded by the trial and
appellate courts in view of what petitioner alleges to be
contributory negligence on the part of the victim.
As a rule, only questions of law may be entertained on
appeal by certiorari under Rule 45. The finding of
negligence on the part of petitioner by the trial court
and affirmed by the CA is a question of fact which We
cannot pass upon since it would entail going into
factual matters on which the finding of negligence was
based. 8 Corollary to this, the finding by both courts of
the lack of contributory negligence on the part of the
victim is a factual issue which is deemed conclusive
205
upon this Court absent any compelling reason for Us to
rule otherwise.
But even if We walk the extra mile, the finding of
liability on the part of petitioner must stay.
Petitioner contends that the mere presence of the high
tension wires above the trail did not cause the victim's
death. Instead, it was Noble's negligent carrying of the
bamboo pole that caused his death. It insists that Noble
was negligent when he allowed the bamboo pole he
was carrying to touch the high tension wires. This is
especially true because other people traversing the trail
have not been similarly electrocuted.
Petitioner's contentions are absurd.
The sagging high tension wires were an accident
waiting to happen. As established during trial, the lines
were sagging around 8 to 10 feet in violation of the
required distance of 18 to 20 feet. If the transmission
lines were properly maintained by petitioner, the
bamboo pole carried by Noble would not have touched
the wires. He would not have been electrocuted.
Petitioner cannot excuse itself from its failure to
properly maintain the wires by attributing negligence
to the victim. In Ma-ao Sugar Central Co., Inc. v. Court of
Appeals, this Court held that the responsibility of
maintaining the rails for the purpose of preventing
derailment accidents belonged to the company. The
company should not have been negligent in
ascertaining that the rails were fully connected than to
wait until a life was lost due to an accident. Said the
Court:
“In this petition, the respondent court
is faulted for finding the petitioner
guilty of negligence notwithstanding
its defense of due diligence under
Article 2176 of the Civil Code and for
disallowing the deductions made by
the trial court.
that the derailment of the locomotive
was caused by protruding rails which
had come loose because they were
not connected and fixed in place by
fish plates. Fish plates are described
as strips of iron 8" to 12" long and 3
1/2" thick which are attached to the
rails by 4 bolts, two on each side, to
keep the rails aligned. Although they
could be removed only with special
equipment, the fish plates that should
have kept the rails aligned could not
be found at the scene of the accident.
There is no question that the
maintenance of the rails, for the
purpose, inter alia, of preventing
 derailments, was the responsibility of
the petitioner, and that this
responsibility was not discharged.
According to Jose Reyes, its own
witness, who was in charge of the
control and supervision of its train
operations, cases of derailment in the
milling district were frequent and
there were even times when such
derailments were reported every
hour. The petitioner should therefore
have taken more prudent steps to
prevent such accidents instead of
waiting until a life was finally lost
because of its negligence.”
Moreover, We find no contributory negligence on
Noble's part.
Negligence is the failure to observe, for the protection
of the interest of another person, that degree of care,
precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers
injury. On the other hand, contributory negligence is
conduct on the part of the injured party, contributing as
a legal cause to the harm he has suffered, which falls
below the standard which he is required to conform for
his own protection. There is contributory negligence
when the party's act showed lack of ordinary care and
foresight that such act could cause him harm or put his
life in danger. It is an act or omission amounting to
want of ordinary care on the part of the person injured
which, concurring with the defendant's negligence, is
the proximate cause of the injury.
The underlying precept on contributory negligence is
that a plaintiff who is partly responsible for his own
injury should not be entitled to recover damages in full
but must bear the consequences of his own negligence.
If indeed there was contributory negligence on the part
of the victim, then it is proper to reduce the award for
damages. This is in consonance with the Civil Code
provision that liability will be mitigated in
consideration of the contributory negligence of the
injured party. Article 2179 of the Civil Code is explicit
on this score:
“When the plaintiff's own negligence
was the immediate and proximate
cause of his injury, he cannot recover
damages. But if his negligence was
only contributory, the immediate and
proximate cause of the injury being
the defendant's lack of due care, the
plaintiff may recover damages, but
the courts shall mitigate the damages
to be awarded.”
In Ma-ao Sugar Central, it was held that to hold a person
as having contributed to his injuries, it must be shown
that he performed an act that brought about his injuries
in disregard of warnings or signs on an impending
danger to health and body. This Court held then that
the victim was not guilty of contributory negligence as
there was no showing that the caboose where he was
riding was a dangerous place and that he recklessly
dared to stay there despite warnings or signs of
impending danger.
In this case, the trail where Noble was electrocuted was
regularly used by members of the community. There
were no warning signs to inform passersby of the
impending danger to their lives should they
accidentally touch the high tension wires. Also, the trail
was the only viable way from Dalicon to Itogon. Hence,
Noble should not be faulted for simply doing what was
ordinary routine to other workers in the area.
Petitioner further faults the victim in engaging in
pocket mining, which is prohibited by the DENR in the
area.
In Añonuevo v. Court of Appeals, this Court ruled that the
violation of a statute is not sufficient to hold that the
violation was the proximate cause of the injury, unless
the very injury that happened was precisely what was
intended to be prevented by the statute. In said case,
the allegation of contributory negligence on the part of
the injured party who violated traffic regulations when
he failed to register his bicycle or install safety gadgets
thereon was struck down. We quote:
“. . . The bare fact that Villagracia was
violating a municipal ordinance at
the time of the accident may have
sufficiently established some degree
of negligence on his part, but such
negligence is without legal
consequence unless it is shown that it
was a contributing cause of the
injury. If anything at all, it is but
indicative of Villagracia's failure in
fulfilling his obligation to the
municipal government, which would
then be the proper party to initiate
corrective action as a result. But such
failure alone is not determinative of
Villagracia's negligence in relation to
the accident. Negligence is relative or
comparative, dependent upon the
situation of the parties and the degree
of care and vigilance which the
particular circumstances reasonably
require. To determine if Villagracia
was negligent, it is not sufficient to
rely solely on the violations of the
municipal ordinance, but imperative
to examine Villagracia's behavior in
relation to the contemporaneous
circumstances of the accident.
xxx xxx xxx
206
 Under American case law, the
failures imputed on Villagracia are
not grievous enough so as to negate
monetary relief. In the absence of
statutory requirement, one is not
negligent as a matter of law for
failing to equip a horn, bell, or other
warning devise onto a bicycle. In
most cases, the absence of proper
lights on a bicycle does not constitute
negligence as a matter of law but is a
question for the jury whether the
absence of proper lights played a
causal part in producing a collision
with a motorist. The absence of
proper lights on a bicycle at night, as
required by statute or ordinance, may
constitute negligence barring or
diminishing recovery if the bicyclist
is struck by a motorist as long as the
absence of such lights was a
proximate cause of the collision;
however, the absence of such lights
will not preclude or diminish
recovery if the scene of the accident
was well illuminated by street lights,
if substitute lights were present
which clearly rendered the bicyclist
visible, if the motorist saw the bicycle
in spite of the absence of lights
thereon, or if the motorist would
have been unable to see the bicycle
even if it had been equipped with
lights. A bicycle equipped with
defective or ineffective brakes may
support a finding of negligence
barring or diminishing recovery by
an injured bicyclist where such
condition was a contributing cause of
the accident.
The above doctrines reveal a common
thread. The failure of the bicycle
owner to comply with accepted
safety practices, whether or not
imposed by ordinance or statute, is
not sufficient to negate or mitigate
recovery unless a causal connection is
established between such failure and
the injury sustained. The principle
likewise finds affirmation in Sanitary
Steam, wherein we declared that the
violation of a traffic statute must be
shown as the proximate cause of the
injury, or that it substantially
contributed thereto. Añonuevo had
the burden of clearly proving that the
alleged negligence of Villagracia was
the proximate or contributory cause
of the latter's injury.” (Emphasis
added)
207
That the pocket miners were unlicensed was not a
justification for petitioner to leave their transmission
lines dangling. We quote with approval the observation
of the RTC on this matter:
“The claim of NPC that the pocket
miners have no right to operate
within the area of Dalicno, Itogon,
Benguet as there was no permit
issued by DENR is beside the point.
The fact is that there were not only
pocket miners but also there were
many residents in the area of Dalicno,
Ampucao, Itogon, Benguet using the
trail. These residents were using this
trail underneath the transmission
lines . . . . They were using this trail
even before the transmission lines
were installed in the 1970's by NPC.
The pocket miners, although they
have no permit to do pocket mining
in the area, are also human beings
who have to eke out a living in the
only way they know how. The fact
that they were not issued a permit by
the DENR to do pocket mining is no
justification for NPC to simply leave
their transmission lines dangling or
hanging 8 to 10 feet above the ground
posing danger to the life and limb of
everyone in said community. . . .”
(Emphasis added)
In sum, the victim was not guilty of contributory
negligence. Hence, petitioner is not entitled to a
mitigation of its liability.
xxx xxx xxx
WHEREFORE, the petition is DENIED and the
appealed decision of the Court of Appeals AFFIRMED.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario and
Nachura, JJ., concur.
b. Assumption of Risk
AFIALDA vs. HISOLE, ET AL.
G.R. No. L-2075, 29 November 1949, 85 Phil. 67
REYES, J p:
This is an action for damages arising from injury caused
by an animal. The complaint alleges that the now
deceased, Loreto Afialda, was employed by the
defendant spouses as caretaker of their carabaos at a
fixed compensation; that while tending the animals he
was, on March 21, 1947, gored by one of them and later
died as a consequence of his injuries; that the mishap
was due neither to his own fault nor to force majeure;
and that plaintiff is his elder sister and heir depending
upon him for support.
Before filing their answer, defendants moved for the
dismissal of the complaint for lack of a cause of action,
and the motion having been granted by the lower court,
plaintiff has taken this appeal.
Plaintiff seeks to hold defendants liable under article
1905 of the Civil Code, which reads:
"The possessor of an animal, or the
one who uses the same, is liable for
any damages it may cause, even if
such animal should escape from him
or stray away.
"This liability shall cease only in case
the damage should arise from force
majeure or from the fault of the
person who may have suffered it."
The question presented is whether the owner of the
animal is liable when the damage is caused to its
caretaker.
The lower court took the view that under the above-
quoted provision of the Civil Code, the owner of an
animal is answerable only for damages caused to a
stranger, and that for damage caused to the caretaker of
the animal the owner would be liable only if he had
been negligent or at fault under article 1902 of the same
code. Claiming that the lower court was in error,
counsel for plaintiff contends that article 1905 does not
distinguish between damage caused to a stranger and
damage caused to the caretaker and makes the owner
liable whether or not he has been negligent or at fault.
For authority counsel cites the following opinion which
Manresa quotes from a decision of the Spanish Supreme
Court:
"El articulo 1905 del Codigo Civil no
consiente otra interpretacion que la
que, clara y evidentemente, se deriva
de sus terminos literales, bastando,
segun el mismo, que un animal cause
perjuicio para que nazca la
responsibilidad del dueño, aun no
imputandose a este ninguna clase de
culpa o negligencia, habida, sin duda,
cuenta por el legislador de que tal
concepto de dueño es suficiente para
que arrastre las consecuencias
favorables o adversas de esta clase de
propiedad, salvo la excepcion en el
mismo contenida." (12 Manresa,
Commentaries on the Spanish Civil
Code, 573.)
This opinion, however, appears to have been rendered
in a case where an animal caused injury to a stranger or
third person. It is therefore no authority for a case like
the present where the person injured was the caretaker
of the animal. The distinction is important. For the
statute names the possessor or user of the animal as the
person liable for "any damages it may cause," and this
for the obvious reason that the possessor or user has the
custody and control of the animal and is therefore the
one in a position to prevent it from causing damage.
In the present case, the animal was in the custody and
under the control of the caretaker, who was paid for his
work as such. Obviously, it was the caretaker's business
to try to prevent the animal from causing injury or
damage to anyone, including himself. And being
injured by the animal under those circumstances, was
one of the risks of the occupation which he had
voluntarily assumed and for which he must take the
consequences.
In a decision of the Spanish Supreme Court, cited by
Manresa in his Commentaries (Vol. 12, p. 578), the
death of an employee who was bitten by a feline which
his master had asked him to take to his establishment
was by said tribunal declared to be "a veritable accident
of labor" which should come under the labor laws
rather than under article 1905 of the Civil Code. The
present action, however, is not brought under the
Workmen's Compensation Act, there being no
allegation that, among other things, defendants'
business, whatever that might be, had a gross income of
P20,000. As already stated, defendants' liability is made
to rest on article 1905 of the Civil Code. But action
under that article is not tenable for the reasons already
stated. On the other hand, if action is to be based on
article 1902 of the Civil Code, it is essential that there be
fault or negligence on the part of the defendants as
owners of the animal that caused the damage. But the
complaint contains no allegation on those points.
There being no reversible error in the order appealed
from, the same is hereby affirmed, but without costs in
view of the financial situation of the appellant.
Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason,
Montemayor and Torres, JJ., concur.
c. Last clear chance
PICART, vs. SMITH, Jr.,
G.R. No. L-12219, 15 March 1918, 37 Phil. 809
See supra.
SPOUSES ONG vs.
METROPOLITAN WATER DISTRICT
G.R. No. L-7664, 29 August 1958.
BAUTISTA ANGELO, J p:
Plaintiffs spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador
208
Ong in one of the swimming pools operated by
defendant.
Defendant admits the fact that plaintiffs' son was
drowned in one of its swimming pools but avers that
his death was caused by his own negligence or by
unavoidable accident. Defendant also avers that it had
exercised due diligence in the selection of, and
supervision over, its employees and that it had
observed the diligence required by law under the
circumstances.
After trial, the lower court found that the action of
plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the
case on appeal directly to this Court because the
amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational
swimming pools at its Balara filters, Diliman, Quezon
City, to which people are invited and for which a
nominal fee of P0.50 for adults and P0.20 for children is
charged. The main pool is between two small pools of
oval shape known as the "Wading pool" and the
"Beginners Pool." There are diving boards in the big
pools and the depths of the water at different parts are
indicated by appropriate marks on the wall. The care
and supervision of the pools and the users thereof is
entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six
lifeguards who had taken the life-saving course given
by the Philippine Red Cross at the YMCA in Manila.
For the safety of its patrons, defendant has provided the
pools with a ring buoy, toy roof, towing line, saving kit
and a resuscitator. There is also a sanitary inspector
who is in charge of a clinic established for the benefit of
the patrons. Defendant has also on display in a
conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits
the swimming in the pool alone or without any
attendant. Although defendant does not maintain a
full- time physician in the swimming pool compound, it
has however a nurse and a sanitary inspector ready to
administer injections or operate the oxygen resuscitator
if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and
a boy scout, and his brothers Ruben and Eusebio, went
to defendant's swimming pools. This was not the first
time that the three brothers had gone to said
natatorium for they had already been there four or five
times before. They arrived at the natatorium at about
1:45 p.m. After paying the requisite admission fee, they
immediately went to one of the small pools where the
water was shallow. At about 4:35 p.m., Dominador Ong
told his brothers that he was going to the locker room
in an adjoining building to drink a bottle of coke. Upon
hearing this, Ruben and Eusebio went to the bigger
pool leaving Dominador in the small pool and so they
did not see the latter when he left the pool to get a
bottle of coke. In that afternoon, there were two
209
lifeguards on duty in the pool compound, namely,
Manuel Abaño and Mario Villanueva. The tour of duty
of Abaño was from 8:00 to 12:00 in the morning and
from 2:00 to 6:00 in the afternoon, and of Villanueva
from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m.
Between 4:00 to 5:00 that afternoon, there were about
twenty bathers inside the pool area and Manuel Abaño
was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the
pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water
for quite a long time. Another boy informed lifeguard
Manuel Abaño of the same happening and Abaño
immediately jumped into the big swimming pool and
retrieved the apparently lifeless body of Dominador
Ong from the bottom. The body was placed at the edge
of the pool and Abaño immediately applied manual
artificial respiration. Soon after, male nurse Armando
Rule came to render assistance, followed by sanitary
inspector Iluminado Vicente who, after being called by
phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy
with camphorated oil. After the injection, Vicente left
on a jeep in order to fetch Dr. Ayuyao from the
University of the Philippines. Meanwhile, Abaño
continued the artificial manual respiration, and when
this failed to revive him, they applied the resuscitator
until the two oxygen tanks were exhausted. Not long
thereafter, Dr. Ayuyao arrived with another
resuscitator, but the same became of no use because he
found the boy already dead. The doctor ordered that
the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the
incident was investigated by the Police Department of
Quezon City and in the investigation boys Ruben Ong
and Andres Hagad, Jr. gave written statements. On the
following day, July 6, 1952, an autopsy was performed
by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found
in the body of the deceased the following: an abrasion
on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right
side; a congestion in the brain with petechial subcortical
hemorrhage, frontal lobe; cyanosis on the face and on
the nails; the lung was soggy with fine froth in the
bronchioles; dark fluid blood in the heart; congestion in
the visceral organs, and brownish fluid in the stomach.
The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of
minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to
entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in
relation to Article 2180 of the new Civil Code. The first
article provides that "whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damages done."
Such fault or negligence is called quasi-delict. Under the
second article, this obligation is demandable not only
for one's own acts or omissions but also for those of
persons for whom one is responsible. In addition, we
may quote the following authorities cited in the
decision of the trial court:
"'The rule is well settled that the
owners of resorts to which people
generally are expressly or by
implication invited are legally bound
to exercise ordinary care and
prudence in the management and
maintenance of such resorts, to the
end of making them reasonably safe
for visitors' (Larkin vs. Saltair Beach
Co., 30 Utah 86, 83 Pac. 688).
"'Although the proprietor of a
natatorium is liable for injuries to a
patron, resulting from lack of
ordinary care in providing for his
safety, without the fault of the patron,
he is not, however, in any sense
deemed to be the insurer of the safety
of patrons. And the death of a patron
within his premises does not cast
upon him the burden of excusing
himself from any presumption of
negligence' (Bertalot vs. Kinnare. 72
Ill. App. 52, 22 A. L. R. 635; Flora vs.
Bimini Water Co., 161 Cal. 495, 119
Pac. 661). Thus in Bertalot vs.
Kinnare, supra, it was held that there
could be no recovery for the death by
drowning of a fifteen-year boy in
defendant's natatorium, where it
appeared merely that he was lastly
seen alive in water at the shallow end
of the pool, and some ten or fifteen
minutes later was discovered
unconscious, and perhaps lifeless, at
the bottom of the pool, all efforts to
resuscitate him being without avail."
Since the present action is one for damages founded on
culpable negligence, the principle to be observed is that
the person claiming damages has the burden of proving
that the damage is caused by the fault or negligence of
the person from whom the damage is claimed, or of one
of his employees (Walter A. Smith & Co. vs. Cadwallader
Gibson Lumber Co., 55 Phil., 517). The question then that
arises is: Have appellants established by sufficient
evidence the existence of fault or negligence on the part
of appellee so as to render it liable for damages for the
death of Dominador Ong?
There is no question that appellants had striven to
prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not
placing at the swimming pools efficient and competent
employees who may render help at a moment's notice,
and they ascribed such negligence to appellee because
the lifeguard it had on the occasion minor Ong was
drowning was not available or was attending to
something else with the result that his help came late.
Thus, appellants tried to prove through the testimony
of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a
drowning person in the bottom of the big swimming
pool and shouted to the lifeguard for help, lifeguard
Manuel Abaño did not immediately respond to the
alarm and it was only upon the third call that he threw
away the magazine he was reading and allowed three
or four minutes to elapse before retrieving the body
from the water. This negligence of Abaño, they
contend, is attributable to appellee.
But the claim of these two witnesses not only was
vehemently denied by lifeguard Abaño, but is belied by
the written statements given by them in the
investigation conducted by the Police Department of
Quezon City approximately three hours after the
happening of the accident. Thus, these two boys
admitted in the investigation that they narrated in their
statements everything they knew of the accident, but,
as found by the trial nowhere in said statements do
they state that the lifeguard was chatting with the
security guard at the gate of the swimming pool or was
reading a comic magazine when the alarm was given
for which reason he failed to immediately respond to
the alarm. On the contrary, what Ruben Ong
particularly emphasized therein was that after the
lifeguard heard the shouts for help, the latter
immediately dived into the pool to retrieve the person
under water who turned out to be his brother. For this
reason, the trial court made this conclusion: "The
testimony of Ruben Ong and Andres Hagad, Jr. as to
the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be
disregarded because they are belied by their written
statements." (Emphasis supplied.).
On the other hand, there is sufficient evidence to show
that appellee has taken all necessary precautions to
avoid danger to the lives of its patrons or prevent
accident which may cause their death. Thus, it has been
shown that the swimming pools of appellee are
provided with a ring buoy, toy roof, towing line,
oxygen resuscitator and a first aid medicine kit. The
bottom of the pools is painted with black colors so as to
insure clear visibility. There is on display in a
conspicuous place within the area certain rules and
regulations governing the use of the pools. Appellee
employs six lifeguards who are all trained as they had
taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on
schedule prepared by their chief and arranged in such a
way as to have two guards at a time on duty to look
after the safety of the bathers. There is a male nurse and
a sanitary inspector with a clinic provided with oxygen
resuscitator. And there are security guards who are
available always in case of emergency. .
210
The record also shows that when the body of minor
Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to bring
him back to life. Thus, after he was placed at the edge of
the pool, lifeguard Abaño immediately gave him
manual artificial respiration. Soon thereafter, nurse
Armando Rule arrived, followed by sanitary inspector
Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy
was abnormal, the inspector immediately injected him
with camphorated oil. When the manual artificial
respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And
while all these efforts were being made, they sent for
Dr. Ayuyao from the University of the Philippines who
however came late because upon examining the body
found him to be already dead. All of the foregoing
shows that appellee has done what is humanly possible
under the circumstances to restore life to minor Ong
and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability
of appellee may not be of much help, appellants now
switch to the theory that even if it be assumed that the
deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the
doctrine of "last clear chance" for the reason that,
having the last opportunity to save the victim, it failed
to do so.
We do not see how this doctrine may apply,
considering that the record does not show how minor
Ong came into the big swimming pool. The only thing
the record discloses is that minor Ong informed his
elder brothers that he was going to the locker room to
drink a bottle of coke but that from that time on nobody
knew what happened to him until his lifeless body was
retrieved. The doctrine of last clear chance simply
means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant
where it appears that the latter, by exercising
reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a
person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent
acts of his opponent or the negligence of a third person
which is imputed to his opponent, is considered in law
solely responsible for the consequences of the accident."
(38 Am. Jur. pp. 900-902)
"It goes without saying that the
plaintiff himself was not free from
fault, for he was guilty of antecedent
negligence in planting himself in 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
211
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 a person who has the last clear
chance 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." (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big
swimming pool and it being apparent that he went
there without any companion in violation of one of the
regulations of appellee as regards the use of the pools,
and it appearing that lifeguard Abaño responded to the
call for help as soon as his attention was called to it and
immediately after retrieving the body all efforts at the
disposal of appellee had been put into play in order to
bring him back to life, it is clear that there is no room
for the application of the doctrine now invoked by
appellants to impute liability to appellee.
"The last clear chance doctrine can
never apply where the party charged
is required to act instantaneously,
and if the injury cannot be avoided
by the application of all means at
hand after the peril is or should have
been discovered; at least in cases in
which any previous negligence of the
party charged cannot be said to have
contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350,
2, P2d 1063." (A.L.R. Digest, Vol. 8,
pp. 955-956)
Before closing, we wish to quote the following
observation of the trial court, which we find supported
by the evidence: "There is (also) a strong suggestion
coming from the expert evidence presented by both
parties that Dominador Ong might have dived where
the water was only 5.5 feet deep, and in so doing he
might have hit or bumped his forehead against the
bottom of the pool, as a consequence of which he was
stunned, and which eventually led to his drowning. As
a boy scout he must have received instructions in
swimming. He knew, or must have known, that it was
dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in
accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A.,
Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,
concur.
ANURAN, ET AL. vs. BUÑO, ET AL.
G.R. Nos. L-21353 and L-21354, 20 May 1966,
17 SCRA 224

BENGZON, C.J p:
At noon of January 12, 1958, a passenger jeepney was
parked on the road to Taal, Batangas. A motor truck
speeding along, negligently bumped it from behind,
with such violence that three of its passengers died,
even as two others (passengers too) suffered injuries
that required their confinement at the Provincial
Hospital for many days.
So, in February 1958 these suits were instituted by the
representatives of the dead and of the injured, to
recover consequential damages against the driver and
the owners of the truck and also against the driver and
the owners of the jeepney.
The Batangas court of first instance, after trial, rendered
judgment absolving the driver of the jeepney and its
owners, but it required the truck driver and the owners
thereof to make compensation.
The plaintiffs appealed to the Court of Appeals
insisting that the driver and the owners of the jeepney
should also be made liable for damages.
The last mentioned court, upon reviewing the record,
declared that:
"It is admitted that at about noon-
time on January 13, 1958, the
passenger jeepney owned by
defendants spouses Pedro Gahol and
Luisa Alcantara, bearing plate No.
TPU-13548, then being driven by
their regular driver, defendant Pepito
Buño, was on its regular route
travelling from Mahabang Ludlod,
Taal, Batangas, towards the poblacion
of the said municipality. When said
passenger jeepney crossed the bridge
separating Barrios Mahabang Ludlod
and Balisong, Taal, Batangas, it had
fourteen passengers, excluding the
driver, according to the testimony of
defendant Buño (pp. 12 & 18, t.s.n.
July 17, 1958), or sixteen passengers
according to the testimony of plaintiff
Edita de Sagun, (pp. 9, 12 & 13, t.s.n.
June 26, 1958). However, the facts
remains that the vehicle was
overloaded with passengers at the
time, because according to the partial
stipulation of facts "the maximum
capacity of the Jeepney bearing plate
No. TPU-13548 of said defendants
was eleven (11) passengers including
the driver." (Printed Rec. on Appeal,
pp. 35, 37.)
"After crossing the bridge, defendant
Buño stopped his vehicle in order to
allow one of his passengers to alight.
But he so parked his jeepney in such
a way that one-half of its width (the
left wheels) — was on the asphalted
pavement of the road and the other
half, on the right shoulder of said
road (pp. 21-22, t.s.n. May 26, 1958; p.
12 t.s.n. July 17, 1958). Approximately
five minutes later and before Buño
could start his vehicle, a speeding
water truck, which bore plate No. T-
17526 and owned by defendants-
spouses Anselmo Maligaya and
Ceferina Aro, then being driven by
Guillermo Razon from the direction
of Mahabang Ludlod, Taal, Batangas,
towards the poblacion of that
municipality, violently smashed
against the parked jeepney from
behind, causing it to turn turtle into a
nearby ditch."
Then said Appellate Court went on to affirm the
exoneration of the jeepney driver and of its owners. It
explained that although "the driver of the ill-starred
vehicle Was not free from fault, for he was guilty of an
antecedent negligence in parking his vehicle with a
portion thereof occupying the asphalted road", it
considered the truck driver guilty of greater negligence
which was the efficient cause of the collision; and
applying the doctrine of the "last clear chance" said
court ordered the owners of the truck to pay, solidarily
with its driver, damages as follows:
". . . the sum of P6,000.00 for the
death of their daughter Emelita,
another sum of P5,000.00 as moral
damages and the sum of P500.00 as
actual damages, and to plaintiffs
Simplicio, Alberto, Avelina and
Alfredo, all surnamed Arriola, and
represented by their guardian ad
litem Agustin Arriola, the sum of
P6,000.00 for the death of their
natural mother, Leonor Masongsong,
another sum of P5,000.00 as moral
damages, the sum of P3,600.00 for
loss of earning capacity of said
deceased and the sum of P850.00 as
actual damages."
The plaintiff brought the matter to this Supreme Court
insisting that the driver and the owners of the jeepney
should also be made liable.
We gave due course to the petition for review, because
we thought the decision meant exoneration of the
carrier from liability to its passengers, notwithstanding
the negligence of its driver.
Upon further and more extended consideration of the
matter, we have become convinced that error of law
212
was committed in releasing the jeepney from liability. It
must be remembered that the obligation of the carrier to
transport its passengers safely is such that the New
Civil Code requires "utmost diligence" from the carriers
(Act. 1755) who are "presumed to have been at fault or
to have acted negligently, unless they prove that they
have observed extraordinary diligence" (Art. 1756). In
this instance, this legal presumption of negligence is
confirmed by the Court of Appeals' finding that the
driver of the jeepney in question was at fault in parking
the vehicle improperly. It must follow that the driver —
and the owners — of the jeepney must answer for
injuries to its passengers.
The principle about the "last clear chance" would call
for application in a suit between the owners and drivers
of the two colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to
enforce its contractual obligation. For it would be
inequitable to exempt the negligent driver of the
jeepney and its owners on the ground that the other
driver was likewise guilty of negligence.
Now, as to damages. The driver and the owners of the
truck have not appealed from the Court of Appeals'
assessment. 'The plaintiffs (petitioners) have not asked
here for a greater amount of indemnity. They merely
pray for a declaration that Pepito Buño, Pedro Gahol
and Luisa Alcantara (the driver and the owners of the
jeepney, respectively) be declared jointly and severally
liable with the other defendants.
WHEREFORE, affirming the decision under review, we
hereby modify it in the sense prayed for by plaintiffs-
petitioners. The three defendants last mentioned are
required to pay solidarily with the other defendants-
respondents the amounts fixed by the appealed
decision. Costs of both appeals against said three
defendants. So ordered.
Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon,
Regala, Makalintal and Bengzon, J.P., JJ., concur.
Barrera and Sanchez, JJ., took no part.
PHOENIX CONSTRUCTION, INC., ET AL. vs.
THE INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 65295, 10 March 1987.
See supra.
GLAN PEOPLE'S LUMBER AND HARDWARE, ET
AL. vs. INTERMEDIATE APPELLATE COURT,
ET AL.
G.R. No. 70493, 18 May 1989
NARVASA, J p:
There is a two-fold message in this judgment that bears
stating at the outset. The first, an obvious one, is that it
is the objective facts established by proofs presented in
a controversy that determine the verdict, not the plight
213
of the persons involved, no matter how deserving of
sympathy and commiseration because, for example, an
accident of which they are the innocent victims has
brought them to reduced circumstances or otherwise
tragically altered their lives. The second is that the
doctrine laid done many, many years ago in Picart vs.
Smith, continues to be good law to this day.
The facts giving rise to the controversy at bar are tersely
and quite accurately recounted by the Trial Court as
follows:
"Engineer Orlando T. Calibo,
Agripino Roranes, and Maximo Patos
were on the jeep owned by the
Bacnotan Consolidated Industries,
Inc., with Calibo at the wheel, as it
approached from the South Lizada
Bridge going towards the direction of
Davao City at about 1:45 in the
afternoon of July 4, 1979. At about
that time, the cargo truck, loaded
with cement bags, GI sheets,
plywood, driven by defendant Paul
Zacarias y Infante, coming from the
opposite direction of Davao City and
bound for Glan, South Cotabato, had
just crossed said bridge. At about 59
yards after crossing the bridge, the
cargo truck and the jeep collided as a
consequence of which Engineer
Calibo died while Roranes and Patos
sustained physical injuries. Zacarias
was unhurt. As a result of the impact,
the left side of the truck wag slightly
damaged while the left side of the
jeep, including its fender and hood,
was extensively damaged. After the
impact, the jeep fell and rested on its
right side on the asphalted road a few
meters to the rear of the truck, while
the truck stopped on its wheels on
the road.
On November 27, 1979, the instant
case for damages was filed by the
surviving spouse and children of the
late Engineer Calibo who are
residents of Tagbilaran City against
the driver and owners of the cargo
truck.
For failure to file its answer to the
third party complaint, third party
defendant, which insured the cargo
truck involved, was declared in
default."
The case filed by the heirs of Engineer Calibo — his
widow and minor children, private respondents herein
— was docketed as Civil Case No. 3283 of the Court of
First Instance of Bohol. Named defendants in the
complaint were "Felix S. Agad, George Lim and Felix
Lim . . . (who) appear to be the co-owners of the Glan
People's Lumber and Hardware . . . (and) Paul Zacarias
y Infante." The defendants' answer however alleged
that the lumber and hardware business was exclusively
owned by George Y. Lim, this being evidenced by the
Certificate of Registration issued by the Bureau of
Domestic Trade; Fabio S. Agad was not a co-owner
thereof but "merely employed by . . . George Y. Lim as
bookkeeper"; and Felix Lim had no connection
whatever with said business, "he being a child only
eight (8) years of age."
"After (trial, and) a careful evaluation of the evidence,
both testimonial and documentary," the Court reached
the conclusion "that the plaintiffs failed to establish by
preponderance of evidence the negligence, and thus the
liability, of the defendants." Accordingly, the Court
dismissed the complaint (and defendants'
counterclaim) "for insufficiency of evidence." Likewise
dismissed was third-party complaint presented by the
defendants against the insurer of the truck. The
circumstances leading to the Court's conclusion just
mentioned, are detailed in the Court's decision, as
follows:
1. Moments before its collision with the truck being
operated by Zacarias, the jeep of the deceased
Calibo was "zigzagging."
2. Unlike Zacarias who readily submitted himself to
investigation by the police, Calibo's companions,
Roranes (an accountant), and Patos, who suffered
injuries on account of the collision, refused to be so
investigated or give statements to the police
officers. This, plus Roranes' waiver of the right to
institute criminal proceedings against Zacarias, and
the fact that indeed no criminal case was ever
instituted in Court against Zacarias, were "telling
indications that they did not attribute the
happening to defendant Zacarias' negligence or
fault."
3. Roranes' testimony, given in plaintiffs' behalf, was
"not as clear and detailed as that of . . . Zacarias,"
and was "uncertain and even contradicted by the
physical facts and the police investigators Dimaano
and Esparcia."
4. That there were skid marks left by the truck's tires
at the scene, and none by the jeep, demonstrates
that the driver of the truck had applied the brakes
and the jeep's driver had not; and that the jeep had
on impact fallen on its right side is indication that it
was running at high speed. Under the
circumstances, according to the Court, given "the
curvature of the road and the descending grade of
the jeep's lane, it was negligence on the part of the
driver of the jeep, Engr. Calibo, for not reducing his
speed upon sight of the truck and failing to apply
the brakes as he got within collision range with the
truck."
5. Even if it be considered that there was some
antecedent negligence on the part of Zacarias
shortly before the collision, in that he had caused
his truck to run some 25 centimeters to the left of
the center of the road, Engr. Calibo had the last
clear chance of avoiding the accident because he
still had ample room in his own lane to steer clear
of the truck, or he could simply have braked to a
full stop.
The Court of Appeals saw things differently. It
rendered judgment on the plaintiffs' appeal, reversing
the decision of the Trial Court. It found Zacarias to be
negligent on the basis of the following circumstances, to
wit:
1) "the truck driven by defendant Zacarias occupied
the lane of the jeep when the collision occurred,"
and although Zacarias saw the jeep from a distance
of about 150 meters, he "did not drive his truck
back to his lane in order to avoid collision with the
oncoming jeep . . . ;" 11 what is worse, "the truck
driver suddenly applied his brakes even as he
knew that he was still within the lane of the jeep;"
12 had both vehicles stayed in their respective
lanes, the collision would never have occurred,
they would have passed "alongside each other
safely;"
2) Zacarias had no license at the time; what he handed
to Pfc. Esparcia, on the latter's demand, was the
"driver's license of his co-driver Leonardo
Baricuatro;"
3) the waiver of the right to file criminal charges
against Zacarias should not be taken against
"plaintiffs" Roranes and Patos who had the right,
under the law, to opt merely to bring a civil suit.
The Appellate Court opined that Zacarias' negligence
"gave rise to the presumption of negligence on the part
of his employer, and their liability is both primary and
solidary." It therefore ordered "the defendants jointly
and solidarily to indemnify the plaintiffs the following
amounts:
xxx xxx xxx
The defendants George Lim, Felix Lim, Fabio S. Agad
and Paul Zacarias have appealed to this Court on
certiorari and pray for a reversal of the judgment of the
Intermediate Appellate Court which, it is claimed,
ignored or ran counter to the established facts. A
review of the record confirms the merit of this assertion
and persuades this Court that said judgment indeed
disregarded facts clearly and undisputably
demonstrated by the proofs. The appealed judgment,
consequently, will have to be reversed.
The finding that "the truck driven by defendant Paul
Zacarias occupied the lane of the jeep when the
214
collision occurred" is a loose one, based on nothing
more than the showing that at the time of the accident,
the truck driven by Zacarias had edged over the
painted center line of the road into the opposite lane by
a width of twenty-five (25) centimeters. It ignores the
fact that by the uncontradicted evidence, the actual
center line of the road was not that indicated by the
painted stripe but, according to measurements made
and testified by Patrolman Juanito Dimaano, one of the
two officers who investigated the accident, correctly lay
thirty-six (36) centimeters farther to the left of the
truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a
witness for the private respondents, is to the effect that
the jeep's lane was three (3) meters and seventy-five
(75) centimeters wide, and that of the truck three (3)
meters and three (3) centimeters, measured from the
center stripe to the corresponding side lines or outer
edges of the road. 17 The total width of the road being,
therefore, six (6) meters and seventy-eight (78)
centimeters, the true center line equidistant from both
side lines would divide the road into two lanes each
three (meters) and thirty-nine (39) centimeters wide.
Thus, although it was not disputed that the truck
overrode the painted stripe by twenty-five (25)
centimeters, it was still at least eleven (11) centimeters
away from its side of the true center line of the road
and well inside its own lane when the accident
occurred. By this same reckoning, since it was
unquestionably the jeep that rammed into the stopped
truck, it may also be deduced that it (the jeep) was at
the time travelling beyond its own lane and intruding
into the lane of the truck by at least the same 11-
centimeter width of space.
Not only was the truck's lane, measured from the
incorrectly located center stripe uncomfortably narrow,
given that vehicle's width of two (2) meters and forty-
six (46) centimeters; the adjacent road shoulder was
also virtually impassable, being about three (3) inches
lower than the paved surface of the road and "soft" —
not firm enough to offer traction for safe passage —
besides which, it sloped gradually down to a three foot-
deep ravine with a river below. The truck's lane as
erroneously demarcated by the center stripe gave said
vehicle barely half a meter of clearance from the edge of
the road and the dangerous shoulder and little room for
maneuver, in case this was made necessary by traffic
contingencies or road conditions, if it always kept to
said lane. It being also shown that the accident
happened at or near the point of the truck's approach to
a curve, which called for extra precautions against
driving too near the shoulder, it could hardly be
accounted negligent on the part of its driver to intrude
temporarily, and by only as small as a twenty-five
centimeter-wide space (less than ten inches), into the
opposite lane in order to insure his vehicle's safety.
This, even supposing that said maneuver was in fact an
intrusion into the opposite lane, which was not the case
at all as just pointed out.
215
Nor was the Appellate Court correct in finding that
Paulino Zacarias had acted negligently in applying his
brakes instead of getting back inside his lane upon
espying the approaching jeep. Being well within his
own lane, as has already been explained, he had no
duty to swerve out of the jeep's way as said Court
would have had him do. And even supposing that he
was in fact partly inside the opposite lane, coming to a
full stop with the jeep still thirty (30) meters away
cannot be considered an unsafe or imprudent action,
there also being uncontradicted evidence that the jeep
was "zigzagging" and hence no way of telling in which
direction it would go as it approached the truck.
Also clearly erroneous is the finding of the Intermediate
Appellate Court that Zacarias had no driver's license at
the time. The traffic accident report attests to the
proven fact that Zacarias voluntarily surrendered to the
investigating officers his driver's license, valid for 1979,
that had been renewed just the day before the accident,
on July 3, 1979. The Court was apparently misled by
the circumstance that when said driver was first asked
to show his license by the investigators at the scene of
the collision, he had first inadvertently produced the
license of a fellow driver, Leonardo Baricuatro, who
had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato.
The evidence not only acquits Zacarias of any
negligence in the matter; there are also quite a few
significant indicators that it was rather Engineer
Calibo's negligence that was the proximate cause of the
accident. Zacarias had told Patrolman Dimaano at the
scene of the collision and later confirmed in his written
statement at the police headquarters that the jeep had
been "zigzagging," which is to say that it was travelling
or being driven erratically at the time. The other
investigator, Patrolman Jose Esparcia, also testified that
eyewitnesses to the accident had remarked on the jeep's
"zigzagging." There is moreover more than a
suggestion that Calibo had been drinking shortly before
the accident. The decision of the Trial Court adverts to
further testimony of Esparcia to the effect that three of
Calibo's companions at the beach party he was driving
home from when the collision occurred, who, having
left ahead of him went to the scene when they heard
about the accident, had said that there had been a
drinking spree at the party and, referring to Calibo, had
remarked: "Sabi na huag nang mag drive . . . pumipilit,"
(loosely translated, "He was advised not to drive, but he
insisted.")
It was Calibo whose driver's license could not be found
on his person at the scene of the accident, and was
reported by his companions in the jeep as having been
lost with his wallet at said scene, according to the traffic
accident report, Exhibit "J". Said license unexplainedly
found its way into the record some two years later.
Reference has already been made to the finding of the
Trial Court that while Zacarias readily submitted to
interrogation and gave a detailed statement to the
police investigators immediately after the accident,
Calibo's two companions in the jeep and supposed
eyewitnesses, Agripino Roranes and Maximo Patos,
refused to give any statements. Furthermore, Roranes
who, together with Patos, had sustained injuries as a
result of the collision, waived his right to file a criminal
case against Zacarias.
Even, however, ignoring these telltale indicia of
negligence on the part of Calibo, and assuming some
antecedent negligence on the part of Zacarias in failing
to keep within his designated lane, incorrectly
demarcated as it was, the physical facts, either
expressly found by the Intermediate Appellate Court or
which may be deemed conceded for lack of any
dispute, would still absolve the latter of any actionable
responsibility for the accident under the rule of the last
clear chance.
Both drivers, as the Appellate Court found, had a full
view of each other's vehicle from a distance of one
hundred fifty meters. Both vehicles were travelling at a
speed of approximately thirty kilometers per hour. The
private respondents have admitted that the truck was
already at a full stop when the jeep plowed into it. And
they have not seen fit to deny or impugn petitioners'
imputation that they also admitted the truck had been
brought to a stop while the jeep was still thirty meters
away. From these facts the logical conclusion emerges
that the driver of the jeep had what judicial doctrine has
appropriately called the last clear chance to avoid the
accident, while still at that distance of thirty meters
from the truck, by stopping in his turn or swerving his
jeep away from the truck, either of which he had
sufficient time to do while running at a speed of only
thirty kilometers per hour. In those circumstances, his
duty was to seize that opportunity of avoidance, not
merely rely on a supposed right to expect, as the
Appellate Court would have it, the truck to swerve and
leave him a clear path.
The doctrine of the last clear chance provides as valid
and complete a defense to accident liability today as it
did when invoked and applied in the 1918 case of Picart
vs. Smith, supra, which involved a similar state of facts.
Of those facts, which should be familiar to every
student of law, it is only necessary to recall the
summary made in the syllabus of this Court's decision
that:
"(t)he 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 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. . . . ."
Plaintiff Picart was thrown off his horse and suffered
contusions which required several days of medical
attention. He sued the defendant Smith for the value of
his animal, medical expenses and damage to his
apparel and obtained judgment from this Court which,
while finding that there was negligence on the part of
both parties, held that of the defendant was the
immediate and determining cause of the accident and
that of the plaintiff ". . . the more remote factor in the
case":
"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 consequences, without reference
to the prior negligence of the other
party."
Since said ruling clearly applies to exonerate petitioner
Zacarias and his employer (and co-petitioner) George
Lim, an inquiry into whether or not the evidence
support the latter's additional defense of due diligence
in the selection and supervision of said driver is no
longer necessary and will not be undertaken. The fact is
that there is such evidence in the record which has not
been controverted.
xxx xxx xxx
WHEREFORE, the appealed judgment of the
Intermediate Appellate Court is hereby REVERSED,
and the complaint against herein petitioners in Civil
Case No. 3283 of the Court of First Instance of Bohol,
Branch IV, is DISMISSED. No pronouncement as to
costs.
SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ.,
concur.
PANTRANCO NORTH EXPRESS, INC. vs.
BAESA, ET AL.
G.R. Nos. 79050-51, 14 November 1989.
216
CORTES, J p:
In this Petition, Pantranco North Express Inc.
(PANTRANCO), asks the Court to review the decision
of the Court of Appeals in CA-G.R. No. 05494-95 which
affirmed the decisions of the Court of First Instance of
Rosales, Pangasinan in Civil Case No. 561-R and Civil
Case No. 589-R wherein PANTRANCO was ordered to
pay damages and attorney's fees to herein private
respondents.
The pertinent fact are as follows:
At about 7:00 o'clock in the morning of June 12, 1981,
the spouses Ceasar and Marilyn Baesa and their
children Harold Jim, Marcelino and Maricar, together
with spouses David Ico and Fe O. Ico with their son
Erwin Ico and seven other persons, were aboard a
passenger jeepney on their way to a picnic at Malalam
River, Ilagan, Isabela, to celebrate the fifth wedding
anniversary of Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the
passenger jeepney driven by David Ico, who was also
the registered owner thereof. From Ilagan, Isabela, they
proceeded to Barrio Capayacan to deliver some viands
to one Mrs. Bascos and thenceforth to San Felipe, taking
the highway going to Malalam River. Upon reaching
the highway, the jeepney turned right and proceeded to
Malalam River at a speed of about 20 kph. While they
were proceeding towards Malalam River, a speeding
PANTRANCO bus from Aparri, on its regular route to
Manila, encroached on the jeepney's lane while
negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar
Baesa and Marilyn Baesa and their children, Harold Jim
and Marcelino Baesa, died while the rest of the
passengers suffered injuries. The jeepney was
extensively damaged. After the accident the driver of
the PANTRANCO Bus, Ambrosio Ramirez, boarded a
car and proceeded to Santiago, Isabela. From that time
on up to the present, Ramirez has never been seen and
has apparently remained in hiding.
All the victims and/or their surviving heirs except
herein private respondents settled the case amicably
under the "No Fault" insurance coverage of
PANTRANCO.
Maricar Baesa through her guardian Francisca O.
Bascos and Fe O. Ico for herself and for her minor
children, filed separate actions for damages arising
from quasi-delict against PANTRANCO, respectively
docketed as Civil Case No. 561-R and 589-R of the
Court of First Instance of Pangasinan.
In its answer, PANTRANCO, aside from pointing to the
late David Ico's alleged negligence as the proximate
cause of the accident, invoked the defense of due
diligence in the selection and supervision of its driver,
Ambrosio Ramirez.
217
On July 3, 1984, the CFI of Pangasinan rendered a
decision against PANTRANCO awarding the total
amount of Two Million Three Hundred Four Thousand
Six Hundred Forty-Seven (P2,304,647.00) as damages,
plus 10% thereof as attorney's fees and costs to Maricar
Baesa in Civil Case No. 561-R, and the total amount of
Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10%
thereof as attorney's fees and costs to Fe Ico and her
children in Civil Case No. 589-R. On appeal, the cases
were consolidated and the Court of Appeals modified
the decision of the trial court by ordering
PANTRANCO to pay the total amount of One Million
One Hundred Eighty-Nine Thousand Nine Hundred
Twenty Seven Pesos (P1,189,927.00) as damages, plus
Twenty Thousand Pesos (P20,000.00) as attorney's fees
to Maricar Baesa, and the total amount of Three
Hundred Forty-Four Thousand Pesos (P344,000.00)
plus Ten Thousand Pesos (P10,000.00) as attorney's fees
to Fe Ico and her children, and to pay the costs in both
cases. The dispositive portion of the assailed decision
reads as follows:
xxx xxx xxx
Petitioner faults the Court of Appeals for not applying
the doctrine of the "last clear chance" against the
jeepney driver. Petitioner claims that under the
circumstances of the case, it was the driver of the
passenger jeepney who had the last clear chance to
avoid the collision and was therefore negligent in
failing to utilize with reasonable care and competence
his then existing opportunity to avoid the harm.
The doctrine of the last clear chance was defined by this
Court in the case of Ong v. Metropolitan Water District,
104 Phil. 397 (1958), in this wise:
“The doctrine of the last clear chance
simply, means that the negligence of
a claimant does not preclude a
recovery for the negligence of
defendant where it appears that the
latter, by exercising reasonable care
and prudence, might have avoided
injurious consequences to claimant
notwithstanding his negligence.”
The doctrine applies only in a situation where the
plaintiff was guilty of prior or antecedent negligence
but the defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made liable
for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff
[Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber
and Hardware, et al. v. Intermediate Appellate Court, Cecilia
Alferez Vda. de Calibo, et al., G.R. No. 70493, May 18,
1989]. The subsequent negligence of the defendant in
failing to exercise ordinary care to avoid injury to
plaintiff becomes the immediate or proximate cause of
the accident which intervenes between the accident and
the more remote negligence of the plaintiff, thus
making the defendant liable to the plaintiff [Picart v.
Smith, supra].
Generally, the last clear chance doctrine is invoked for
the purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat
claim for damages.
To avoid liability for the negligence of its driver,
petitioner claims that the original negligence of its
driver was not the proximate cause of the accident and
that the sole proximate cause was the supervening
negligence of the jeepney driver David Ico in failing to
avoid the accident. It is petitioner's position that even
assuming arguendo, that the bus encroached into the
lane of the jeepney, the driver of the latter could have
swerved the jeepney towards the spacious dirt shoulder
on his right without danger to himself or his
passengers.
The above contention of petitioner is manifestly devoid
of merit.
Contrary to the petitioner's contention, the doctrine of
"last clear chance" finds no application in this case. For
the doctrine to be applicable, it is necessary to show
that the person who allegedly had the last opportunity
to avert the accident was aware of the existence of the
peril or should, with exercise of due care, have been
aware of it. One cannot be expected to avoid an
accident or injury if he does not know or could not have
known the existence of the peril. In this case, there is
nothing to show that the jeepney driver David Ico knew
of the impending danger. When he saw at a distance
that the approaching bus was encroaching on his lane,
he did not immediately swerve the jeepney to the dirt
shoulder on his right since he must have assumed that
the bus driver will return the bus to its own lane upon
seeing the jeepney approaching from the opposite
direction. As held by this Court in the case of Vda. De
Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34
SCRA 618, a motorist who is properly proceeding on
his own side of the highway is generally entitled to
assume that an approaching vehicle coming towards
him on the wrong side, will return to his proper lane of
traffic. There was nothing to indicate to David Ico that
the bus could not return to its own lane or was
prevented from returning to the proper lane by
anything beyond the control of its driver. Leo
Marantan, an alternate driver of the Pantranco bus who
was seated beside the driver Ramirez at the time of the
accident, testified that Ramirez had no choice but to
swerve the steering wheel to the left and encroach on
the jeepney's lane because there was a steep precipice
on the right [CA Decision, p. 2; Rollo, p. 45]. However,
this is belied by the evidence on record which clearly
shows that there was enough space to swerve the bus
back to its own lane without any danger [CA Decision,
p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals
found that at the time of the accident the Pantranco bus
was speeding towards Manila [CA Decision, p. 2; Rollo,
p. 45]. By the time David Ico must have realized that
the bus was not returning to its own lane, it was
already too late to swerve the jeepney to his right to
prevent an accident. The speed at which the
approaching bus was running prevented David Ico
from swerving the jeepney to the right shoulder of the
road in time to avoid the collision. Thus, even assuming
that the jeepney driver perceived the danger a few
seconds before the actual collision, he had no
opportunity to avoid it. This Court has held that the last
clear chance doctrine "can never apply where the party
charged is required to act instantaneously, and if the
injury cannot be avoided by the application of all
means at hand after the peril is or should have been
discovered" [Ong v. Metropolitan Water District, supra].
Petitioner likewise insists that David Ico was negligent
in failing to observe Section 43 (c), Article III Chapter IV
of Republic Act No. 4136 which provides that the driver
of a vehicle entering a through highway or a stop
intersection shall yield the right of way to all vehicles
approaching in either direction on such through
highway.
Petitioner's misplaced reliance on the aforesaid law is
readily apparent in this case. The cited law itself
provides that it applies only to vehicles entering a
through highway or a stop intersection. At the time of
the accident, the jeepney had already crossed the
intersection and was on its way to Malalam River.
Petitioner itself cited Fe Ico's testimony that the
accident occurred after the jeepney had traveled a
distance of about two (2) meters from the point of
intersection [Petition p. 10; Rollo, p. 27]. In fact, even
the witness for the petitioner, Leo Marantan, testified
that both vehicles were coming from opposite
directions [CA Decision, p. 7; Rollo, p. 50], clearly
indicating that the jeepney had already crossed the
intersection.
Considering the foregoing, the Court finds that the
negligence of petitioner's driver in encroaching into the
lane of the incoming jeepney and in failing to return the
bus to its own lane immediately upon seeing the
jeepney coming from the opposite direction was the
sole and proximate cause of the accident without which
the collision would not have occurred. There was no
supervening or intervening negligence on the part of
the jeepney driver which would have made the prior
negligence of petitioner's driver a mere remote cause of
the accident.
II
On the issue of its liability as an employer, petitioner
claims that it had observed the diligence of a good
father of a family to prevent damage, conformably to
the last paragraph of Article 2180 of the Civil Code.
Petitioner adduced evidence to show that in hiring its
218
drivers, the latter are required to have professional
driver's license and police clearance. The drivers must
also pass written examinations, interviews and practical
driving tests, and are required to undergo a six-month
training period. Rodrigo San Pedro, petitioner's
Training Coordinator, testified on petitioner's policy of
conducting regular and continuing training programs
and safety seminars for its drivers, conductors,
inspectors and supervisors at a frequency rate of at least
two (2) seminars a month.
On this point, the Court quotes with approval the
following findings of the trial court which was adopted
by the Court of Appeals in its challenged decision:
When an injury is caused by the negligence of an
employee, there instantly arises a presumption that the
employer has been negligent either in the selection of
his employees or in the supervision over their acts.
Although this presumption is only a disputable
presumption which could be overcome by proof of
diligence of a good father of a family, this Court
believes that the evidence submitted by the defendant
to show that it exercised the diligence of a good father
of a family in the case of Ramirez, as a company driver
is far from sufficient. No support evidence has been
adduced. The professional driver's license of Ramirez
has not been produced. There is no proof that he is
between 25 to 38 years old. There is also no proof as to
his educational attainment, his age, his weight and the
fact that he is married or not. Neither are the result of
the written test, psychological and physical test, among
other tests, have been submitted in evidence [sic]. His
NBI or police clearances and clearances from previous
employment were not marked in evidence. No
evidence was presented that Ramirez actually and
really attended the seminars. Vital evidence should
have been the certificate of attendance or certificate of
participation or evidence of such participation like a
logbook signed by the trainees when they attended the
seminars. If such records are not available, the
testimony of the classmates that Ramirez was their
classmate in said seminar (should have been presented)
[CA Decision, pp. 8-9; Rollo, pp. 51-52].
Petitioner contends that the fact that Ambrosio Ramirez
was employed and remained as its driver only means
that he underwent the same rigid selection process and
was subjected to the same strict supervision imposed
by petitioner on all applicants and employees. It is
argued by the petitioner that unless proven otherwise,
it is presumed that petitioner observed its usual
recruitment procedure and company polices on safety
and efficiency [Petition, p. 20; Rollo, p. 37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver
Ambrosio Ramirez gave rise to the presumption of
negligence on the part of petitioner and the burden of
proving that it exercised due diligence not only in the
selection of its employees but also in adequately
219
supervising their work rests with the petitioner [Lilius
v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v.
Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623].
Contrary to petitioner's claim, there is no presumption
that the usual recruitment procedures and safety
standards were observed. The mere issuance of rules
and regulations and the formulation of various
company policies on safety, without showing that they
are being complied with, are not sufficient to exempt
petitioner from liability arising from the negligence of
its employee. It is incumbent upon petitioner to show
that in recruiting and employing the erring driver, the
recruitment procedures and company policies on
efficiency and safety were followed. Petitioner failed to
do this. Hence, the Court finds no cogent reason to
disturb the finding of both the trial court and the Court
of Appeals that the evidence presented by the
petitioner, which consists mainly of the uncorroborated
testimony of its Training Coordinator, is insufficient to
overcome the presumption of negligence against
petitioner.
xxx xxx xxx
WHEREFORE, premises considered, the petition is
DENIED, and the decision of respondent Court of
Appeals is hereby AFFIRMED with the modification
that the amount of compensatory damages for the
death of Harold Jim Baesa and Marcelino Baesa are
increased to Thirty Thousand Pesos (P30,000.00) each.
SO ORDERED.
Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ.,
concur.
MCKEE, ET AL. vs. INTERMEDIATE APPELLATE
COURT, ET AL.
G.R. Nos. 68102 and 68103, 16 July 1992, 211 SCRA 517
DAVIDE, JR., J p:
Petitioners urge this Court to review and reverse the
Resolution of the Court of Appeals in C.A.-G.R. CV
Nos. 69040-41, promulgated on 3 April 1984, which set
aside its previous Decision dated 29 November 1983
reversing the Decision of the trial court which
dismissed petitioners' complaints in Civil Case No. 4477
and Civil Case No. 4478 of the then Court of First
Instance (now Regional Trial Court) of Pampanga
entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla
vs. Jaime Tayag and Rosalinda Manalo", and "George
McKee and Araceli Koh McKee vs. Jaime Tayag and
Rosalinda Manalo", respectively, and granted the
private respondents' counterclaim for moral damages,
attorney's fees and litigation expenses.
xxx xxx xxx
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8
January 1977, in Pulong Pulo Bridge along Mac Arthur
Highway, between Angeles City and San Fernando,
Pampanga, a head-on-collision took place between an
International cargo truck, Loadstar, with Plate No.
RF912-T Philippines `76 owned by private respondents,
and driven by Ruben Galang, and a Ford Escort car
bearing Plate No. S2-850 Pampanga '76 driven by Jose
Koh. The collision resulted in the deaths of Jose Koh,
Kim Koh McKee and Loida Bondoc, and physical
injuries to George Koh McKee, Christopher Koh McKee
and Araceli Koh McKee, all passengers of the Ford
Escort.
Jose Koh was the father of petitioner Araceli Koh
McKee, the mother of minors George, Christopher and
Kim Koh McKee. Loida Bondoc, on the other hand, was
the baby sitter of one and a half year old Kim. At the
time of the collision, Kim was seated on the lap of Loida
Bondoc who was at the front passenger's seat of the car
while Araceli and her two (2) sons were seated at the
car's back seat.
Immediately before the collision, the cargo truck, which
was loaded with two hundred (200) cavans of rice
weighing about 10,000 kilos, was traveling southward
from Angeles City to San Fernando Pampanga, and was
bound for Manila. The Ford Escort, on the other hand,
was on its way to Angeles City from San Fernando.
When the northbound car was about ten (10) meters
away from the southern approach of the bridge, two (2)
boys suddenly darted from the right side of the road
and into the lane of the car. The boys were moving back
and forth, unsure of whether to cross all the way to the
other side or turn back. Jose Koh blew the horn of the
car, swerved to the left and entered the lane of the
truck; he then switched on the headlights of the car,
applied the brakes and thereafter attempted to return to
his lane. Before he could do so, his car collided with the
truck. The collision occurred in the lane of the truck,
which was the opposite lane, on the said bridge.
The incident was immediately reported to the police
station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the
spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be sixty
(60) "footsteps" long and fourteen (14) "footsteps" wide
— seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. 2 Pulong Pulo
Bridge, which spans a dry brook, is made of concrete
with soft shoulders and concrete railings on both sides
about three (3) feet high.
The sketch of the investigating officer discloses that the
right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while
its left front portion was touching the center line of the
bridge, with the smashed front side of the car resting on
its front bumper. The truck was about sixteen (16)
"footsteps" away from the northern end of the bridge
while the car was about thirty-six (36) "footsteps" from
the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps",
while skid marks produced by the left front tire
measured five (5) "footsteps". The two (2) rear tires of
the truck, however, produced no skid marks.
In his statement to the investigating police officers
immediately after the accident, Galang admitted that he
was traveling at thirty (30) miles (48 kilometers) per
hour.
As a consequence of the collision, two (2) cases, Civil
Case No. 4477 and No. 4478, were filed on 31 January
1977 before the then Court of First Instance of
Pampanga and were raffled to Branch III and Branch V
of the said court, respectively. xxx
On 1 March 1977, an Information charging Ruben
Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical
Injuries and Damage to Property" was filed with the
trial court. It was docketed as Criminal Case No. 3751
and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned.
xxx xxx xxx
It is readily apparent from the pleadings that the
principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution
are supported by evidence or are based on mere
speculations, conjectures and presumptions. The
principle is well-established that this Court is not a trier
of facts. Therefore, in an appeal by certiorari under Rule
45 of the Revised Rules of Court, only questions of law
may be raised. The resolution of factual issues is the
function of the lower courts whose findings on these
matters are received with respect and are, as a rule,
binding on this Court.
The foregoing rule, however, is not without exceptions.
Findings of facts of the trial courts and the Court of
Appeals may be set aside when such findings are not
supported by the evidence or when the trial court failed
to consider the material facts which would have led to a
conclusion different from what was stated in its
judgment. The same is true where the appellate court's
conclusions are grounded entirely on conjectures,
speculations and surmises or where the conclusions of
the lower courts are based on a misapprehension of
facts.
It is at once obvious to this Court that the instant case
qualifies as one of the aforementioned exceptions as the
findings and conclusions of the trial court and the
respondent Court in its challenged resolution are not
supported by the evidence, are based on a
misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent
Court's decision of 29 November 1983 makes the correct
findings of fact.
220
In the assailed resolution, the respondent Court held
that the fact that the car improperly invaded the lane of
the truck and that the collision occurred in said lane
gave rise to the presumption that the driver of the car,
Jose Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded
that it was Jose Koh's negligence that was the
immediate and proximate cause of the collision. This is
an unwarranted deduction as the evidence for the
petitioners convincingly shows that the car swerved
into the truck's lane because as it approached the
southern end of the bridge, two (2) boys darted across
the road from the right sidewalk into the lane of the car.
As testified to by petitioner Araceli Koh McKee:
"Q What happened after that, as you
approached the bridge?
A When we were approaching the
bridge, two (2) boys tried to
cross the right lane on the right
side of the highway going to San
Fernando. My father, who is (sic)
the driver of the car tried to
avoid the two (2) boys who were
crossing, he blew his horn and
swerved to the left to avoid
hitting the two (2) boys. We
noticed the truck, he switched on
the headlights to warn the truck
driver, to slow down to give us
the right of way to come back to
our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic)
continued on its way.
Q What happened after that?
A After avoiding the two (2) boys,
the car tried to go back to the
right lane since the truck is (sic)
coming, my father stepped on
the brakes and all what (sic) I
heard is the sound of impact
(sic), sir."
Her credibility and testimony remained intact even
during cross examination. Jose Koh's entry into the lane
of the truck was necessary in order to avoid what was,
in his mind at that time, a greater peril — death or
injury to the two (2) boys. Such act can hardly be
classified as negligent.
Negligence was defined and described by this Court in
Layugan vs. Intermediate Appellate Court, thus:
". . . Negligence is the omission to do
something which a reasonable man,
guided by those considerations which
ordinarily regulate the conduct of
human affairs, would do, or the
doing of something which a prudent
and reasonable man would not do
(Black's Law Dictionary, Fifth
221
Edition, 930), or as Judge Cooley
defines it, '(T)he 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.' (Cooley on Torts, Fourth
Edition, vol. 3, 265).
In Picart vs. Smith (87 Phil 809, 813), decided more than
seventy years ago but still a sound rule, (W)e held:
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. . . ."
In Corliss vs. Manila Railroad Company, We held:
". . . 'Negligence is want of the care
required by the circumstances. It is a
relative or comparative, not an
absolute, term and its application
depends upon the situation of the
parties and the degree of care and
vigilance which the circumstances
reasonably require. Where the danger
is great, a high degree of care is
necessary, and the failure to observe
it is a want of ordinary care under the
circumstances. (citing Ahern v.
Oregon Telephone Co., 35 Pac. 549
(1894)'."
On the basis of the foregoing definition, the test of
negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose
Koh. Any reasonable and ordinary prudent man would
have tried to avoid running over the two boys by
swerving the car away from where they were even if
this would mean entering the opposite lane. Avoiding
such immediate peril would be the natural course to
take particularly where the vehicle in the opposite lane
would be several meters away and could very well
slow down, move to the side of the road and give way
to the oncoming car. Moreover, under what is known as
the emergency rule, "one who suddenly finds himself in
a place of danger, and is required to act without time to
consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence, if he
fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the
emergency in which he finds himself is brought about
by his own negligence."
Considering the sudden intrusion of the two (2) boys
into the lane of the car, We find that Jose Koh adopted
the best means possible in the given situation to avoid
hitting them. Applying the above test, therefore, it is
clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is
negligent, it cannot be said that his negligence was the
proximate cause of the collision. Proximate cause has
been defined as:
". . . 'that cause, which, in natural and
continuous sequence, unbroken by
any efficient intervening cause,
produces the injury, and without
which the result would not have
occurred.' And more
comprehensively, the proximate legal
cause is that acting first 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 final event in the
chain immediately effecting the
injury as a natural and probable
result of the cause which first acted,
under such circumstances that the
person responsible for the first event
should, as an ordinary 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."
Applying the above definition, although it may be said
that the act of Jose Koh, if at all negligent, was the initial
act in the chain of events, it cannot be said that the same
caused the eventual injuries and deaths because of the
occurrence of a sufficient intervening event, the
negligent act of the truck driver, which was the actual
cause of the tragedy. The entry of the car into the lane
of the truck would not have resulted in the collision
had the latter heeded the emergency signals given by
the former to slow down and give the car an
opportunity to go back into its proper lane. Instead of
slowing down and swerving to the far right of the road,
which was the proper precautionary measure under the
given circumstances, the truck driver continued at full
speed towards the car. The truck driver's negligence
becomes more apparent in view of the fact that the road
is 7.50 meters wide while the car measures 1.598 meters
and the truck, 2.286 meters, in width. This would mean
that both car and truck could pass side by side with a
clearance of 3.661 meters to spare. Furthermore, the
bridge has a level sidewalk which could have partially
accommodated the truck. Any reasonable man finding
himself in the given situation would have tried to avoid
the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records.
He himself said that his truck was running at 30 miles
(48 kilometers) per hour along the bridge while the
maximum speed allowed by law on a bridge is only 30
kilometers per hour. Under Article 2185 of the Civil
Code, a person driving a vehicle is presumed negligent
if at the time of the mishap, he was violating any traffic
regulation. We cannot give credence to private
respondents' claim that there was an error in the
translation by the investigating officer of the truck
driver's response in Pampango as to whether the speed
cited was in kilometers per hour or miles per hour. The
law presumes that official duty has been regularly
performed; unless there is proof to the contrary, this
presumption holds. In the instant case, private
respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly
established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly
corroborated by the testimony of Eugenio Tanhueco, an
impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
"Q Mrs. how did you know that the
truck driven by the herein
accused, Ruben Galang did not
reduce its speed before the actual
impact of collision as you
narrated in this Exhibit '1', how
did you know?
A It just kept on coming, sir. If only
he reduced his speed, we could
have got (sic) back to our right
lane on side (sic) of the highway,
sir.' (tsn, pp. 33-34, July 22, 1977)
or (Exhibit `O' in these Civil
Cases) (pp. 30-31, Appellants'
Brief)"
while Eugenio Tanhueco testified thus:
"Q When you saw the truck, how
was it moving?
A It was moving 50 to 60
kilometers per hour, sir.
Q Immediately after you saw this
truck, do you know what
happened?
A I saw the truck and a car collided
(sic), sir, and I went to the place
to help the victims.' (tsn. 28,
April 19, 1979)
xxx xxx xxx
222
 Q From the time you saw the truck
to the time of the impact, will
you tell us if the said truck ever
stopped?
A I saw it stopped (sic) when it has
(sic) already collided with the car
and it was already motionless.'
(tsn. 31, April 19, 1979;
Underlining supplied). (p. 27,
Appellants' Brief)."
Clearly, therefore, it was the truck driver's subsequent
negligence in failing to take the proper measures and
degree of care necessary to avoid the collision which
was the proximate cause of the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of
last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states that
the contributory negligence of the party injured will not
defeat the claim for damages if it is shown that the
defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the
person who had the last clear chance to avoid the
mishap is considered in law solely responsible for the
consequences thereof.
In Bustamante vs. Court of Appeals, We held:
"The respondent court adopted the
doctrine of `last clear chance.' The
doctrine, stated broadly, is that the
negligence of the plaintiff does not
preclude a recovery for the
negligence of the defendant where it
appears that the defendant, by
exercising reasonable care and
prudence, might have avoided
injurious consequences to the
plaintiff notwithstanding the
plaintiff's negligence. In other words,
the doctrine of last clear chance
means that even though a person's
own acts may have placed him in a
position of peril, and an injury
results, the injured person is entitled
to recovery (sic). As the doctrine is
usually stated, a person who has the
last clear chance or opportunity of
avoiding an accident,
notwithstanding the negligent acts of
his opponent or that of a third person
imputed to the opponent is
considered in law solely responsible
for the consequences of the accident.
(Sangco, Torts and Damages, 4th Ed.,
1986, p. 165).
The practical import of the doctrine is that a negligent
defendant is held liable to a negligent plaintiff, or even
to a plaintiff who has been grossly negligent in placing
223
himself in peril, if he, aware of the plaintiff's peril, or
according to some authorities, should have been aware
of it in the reasonable exercise of due care, had in fact
an opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799)."
In Pantranco North Express, Inc., vs. Baesa, We ruled:
"The doctrine of last clear chance was
defined by this Court in the case of
Ong v. Metropolitan Water District, 104
Phil. 397 (1958), in this wise:
The doctrine of the last clear
chance simply, means that the
negligence of a claimant does
not preclude a recovery for the
negligence of defendant where
it appears that the latter, by
exercising reasonable care and
prudence, might have avoided
injurious consequences to
claimant notwithstanding his
negligence.
The doctrine applies only in a
situation where the plaintiff
was guilty of prior or
antecedent negligence but the
defendant, who had the last
fair chance to avoid the
impending harm and failed to
do so, is made liable for all the
consequences of the accident
notwithstanding the prior
negligence of the plaintiff
[Picart v. Smith, 37 Phil. 809
(1918); Glan People's Lumber and
Hardware, et al. v. Intermediate
Appellate Court, Cecilia Alferez
Vda. de Calibo, et al., G.R. No.
70493, May 18, 1989]. The
subsequent negligence of the
defendant in failing to exercise
ordinary care to avoid injury to
plaintiff becomes the
immediate or proximate cause
of the accident which
intervenes between the
accident and the more remote
negligence of the plaintiff, thus
making the defendant liable to
the plaintiff [Picart v. Smith,
supra].
Generally, the last clear chance
doctrine is invoked for the
purpose of making a defendant
liable to a plaintiff who was
guilty of prior or antecedent
negligence, although it may
 also be raised as a defense to
defeat claim (sic) for damages."
Applying the foregoing doctrine, it is not difficult to
rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the
collision which was, in law, the proximate cause of the
collision. As employers of the truck driver, the private
respondents are, under Article 2180 of the Civil Code,
directly and primarily liable for the resulting damages.
The presumption that they are negligent flows from the
negligence of their employee. That presumption,
however, is only juris tantum, not juris et de jure. Their
only possible defense is that they exercised all the
diligence of a good father of a family to prevent the
damage. Article 2180 reads as follows:
"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.
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."
The diligence of a good father referred to means the
diligence in the selection and supervision of employees.
The answers of the private respondents in Civil Cases
Nos. 4477 and 4478 did not interpose this defense.
Neither did they attempt to prove it.
The respondent Court was then correct in its Decision
of 29 November 1983 in reversing the decision of the
trial court which dismissed Civil Cases Nos. 4477 and
4478. Its assailed Resolution of 3 April 1984 finds no
sufficient legal and factual moorings.
In the light of recent decisions of this Court, the
indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The
assailed Resolution of the respondent Court of 3 April
1984 is SET ASIDE while its Decision of 29 November
1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED,
subject to the modification that the indemnity for death
is increased from P12,000.00 to P50,000.00 each for the
death of Jose Koh and Kim Koh McKee.
Costs against private respondents.
SO ORDERED.
Gutierrez, Jr., Feliciano and Romero, JJ ., concur.
Bidin, J., took no part.
LBC AIR CARGO, INC., ET AL. vs.
COURT OF APPEALS
G.R. No. 101683, 23 February 1995.
VITUG, J p:
In this petition for review, the application of the
doctrines of "proximate cause" and "last clear chance" is,
once again, being put to test. The petition questions the
decision of the Court of Appeals dated 18 July 1991,
which has reversed that of the trial court.
The case arose from a vehicular collision which
occurred at about 11:30 in the morning of 15 November
1987. Rogelio Monterola, a licensed driver, was
traveling on board his Suzuki motorcycle towards
Mangagoy on the right lane along a dusty national road
in Bislig, Surigao del Sur. At about the same time, a
cargo van of the LBC Air Cargo Incorporated, driven by
defendant Jaime Tano, Jr., was coming from the
opposite direction on its way to the Bislig Airport. On
board were passengers Fernando Yu, Manager of LBC
Air Cargo, and his son who was seated beside Tano.
When Tano was approaching the vicinity of the airport
road entrance on his left, he saw two vehicles racing
against each other from the opposite direction. Tano
stopped his vehicle and waited for the two racing
vehicles to pass by. The stirred cloud of dust made
visibility extremely bad. Instead of waiting for the dust
to settle, Tano started to make a sharp left turn towards
the airport road. When he was about to reach the center
of the right lane, the motorcycle driven by Monterola
suddenly emerged from the dust and smashed head-on
against the right side of the LBC van. Monterola died
from the severe injuries he sustained.
A criminal case for "homicide thru reckless
imprudence" was filed against Tano. A civil suit was
likewise instituted by the heirs of deceased Monterola
against Tano, along with Fernando Yu and LBC Air
Cargo Incorporated, for the recovery of damages. The
two cases were tried jointly by the Regional Trial Court,
Branch 29, of Surigao del Sur.
On 29 July 1990, the trial court dismissed both cases on
the ground that the proximate cause of the "accident"
was the negligence of deceased Rogelio Monterola.
Private respondent appealed the dismissal of the civil
case to the Court of Appeals. On 18 July 1991, the
appellate court reversed the court a quo. xxx
224

xxx xxx xxx
In the instant petition for review, petitioners contend
that —
"1. The Court of Appeals erred in
finding that Jaime Tano, Jr. was
negligent in the driving of his
vehicle and in failing to give a
signal to approaching vehicles of
his intention to make a left turn.
"2. The Court of Appeals erred in
not finding that the proximate
cause of the accident was the
victim's negligence in the driving
of his motorcycle in a very fast
speed and thus hitting the
petitioner's cargo van."
The issues raised are thus essentially factual. The
intrinsic merit of, as well as cogency in, the detailed
analyses made by the Court of Appeals in arriving at its
findings is at once apparent. Said the appellate court:
"That visibility was poor when Jaime
Tano made a left turn was admitted
by the latter.
"Q When these two vehicles passed
by your parked vehicle, as you
said, there were clouds of dust,
did I get you right?
"A Yes sir, the road was dusty.
"Q So much so that you could no
longer see the vehicles from the
opposite direction following
these vehicles? cdasia
"A It is not clear, sir, so I even
turned on my left signal and the
headlight.
"Q What do you mean by it was not
clear, you could not see the
incoming vehicles?
"A I could not see because of the
cloud of dust.
"Q And it was at this juncture, when
you were to follow your theory,
when you started your LBC van
again and swerved to the left
leading to the Bislig airport?
"A I did not enter immediately the
airport, I waited the dust to clear
a little before I drove.
"xxx xxx xxx
"Q In other words when you said
that it was slightly clear, you
would like to tell the Honorable
Court that you could only clearly
see big vehicles . . . but not small
vehicles like a motorcycle?
225
"A I could see clearly big vehicles
but not small vehicles like a
motorcycle.
"Q Like the motorcycle of Rogelio
Monterola?
"A Yes, sir. I could not see clearly.
(Tano, tsn, April 18, 1989, pp. 26-
30) (p. 15, Appellant's brief).
"Tano should not have made a left
turn under the conditions admitted
by him. Under the Land
Transportation and Traffic Code, the
driver of any vehicle upon a
highway, before starting, stopping or
turning from a direct line, is called
upon to first see that such movement
can be made in safety, and whenever
the operation of any other vehicle
approaching may be affected by such
movement, shall give a signal plainly
visible to the driver of such other
vehicles of the intention to make such
movement (Sec. 44, R.A. 4136, as
amended). This means that before a
driver turns from a direct line, in this
case to the left, the driver must first
see to it that there are no approaching
vehicles and, if there are, to make the
turn only if it can give a signal that is
plainly visible to the driver of such
other vehicle. Tano did neither in this
case, for he recklessly made a left
turn even as visibility was still very
poor, and thus failed to see the
approaching motorcycle and warn
the latter of his intention to make a
left turn. This is plain and simple
negligence.
"In thus making the left turn, he
placed his vehicle directly at the path
of the motorcycle which, unaware of
Tano's intention to make a left turn,
smashed at Tano's vehicle. It was
Tano's negligence that created the
risk or the condition of danger that
set into operation the event that led to
the smashedup and untimely death
of Rogelio Monterola.
"Rogelio Monterola's motorcycle
would not have hit the cargo van had
Tano, in operating it, not recklessly
turned left when visibility was still
poor, and instead observed the
directive of the Land Transportation
Code that before doing so, he should
first see to it that such movement can
be made in safety, and that whenever
any other vehicle approaching may
be affected by such movement,
should give a signal plainly visible to
the driver of such other vehicle of the
intention to make such movement.
"That Rogelio Monterola was running
fast despite poor visibility as
evidenced by the magnitude of the
damage to the vehicles is no defense.
His negligence would at most be
contributory (Article 2179, N.C.C.).
Having negligently created the
condition of danger, defendants may
not avoid liability by pointing to the
negligence of the former. cdasia
xxx xxx xxx
"Tano's proven negligence created a
presumption of negligence on the
part of his employer, the LBC Air
Cargo Corporation, in supervising its
employees properly and adequately
(Phoenix Construction, Inc. vs.
Intermediate Appellate Court, supra),
which may only be destroyed by
proof of due diligence in the selection
and supervision of his employees to
prevent the damage (Article 2180,
N.C.C.). No such defense was
interposed by defendants in their
answer.
"We, however, fail to see Fernando
Yu's liability as Manager of LBC-
Mangagoy Branch Office, there being
no employer-employee relationship
between him and Jaime Tano who is
a driver of the LBC Air Cargo Inc. It
was held in Philippine Rabbit Bus
Lines Inc., et al. vs. Phil. American
Forwarders, Inc., 63 SCRA 231, that
the term 'Manager' in Article 2180 is
used in the sense of 'employer.'
Hence, no tortuous or quasi-delictual
liability can be fastened on Fernando
Yu as branch manager of LBC Air
Cargo Inc.
"Now for the amount of damages.
Aside from the indemnity for death
which People v. Sazon, 189 SCRA
700), the evidence disclose that as a
result of the accident, Rogelio
Monterola's motorcycle was
damaged, the repair cost of which
amounted to P7,361.00 (Exh. E-1), for
the hospitalization, wake and burial
expenses, plaintiff spent P15,000.00.
There is likewise no question that by
reason of Rogelio Monterola's
untimely death, his only child 14
years old Sherwin Monterola,
suffered mental anguish, fright,
serious anxiety, wounded feelings
and moral shock that entitles him to
moral damages which we hereby fix
at P20,000.00. Because of defendants'
refusal to indemnify the plaintiff for
his father's death, the latter was
compelled to litigate and engage the
services of counsel. He is therefore
entitled to an additional amount of
P10,000.00 for attorney's fees and
expenses of litigation. cdasia
"Considering, however, the
contributory negligence of Rogelio
Monterola in driving at a fast clip
despite the fact that the road was
dusty, we reduce the aggregate
amount of damages to which the
plaintiff is entitled by twenty per cent
(Phoenix Construction Inc. v.
Intermediate Appellate Court,
supra.)."
For every indication, the proximate cause of the
accident was the negligence of Tano who, despite
extremely poor visibility, hastily executed a left turn
(towards the Bislig airport road entrance) without first
waiting for the dust to settle. It was this negligent act of
Tano, which had placed his vehicle (LBC van) directly
on the path of the motorcycle coming from the opposite
direction,that almost instantaneously caused the
collision to occur. Simple prudence required him not to
attempt to cross the other lane until after it would have
been safe from and clear of any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear
chance" (also referred to, at times, as "supervening
negligence" or as "discovered peril"). The doctrine, in
essence, is to the effect that where both parties are
negligent, but the negligent act of one is appreciably
later in time than that of the other, or when it is
impossible to determine whose fault or negligence
should be attributed to the incident, the one who had
the last clear opportunity to avoid the impeding harm
and failed to do so is chargeable with the consequences
thereof (see Picart vs. Smith, 37 Phil. 809). Stated
differently, the rule would also mean that an antecedent
negligence of a person does not preclude the recovery
of damages for the supervening negligence of, or bar a
defense against liability sought by, another if the latter,
who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence
(Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384;
Glan People's Lumber and Hardware vs. Intermediate
Appellate Court, 173 SCRA 464).
In the case at bench, the victim was traveling along the
lane where he was rightly supposed to be. The incident
occurred in an instant. No appreciable time had
elapsed, from the moment Tano swerved to his left to
226
the actual impact, that could have afforded the victim a
last clear opportunity to avoid the collision.
It is true, however, that the deceased was not all that
free from negligence in evidently speeding too closely
behind the vehicle he was following. We, therefore,
agree with the appellate court that there indeed was
contributory negligence on the victim's part that could
warrant a mitigation of petitioners' liability for
damages.
WHEREFORE, the appealed decision is AFFIRMED.
Costs against petitioners.
SO ORDERED.
Feliciano, Romero, Melo and Francisco, JJ ., concur.
RAYNERA, ET AL. vs. HICETA, ET AL.
G.R. No. 120027, 21 April 1999, 306 SCRA 102
PARDO, J p:
The case is a petition for review on certiorari of the
decision of the Court of Appeals, reversing that of the
Regional Trial Court, Branch 45, Manila.
The rule is well-settled that factual findings of the
Court of Appeals are generally considered final and
may not be reviewed on appeal. However, this
principle admits of certain exceptions, among which is
when the findings of the appellate court are contrary to
those of the trial court, a re-examination of the facts and
evidence may be undertaken. This case falls under the
cited exception.
The antecedent facts are as follows:
Petitioner Edna A. Raynera was the widow of Reynaldo
Raynera and the mother and legal guardian of the
minors Rianna and Reianne, both surnamed Raynera.
Respondents Freddie Hiceta and Jimmy Orpilla were
the owner and driver, respectively, of an Isuzu truck-
trailer, with plate No. NXC 848, involved in the
accident.
On March 23, 1989, at about 2:00 in the morning,
Reynaldo Raynera was on his way home. He was riding
a motorcycle traveling on the southbound lane of East
Service Road, Cupang, Muntinlupa. The Isuzu truck
was travelling ahead of him at 20 to 30 kilometers per
hour. The truck was loaded with two (2) metal sheets
extended on both sides, two (2) feet on the left and
three (3) feet on the right. There were two (2) pairs of
red lights, about 35 watts each, on both sides of the
metal plates. The asphalt road was not well lighted.
At some point on the road, Reynaldo Raynera crashed
his motorcycle into the left rear portion of the truck
trailer, which was without tail lights. Due to the
collision, Reynaldo sustained head injuries and truck
helper Geraldino D. Lucelo rushed him to the
227
Parañaque Medical Center. Upon arrival at the hospital,
the attending physician, Dr. Marivic Aguirre,
pronounced Reynaldo Raynera dead on arrival.
At the time of his death, Reynaldo was manager of the
Engineering Department, Kawasaki Motors (Phils.)
Corporation. He was 32 years old, had a life expectancy
of sixty five (65) years, and an annual net earnings of
not less than seventy three thousand five hundred
(P73,500.00) pesos, with a potential increase in annual
net earnings of not less than ten percent (10%) of his
salary.
On May 12, 1989, the heirs of the deceased demanded
from respondents payment of damages arising from the
death of Reynaldo Raynera as a result of the vehicular
accident. The respondents refused to pay the claims.
On September 13, 1989, petitioners filed with the
Regional Trial Court, Manila a complaint for damages
against respondents owner and driver of the Isuzu
truck.
In their complaint against respondents, petitioners
sought recovery of damages for the death of Reynaldo
Raynera caused by the negligent operation of the truck-
trailer at nighttime on the highway, without tail lights.
In their answer filed on April 4, 1990, respondents
alleged that the truck was travelling slowly on the
service road, not parked improperly at a dark portion
of the road, with no tail lights, license plate and early
warning device.
At the trial, petitioners presented Virgilio Santos. He
testified that at about 1:00 and 2:00 in the morning of
March 23, 1989, he and his wife went to Alabang
market, on board a tricycle. They passed by the service
road going south, and saw a parked truck trailer, with
its hood open and without tail lights. They would have
bumped the truck but the tricycle driver was quick in
avoiding a collision. The place was dark, and the truck
had no early warning device to alert passing motorists.
On the other hand, respondents presented truck helper
Geraldino Lucelo. He testified that at the time the
incident happened, the truck was slowly traveling at
approximately 20 to 30 kilometers per hour. Another
employee of respondents, auto-mechanic Rogoberto
Reyes, testified that at about 3:00 in the afternoon of
March 22, 1989, with the help of Lucelo, he installed
two (2) pairs of red lights, about 30 to 40 watts each, on
both sides of the steel plates. On his part, traffic
investigation officer Cpl. Virgilio del Monte admitted
that these lights were visible at a distance of 100 meters.
On December 19, 1991, the trial court rendered decision
in favor of petitioners. It found respondents Freddie
Hiceta and Jimmy Orpilla negligent in view of these
circumstances: (1) the truck trailer had no license plate
and tail lights; (2) there were only two pairs of red
lights, 50 watts each, on both sides of the steel plates;
and (3) the truck trailer was improperly parked in a
dark area.
The trial court held that respondents' negligence was
the immediate and proximate cause of Reynaldo
Raynera's death, for which they are jointly and
severally liable to pay damages to petitioners. The trial
court also held that the victim was himself negligent,
although this was insufficient to overcome respondents'
negligence. The trial court applied the doctrine of
contributory negligence and reduced the responsibility
of respondents by 20% on account of the victim's own
negligence.
xxx xxx xxx
On January 10, 1992, respondents Hiceta and Orpilla
appealed to the Court of Appeals.
After due proceedings, on April 28, 1995, the Court of
Appeals rendered decision setting aside the appealed
decision. The appellate court held that Reynaldo
Raynera's bumping into the left rear portion of the
truck was the proximate cause of his death, and
consequently, absolved respondents from liability.
Hence, this petition for review on certiorari.
xxx xxx xxx
Petitioners maintain that the proximate cause of
Reynaldo Raynera's death was respondents' negligence
in operating the truck trailer on the highway without
tail lights and license plate.
The Court finds no reason to disturb the factual
findings of the Court of Appeals.
"Negligence is the omission to do
something which a reasonable man,
guided by those considerations which
ordinarily regulate the conduct of
human affairs, would do, or the
doing of something, which a prudent
and reasonable man would not do."
Proximate cause is "that cause, which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without
which the result would not have occurred."
During the trial, it was established that the truck had no
tail lights. The photographs taken of the scene of the
accident showed that there were no tail lights or license
plates installed on the Isuzu truck. Instead, what were
installed were two (2) pairs of lights on top of the steel
plates, and one (1) pair of lights in front of the truck.
With regard to the rear of the truck, the photos taken
and the sketch in the spot report proved that there were
no tail lights.
Despite the absence of tail lights and license plate,
respondents' truck was visible in the highway. It was
traveling at a moderate speed, approximately 20 to 30
kilometers per hour. It used the service road, instead of
the highway, because the cargo they were hauling
posed a danger to passing motorists. In compliance
with the Land Transportation Traffic Code (Republic
Act No. 4136)" respondents installed 2 pairs of lights on
top of the steel plates, as the vehicle's cargo load
extended beyond the bed or body thereof.
We find that the direct cause of the accident was the
negligence of the victim. Traveling behind the truck, he
had the responsibility of avoiding bumping the vehicle
in front of him. He was in control of the situation. His
motorcycle was equipped with headlights to enable
him to see what was in front of him. He was traversing
the service road where the prescribed speed limit was
less than that in the highway.
Traffic investigator Cpl. Virgilio del Monte testified that
two pairs of 50-watts bulbs were on top of the steel
plates, which were visible from a distance of 100
meters. Virgilio Santos admitted that from the tricycle
where he was on board, he saw the truck and its cargo
of iron plates from a distance of ten (10) meters. In light
of these circumstances, an accident could have been
easily avoided, unless the victim had been driving too
fast and did not exercise due care and prudence
demanded of him under the circumstances.
Virgilio Santos' testimony strengthened respondents'
defense that it was the victim who was reckless and
negligent in driving his motorcycle at high speed. The
tricycle where Santos was on board was not much
different from the victim's motorcycle that figured in
the accident. Although Santos claimed the tricycle
almost bumped into the improperly parked truck, the
tricycle driver was able to avoid hitting the truck.
It has been said that drivers of vehicles "who bump the
rear of another vehicle" are presumed to be "the cause
of the accident, unless contradicted by other evidence".
The rationale behind the presumption is that the driver
of the rear vehicle has full control of the situation as he
is in a position to observe the vehicle in front of him.
We agree with the Court of Appeals that the
responsibility to avoid the collision with the front
vehicle lies with the driver of the rear vehicle.
Consequently, no other person was to blame but the
victim himself since he was the one who bumped his
motorcycle into the rear of the Isuzu truck. He had the
last clear chance of avoiding the accident.
WHEREFORE, we DENY the petition for review on
certiorari and AFFIRM the decision of the Court of
Appeals in CA-G.R. CV No. 35895, dismissing the
amended complaint in Civil Case No. 89-50355,
Regional Trial Court, Branch 45, Manila.
No costs.
228
SO ORDERED.
Davide, Jr., C.J., Melo and Kapunan, JJ., concur.
Ynares-Santiago, J., took no part.
CANLAS, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 112160, 28 February 2000.
PURISIMA, J p:
At bar is a Petition for Review on Certiorari under Rule
45 of the Rules of Court, seeking to review and set aside
the Decision of the Court of Appeals in CA-G.R. CV No.
25242, which reversed the Decision of Branch 59 of the
Regional Trial Court of Makati City in Civil Case No.
M-028; the dispositive portion of which reads:
xxx xxx xxx
The facts that matter:
Sometime in August, 1982, the petitioner, Osmundo S.
Canlas, and private respondent, Vicente Mañosca,
decided to venture in business and to raise the capital
needed therefor. The former then executed a Special
Power of Attorney authorizing the latter to mortgage
two parcels of land situated in San Dionisio, (BF
Homes) Parañaque, Metro Manila, each lot with semi-
concrete residential house existing thereon, and
respectively covered by Transfer Certificate of Title No.
54366 in his (Osmundo's) name and Transfer Certificate
of Title No. S-78498 in the name of his wife Angelina
Canlas.
Subsequently, Osmundo Canlas agreed to sell the said
parcels of land to Vicente Mañosca, for and in
consideration of P850,000.00, P500,000.00 of which
payable within one week, and the balance of
P350,000.00 to serve as his (Osmundo's) investment in
the business. Thus, Osmundo Canlas delivered to
Vicente Mañosca the transfer certificates of title of the
parcels of land involved. Vicente Mañosca, as his part
of the transaction, issued two postdated checks in favor
of Osmundo Canlas in the amounts of P40,000.00 and
P460,000.00, respectively, but it turned out that the
check covering the bigger amount was not sufficiently
funded.
On September 3, 1982, Vicente Mañosca was able to
mortgage the same parcels of land for P100,000.00 to a
certain Attorney Manuel Magno, with the help of
impostors who misrepresented themselves as the
spouses, Osmundo Canlas and Angelina Canlas.
On September 29, 1982, private respondent Vicente
Mañosca was granted a loan by the respondent Asian
Savings Bank (ASB) in the amount of P500,000.00, with
the use of subject parcels of land as security, and with
the involvement of the same impostors who again
introduced themselves as the Canlas spouses. When the
229
loan it extended was not paid, respondent bank
extrajudicially foreclosed the mortgage.
On January 15, 1983, Osmundo Canlas wrote a letter
informing the respondent bank that the execution of
subject mortgage over the two parcels of land in
question was without their (Canlas spouses) authority,
and request that steps be taken to annul and/or revoke
the questioned mortgage. On January 18, 1983,
petitioner Osmundo Canlas also wrote the office of
Sheriff Maximo C. Contreras, asking that the auction
sale scheduled on February 3, 1983 be canceled or held
in abeyance. But respondents Maximo C. Contreras and
Asian Savings Bank refused to heed petitioner Canlas'
stance and proceeded with the scheduled auction sale.
Consequently, on February 3, 1983 the herein
petitioners instituted the present case for annulment of
deed of real estate mortgage with prayer for the
issuance of a writ of preliminary injunction; and on
May 23, 1983, the trial court issued an Order restraining
the respondent sheriff from issuing the corresponding
Certificate of Sheriff's Sale.
For failure to file his answer, despite several motions
for extension of time for the filing thereof, Vicente
Mañosca was declared in default.
On June 1, 1989, the lower court a quo came out with a
decision annulling subject deed of mortgage and
disposing, thus:
xxx xxx xxx
From such Decision below, Asian Savings Bank
appealed to the Court of Appeals, which handed down
the assailed judgment of reversal, dated September 30,
1983, in CA-G.R. CV No. 25242. Dissatisfied therewith,
the petitioners found their way to this Court via the
present Petition; theorizing that: xxx
xxx xxx xxx
The Petition is impressed with merit.
Article 1173 of the Civil Code provides:
"ARTICLE 1173. The fault or
negligence of the obligor consist in
the omission of that diligence which
is required by the nature of the
obligation and corresponds with the
circumstances of the persons, of the
time and of the place. When
negligence shows bad faith, the
provisions of Articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state
the diligence which is to be observed
in the performance, that which is
 expected of a good father of a family
shall be required. (1104)"
The degree of diligence required of banks is more than
that of a good father of a family; in keeping with their
responsibility to exercise the necessary care and
prudence in dealing even on a registered or titled
property. The business of a bank is affected with public
interest, holding in trust the money of the depositors,
which bank deposits the bank should guard against loss
due to negligence or bad faith, by reason of which the
bank would be denied the protective mantle of the land
registration law, accorded only to purchasers or
mortgagees for value and in good faith.
In the case under consideration, from the evidence on
hand it can be gleaned unerringly that respondent bank
did not observe the requisite diligence in ascertaining
or verifying the real identity of the couple who
introduced themselves as the spouses Osmundo Canlas
and Angelina Canlas. It is worthy to note that not even
a single identification card was exhibited by the said
impostors to show their true identity; and yet, the bank
acted on their representations simply on the basis of the
residence certificates bearing signatures which tended
to match the signatures affixed on a previous deed of
mortgage to a certain Atty. Magno, covering the same
parcels of land in question. Felizado Mangubat,
Assistant Vice President of Asian Savings Bank, thus
testified inter alia:
"xxx xxx xxx
Q: According to you, the basis for
your having recommended for
the approval of MANASCO's
(sic) loan particularly that one
involving the property of
plaintiff in this case, the spouses
OSMUNDO CANLAS and
ANGELINA CANLAS, the basis
for such approval was that
according to you all the
signatures and other things
taken into account matches with
that of the document previously
executed by the spouses
CANLAS?
A: That is the only basis for
accepting the signature on the
mortgage, the basis for the
recommendation of the approval
of the loan are the financial
statement of MAÑOSCA?
A: Yes, among others the signature
and TAX Account Number,
Residence Certificate appearing
on the previous loan executed by
the spouses CANLAS, I am
referring to EXHIBIT 5, mortgage
to ATTY MAGNO, those were
made the basis.
A: That is just the basis of accepting
the signature, because at that
time the loan have been
approved already on the basis of
the financial statement of the
client the Bank Statement. Wneh
(sic) it was approved we have to
base it on the Financial
Statement of the client, the
signatures were accepted only
for the purpose of signing the
mortgage not for the approval,
we don't (sic) approve loans on
the signature
ATTY. CLAROS:
Would you agree that as part of
ascertaining the identity of the
parties particularly the
mortgage, you don't consider
also the signature, the Residence
Certificate, the particular address
of the parties involved
A: I think the question defers (sic)
from what you asked a while
ago.
Q: Among others?
A: We have to accept the signature
on the basis of the other
signatures given to us it being a
public instrument.
ATTY CARLOS:
You mean to say the criteria of
ascertaining the identity of the
mortgagor does not depend so
much on the signature on the
residence certificate they have
presented. cdtai
A: We have to accept that.
xxx xxx xxx
A: We accepted the signature on the
basis of the mortgage in favor of
ATTY. MAGNO duly notarized
which I have been reiterrting
(sic) entitled to full faith
considering that it is a public
instrument.
ATTY CARLOS:
What other requirement did you
take into account in ascertaining
the identification of the parties
particularly the mortgage in this
case?
A: Residence Certificate.
Q: Is that all, is that the only
requirement?
A: We requested for others but they
could not produce, and because
they presented to us the
Residence Certificate which
matches on the signature on the
230
 Residence Certificate in favor of
Atty. Magno."
Evidently, the efforts exerted by the bank to verify the
identity of the couple posing as Osmundo Canlas and
Angelina Canlas fell short of the responsibility of the
bank to observe more than the diligence of a good
father of a family. The negligence of respondent bank
was magnified by the fact that the previous deed of
mortgage (which was used as the basis for checking the
genuineness of the signatures of the supposed Canlas
spouses) did not bear the tax account number of the
spouses, as well as the Community Tax Certificate of
Angelina Canlas But such fact notwithstanding, the
bank did not require the impostors to submit additional
proof of their true identity.
Under the doctrine of last clear chance, which is
applicable here, the respondent bank must suffer the
resulting loss. In essence, the doctrine of last clear
chance is to the effect that where both parties are
negligent but the negligent act of one is appreciably
later in point of time than that of the other, or where it
is impossible to determine whose fault or negligence
brought about the occurrence of the incident, the one
who had the last clear opportunity to avoid the
impending harm but failed to do so, is chargeable with
the consequences arising therefrom. Stated differently,
the rule is that the antecedent negligence of a person
does not preclude recovery of damages caused by the
supervening negligence of the latter, who had the last
fair chance to prevent the impending harm by the
exercise of due diligence.
Assuming that Osmundo Canlas was negligent in
giving Vicente Mañosca the opportunity to perpetrate
the fraud, by entrusting to latter the owner's copy of the
transfer certificates of title of subject parcels of land, it
cannot be denied that the bank had the last clear chance
to prevent the fraud, by the simple expedient of
faithfully complying with the requirements for banks to
ascertain the identity of the persons transacting with
them.
For not observing the degree of diligence required of
banking institutions, whose business is impressed with
public interest, respondent Asian Savings Bank has to
bear the loss sued upon.
xxx xxx xxx
WHEREFORE, the Petition is GRANTED and the
Decision of the Court of Appeals, dated September 30,
1993, in CA-G.R. CV No. 25242 SET ASIDE. The
Decision of Branch 59 of the Regional Trial Court of
Makati City in Civil Case No. M-028 is hereby
REINSTATED. No pronouncement as to costs.
SO ORDERED.
Melo, Vitug, and Gonzaga-Reyes, JJ., concur.
231
Panganiban, J., concurs in the result.
LAPANDAY AGRICULTURAL and DEVELOPMENT
CORPORATION (LADECO), ET AL. vs. ANGALA
G.R. No. 153076, 21 June 2007
CARPIO, J p:
The Case
Before the Court is a petition for review assailing the 25
July 2001 Decision and 11 March 2002 Resolution of the
Court of Appeals in CA-G.R. CV No. 51134.
The Antecedent Facts
On 4 May 1993, at about 2:45 p.m., a Datsun crewcab
with plate no. PEC-903 driven by Apolonio Deocampo
(Deocampo) bumped into a 1958 Chevy pick-up with
plate no. MAM-475 owned by Michael Raymond
Angala (respondent) and driven by Bernulfo Borres
(Borres). Lapanday Agricultural and Development
Corporation (LADECO) owned the crewcab which was
assigned to its manager Manuel Mendez (Mendez).
Deocampo was the driver and bodyguard of Mendez.
Both vehicles were running along Rafael Castillo St.,
Agdao, Davao City heading north towards Lanang,
Davao City. The left door, front left fender, and part of
the front bumper of the pick-up were damaged.
Respondent filed an action for Quasi-Delict, Damages,
and Attorney's Fees against LADECO, its
administrative officer Henry Berenguel (Berenguel) and
Deocampo. Respondent alleged that his pick-up was
slowing down to about five to ten kilometers per hour
(kph) and was making a left turn preparatory to
turning south when it was bumped from behind by the
crewcab which was running at around 60 to 70 kph.
The crewcab stopped 21 meters from the point of
impact. Respondent alleged that he heard a screeching
sound before the impact. Respondent was seated beside
the driver and was looking at the speedometer when
the accident took place. Respondent testified that Borres
made a signal because he noticed a blinking light while
looking at the speedometer.
Respondent sent a demand letter to LADECO for the
payment of the damages he incurred because of the
accident but he did not receive any reply. Thus,
respondent filed the case against LADECO, Berenguel,
and Deocampo.
Deocampo alleged that the pick-up and the crewcab he
was driving were both running at about 40 kph. The
pick-up was running along the outer lane. The pick-up
was about 10 meters away when it made a U-turn
towards the left. Deocampo testified that he did not see
any signal from the pick-up. Deocampo alleged that he
tried to avoid the pick-up but he was unable to avoid
the collision. Deocampo stated that he did not apply the
brakes because he knew the collision was unavoidable.
Deocampo admitted that he stepped on the brakes only
after the collision.
 The Ruling of the Trial Court
In its 3 March 1995 Decision, the Regional Trial Court of
Davao City, Branch 15 (trial court) ruled:
WHEREFORE, judgment is hereby rendered ordering
the defendants LADECO and Apolonio Deocampo to
solidarily pay the plaintiffs the following sums:
xxx xxx xxx
The trial court found that the crewcab was running
very fast while following the pick-up and that the
crewcab's speed was the proximate cause of the
accident. The trial court observed that the crewcab
stopped 21 meters away from the point of impact
despite Deocampo's claim that he stepped on the brakes
moments after the collision. The trial court ruled that
Deocampo had the last opportunity to avoid the
accident.
The trial court found that Berenguel was not liable
because he was not the owner of the crewcab.
LADECO and Deocampo (petitioners) filed a motion
for reconsideration. The trial court denied petitioners'
motion in its 13 June 1995 Order.
Petitioners filed an appeal before the Court of Appeals.
The Ruling of the Court of Appeals
The Court of Appeals affirmed in toto the trial court's
decision.
The Court of Appeals sustained the finding of the trial
court that Deocampo was negligent. The Court of
Appeals applied the doctrine of last clear chance and
ruled that Deocampo had the responsibility of avoiding
the pick-up.
The Court of Appeals also sustained the solidary
liability of LADECO and Deocampo. The Court of
Appeals ruled that under Article 2180 of the Civil Code,
the negligence of the driver is presumed to be the
negligence of the owner of the vehicle.
xxx xxx xxx
Hence, the petition before this Court.
The Issues
The issues before the Court are the following:
1. Whether the provisions of Section 45(b) of Republic
Act No. 4136 12 (RA 4136) and Article 2185 of the
Civil Code apply to this case; and
2. Whether respondent is entitled to the damages
awarded.
The Ruling of this Court
The petition is partly meritorious.
Both Drivers are Negligent
Both the trial court and the Court of Appeals found that
Deocampo was at fault because he was driving very
fast prior to the collision. The Court of Appeals
sustained the trial court's finding that Deocampo was
running more than the normal cruising speed. Both the
trial court and the Court of Appeals noted that the
crewcab stopped 21 meters away from the point of
impact. Deocampo admitted that he stepped on the
brakes only after the collision.
Petitioners allege that Borres did not take the proper
lane before executing the U-turn. Petitioners allege that
Borres violated Section 45 (b) of RA 4136 and it was his
recklessness that was the proximate cause of the
accident.
Section 45 (b) of RA 4136 states:
Sec. 45. Turning at intersections. . . .
(b) The driver of a vehicle intending
to turn to the left shall approach
such intersection in the lane for
traffic to the right of and nearest
to the center line of the highway,
and, in turning, shall pass to the
left of the center of the
intersection, except that, upon
highways laned for traffic and
upon one-way highways, a left
turn shall be made from the left
lane of traffic in the direction in
which the vehicle is proceeding.
Petitioners further allege that since Borres was violating
a traffic rule at the time of the accident, respondent and
Borres were the parties at fault. Petitioners cite Article
2185 of the Civil Code, thus:
Art. 2185. Unless there is
proof to the contrary, it is presumed
that a person driving a motor vehicle
has been negligent if at the time of
the mishap, he was violating any
traffic regulation.
We rule that both parties were negligent in this case.
Borres was at the outer lane when he executed a U-turn.
Following Section 45 (b) of RA 4136, Borres should have
stayed at the inner lane which is the lane nearest to the
center of the highway. However, Deocampo was
equally negligent. Borres slowed down the pick-up
preparatory to executing the U-turn. Deocampo should
have also slowed down when the pick-up slowed
down. Deocampo admitted that he noticed the pick-up
232
when it was still about 20 meters away from him.
Vehicular traffic was light at the time of the incident.
The pick-up and the crewcab were the only vehicles on
the road. 14 Deocampo could have avoided the crewcab
if he was not driving very fast before the collision, as
found by both the trial court and the Court of Appeals.
We sustain this finding since factual findings of the
Court of Appeals affirming those of the trial court are
conclusive and binding on this Court. Further, the
crewcab stopped 21 meters from the point of impact. It
would not have happened if Deocampo was not driving
very fast.
Doctrine of Last Clear Chance Applies
Since both parties are at fault in this case, the doctrine
of last clear chance applies.
The doctrine of last clear chance states that where both
parties are negligent but the negligent act of one is
appreciably later than that of the other, or where it is
impossible to determine whose fault or negligence
caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so is
chargeable with the loss. In this case, Deocampo had
the last clear chance to avoid the collision. Since
Deocampo was driving the rear vehicle, he had full
control of the situation since he was in a position to
observe the vehicle in front of him. Deocampo had the
responsibility of avoiding bumping the vehicle in front
of him. A U-turn is done at a much slower speed to
avoid skidding and overturning, compared to running
straight ahead. Deocampo could have avoided the
vehicle if he was not driving very fast while following
the pick-up. Deocampo was not only driving fast, he
also admitted that he did not step on the brakes even
upon seeing the pick-up. He only stepped on the brakes
after the collision.
Petitioners are Solidarily Liable
LADECO alleges that it should not be held jointly and
severally liable with Deocampo because it exercised
due diligence in the supervision and selection of its
employees. Aside from this statement, LADECO did
not proffer any proof to show how it exercised due
diligence in the supervision and selection of its
employees. LADECO did not show its policy in hiring
its drivers, or the manner in which it supervised its
drivers. LADECO failed to substantiate its allegation
that it exercised due diligence in the supervision and
selection of its employees.
Hence, we hold LADECO solidarily liable with
Deocampo.
Respondent is Entitled to Moral Damages
We sustain the award of moral damages. Moral
damages are awarded to allow a plaintiff to obtain
means, diversion, or amusement that will serve to
alleviate the moral suffering he has undergone due to
233
the defendant's culpable action. The trial court found
that respondent, who was on board the pick-up when
the collision took place, suffered shock, serious anxiety,
and fright when the crewcab bumped his pick-up. We
sustain the trial court and the Court of Appeals in
ruling that respondent sufficiently showed that he
suffered shock, serious anxiety, and fright which entitle
him to moral damages.
Both the trial court and the Court of Appeals failed to
give any justification for the award of attorney's fees.
Awards of attorney's fees must be based on findings of
fact and of law and stated in the decision of the trial
court. Further, no premium should be placed on the
right to litigate. Hence, we delete the award of
attorney's fees.
WHEREFORE, we AFFIRM the 25 July 2001 Decision
and 11 March 2002 Resolution of the Court of Appeals
in CA-G.R. CV No. 51134 with MODIFICATION by
deleting the award of attorney's fees.
SO ORDERED.
Carpio-Morales, Tinga and Velasco, Jr., JJ., concur.
Quisumbing, J., is on official leave.
AUSTRIA, vs. COURT OF APPEALS, ET AL.
G.R. No. 133323, 9 March 2000, 327 SCRA 688
See supra.
THE CONSOLIDATED BANK and TRUST
CORPORATION vs. COURT OF APPEALS, ET AL.
G.R. No. 138569, 11 September 2003, 410 SCRA 562
See supra.
d. Prescription
ARTICLE 1146. The following actions must be
instituted within four years:
(1) Upon an injury to the rights of the plaintiff;
(2) Upon a quasi-delict; (n)
CONSUMER ACT OF THE PHILIPPINES (R.A. No.
7394)
ARTICLE 169. Prescription. — All actions or claims
accruing under the provisions of this Act and the rules
and regulations issued pursuant thereto shall
prescribe within two (2) years from the time the
consumer transaction was consummated or the
deceptive or unfair and unconscionable act or practice
was committed and in case of hidden defects, from
discovery thereof.
SPOUSES FERRER vs. ERICTA, ET AL.
G.R. No. L-41767, 23 August 1978, 84 SCRA 705
ANTONIO, J p:
Mandamus to compel the immediate execution of the
Decision of the Court of First Instance of Quezon City,
Branch XVIII, presided over by respondent Judge, in
Civil Case No. Q-19647, dated July 21, 1975. The
pertinent facts are as follows:
In a complaint for damages against respondents, dated
December 27, 1974 but actually filed on January 6, 1975
(Civil Case No. Q-19647), and assigned to the sala of
respondent Judge, it was alleged that defendants Mr.
and Mrs. Francis Pfleider, residents of Bayawan,
Negros Oriental, were the owners or operators of a
Ford pick-up car; that at about 5:00 o'clock in the
afternoon of December 31, 1970, in the streets of
Bayawan, Negros Oriental, their son, defendant Dennis
Pfleider, who was then only sixteen (16) years of age,
without proper official authority, drove the above-
described vehicle, without due regard to traffic rules
and regulations, and without taking the necessary
precaution to prevent injury to persons or damage to
property, and as a consequence the pickup car was
overturned, causing physical injuries to plaintiff
Annette Ferrer, who was then a passenger therein,
which injuries paralyzed her and required medical
treatment and confinement at different hospitals for
more than two (2) years; that as a result of the physical
injuries sustained by Annette, she suffered
unimaginable physical pain, mental anguish, and her
parents also suffered mental anguish, moral shock and
spent a considerable sum of money for her treatment.
They prayed that defendants be ordered to reimburse
them for actual expenses as well as other damages.
In due time, defendants filed their answer, putting up
the affirmative defense that defendant Dennis Pfleider
exercised due care and utmost diligence in driving the
vehicle afore mentioned and alleging that Annette
Ferrer and the other persons aboard said vehicle were
not passengers in the strict sense of the term, but were
merely joy riders and that, consequently, defendants
had no obligation whatsoever to plaintiffs.
At the pre-trial on May 12, 1975, only plaintiffs-
petitioners and their counsel were present.
Consequently, defendants-private respondents were
declared in default and the plaintiffs-petitioners were
allowed to present their evidence ex parte. On May 21,
1975, petitioners moved that they be granted an
extension of ten (10) days from May 22, 1975 to present
her evidence, which was granted by the court a quo. The
presentation of petitioners' evidence was later
continued by the trial court to June 16, 1975, when the
deposition of Annette Ferrer was submitted by
petitioners and admitted by the trial court.
On June 26, 1975, private respondents filed a motion to
"set aside the order of default and subsequent
pleadings" on the ground that "defendants' failure to
appear for pre-trial was due to accident or excusable
neglect," This was opposed by petitioners on the
ground that the said pleading was not under oath,
contrary to the requirements of Sec. 3, Rule 18 of the
Rules, and that it was not accompanied by an affidavit
of merit showing that the defendants have a good
defense. In view of this, the motion of private
respondents was denied by respondent Judge on July
21, 1975. On the same date, respondent Judge rendered
judgment against private respondents, finding that the
minor, Dennis Pfleider, was allowed by his parents to
operate a Ford pick-up car and because of his reckless
negligence caused the accident in question, resulting in
injuries to Annette, and ordering the defendants, as a
result thereof, to pay jointly and severally the plaintiffs
the following amounts; (1) 24,500.00 for actual
expenses, hospitalization and medical expenses; (2)
P24,000.00 for actual expenses for the care, medicines of
plaintiff Annette for helps from December 31, 1970 to
December 31, 1974; (3) P50,000.00 for moral damages;
(4) P10,000.00 for exemplary damages; (5) P5,000.00 for
attorney's fees; and 16) costs of suit.
On September 1, 1975, private respondents filed a
Motion for Reconsideration of the decision and of the
order denying the motion to set aside order of default,
based on the following grounds: (1) the complaint
states no cause of action insofar as Mr. and Mrs.
Pfleider are concerned because it does not allege that at
the time of the mishap, defendant Dennis Pfleider was
living with them, the fact being that at such time he was
living apart from them, hence, there can be no
application of Article 2180 of the Civil Code, upon
which parents' liability is premised; and (2) that the
complaint shows on its face "that it was filed only on
January 6, 1975, or after the lapse of MORE THAN
FOUR YEARS from the date of the accident on
December 31, 1970", likewise appearing from the
complaint and, therefore, the action has already
prescribed under Article 1146 of the Civil Code.
A Supplemental Motion for Reconsideration was
subsequently filed by defendants-private respondents
on September 10, 1975, alleging that their defense of
prescription has not been waived and may be raised
even at such stage of the proceedings because on the
face of the complaint, as well as from the plaintiff's
evidence, their cause of action had already prescribed,
citing as authority the decision of this Court in
Philippine National Bank v. Pacific Commission House, as
well as the decisions quoted therein. The Opposition 4
to the above supplemental motion interposed by
plaintiffs-petitioners averred that: (a) the defense of
prescription had been waived while the defense that
the complaint states no cause of action "is available only
at any time not later than the trial and prior to the
decision"; (b) inasmuch as defendants have been
declared in default for failure to appear at the pretrial
conference, they have lost their standing in court and
cannot be allowed to adduce evidence nor to take part
in the trial, in accordance with Section 2 of Rule 18 of
the Rules of Court; and (c) the motion and
supplemental motion for reconsideration are pro forma
because the defenses raised therein have been
234
previously raised and passed upon by respondent court
in resolving defendants' motion to set aside order of
default. Being pro forma, said motion and
supplemental motion do not suspend the running of
the thirty-day period to appeal, which was from
August 5, 1975, when defendants received a copy of the
decision, to September 4, 1975, and hence the decision
has already become final and executory. Plaintiffs-
petitioners accordingly prayed that a writ of execution
be issued to enforce the judgment in their favor.
On September 23, 1975, respondent judge, without
setting aside the order of default, issued an order
absolving defendants from any liability on the grounds
that: (a) the complaint states no cause of action because
it does not allege that Dennis Pfleider was living with
his parents at the time of the vehicular accident,
considering that under Article 2180 of the Civil Code,
the father and, in case of his death or incapacity the
mother, are only responsible for the damages caused by
their minor children who live in their company; and (b)
that the defense of prescription is meritorious, since the
complaint was filed more than four (4) years after the
date of the accident, and the action to recover damages
based on quasi-delict prescribes in four (4 years. Hence,
the instant petition for mandamus.
The basic issue is whether the defense of prescription
had been deemed waived by private respondents'
failure to allege the same in their answer.
As early as Chua Lamko v. Dioso, et al., this Court
sustained the dismissal on a counterclaim on the
ground of prescription, although such defense was not
raised in the answer of the plaintiff. Thus, this Court
held that where the answer does not take issue with the
complaint as to dates involved in the defendant's claim
of prescription, his failure to specifically plead
prescription in the answer does not constitute a waiver
of the defense of prescription, it was explained that the
defense of prescription, even if not raised in a motion to
dismiss or in the answer, is not deemed waived unless
such defense raises issues of fact not appearing upon
the preceding pleading.
In Philippine National Bank v. Perez, et al., which was an
action filed by the Philippine National Bank on March
22, 1961 for revival of a judgment rendered on
December 29, 1949 against Amando Perez, Gregorio
Pumuntoc and Virginia de Pumuntoc pursuant to
Section 6, Rule 39 of the Rules of Court, the defendants
were declared in default for their failure to file their
answer. There upon, the plaintiff submitted its
evidence, but when the case was submitted for
decision, the court a quo dismissed the complaint on the
ground that plaintiff's cause of action had already
prescribed under Articles 1144 and 1152 of the Civil
Code. The plaintiff in said case, contending that since
prescription is a defense that can only be set up by
defendants, the court could not motu proprio consider it
as a basis for dismissal, moved to reconsider the order,
235
but its motion was denied. When the issue was raised
to this Court, We ruled:
"It is true that the defense of
prescription can only be considered if
the came is invoked as such in the
answer of the defendant and that in
this particular instance no such
defense was invoked because the
defendants had been declared in
default, but such rule does not obtain
when the evidence shows that the
cause of action upon which plaintiff's
complaint is based is already barred
by the statute of limitations."
(Emphasis supplied.)
Again, in Philippine National Bank v. Pacific Commission
House, where the action sought to revive a judgment
rendered by the Court of First Instance of Manila on
February 3, 1953 and it was patent from the stamp
appearing on the first page of the complaint that the
complaint was actually filed on May 31, 1963, this
Court sustained the dismissal of the complaint on the
ground of prescription, although such defense was not
raised in the answer, overruling the appellants'
invocation of Section 2 of Rule 9 of the Rules of Court
that "defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived." We held therein that ". . . the fact that the
plaintiff's own allegation in the complaint or the
evidence it presented shows clearly that the action had
prescribed removes this case from the rule regarding
waiver of the defense by failure to plead the same."
In the present case, there is no issue of fact involved in
connection with the question of prescription. The
complaint in Civil Case No. Q-19647 alleges that the
accident which caused the injuries sustained by
plaintiff Annette Ferrer occurred on December 31, 1970.
It is undisputed that the action for damages was only
filed on January 6, 1976. Actions for damages arising
from physical injuries because of a tort must be filed
within four years. 8 The four-year period begins from
the day the quasi-delict is committed or the date of the
accident.
WHEREFORE, the instant petition for mandamus is
hereby DISMISSED, without pronouncement as to
costs.
Fernando (Chairman), Barredo, Aquino, Concepcion Jr.,
and Santos, JJ., concur.
KRAMER, JR., ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 83524. October 13, 1989, 178 SCRA 518
GANCAYCO, J p:
The principal issue in this Petition for Review is
whether or not a Complaint for damages instituted by
the petitioners against the private respondent arising
from a marine collision is barred by the statute of
limitations.
The record of the case discloses that in the early
morning of April 8, 1976, the F/B Marjolea, a fishing
boat owned by the petitioners Ernesto Kramer, Jr. and
Marta Kramer, was navigating its way from
Marinduque to Manila. Somewhere near Maricabon
Island and Cape Santiago, the boat figured in a collision
with an inter-island vessel, the M/V Asia Philippines
owned by the private respondent Trans-Asia Shipping
Lines, Inc. As a consequence of the collision, the F/B
Marjolea sank, taking with it its fish catch.
After the mishap, the captains of both vessels filed their
respective marine protests with the Board of Marine
Inquiry of the Philippine Coast Guard. The Board
conducted an investigation for the purpose of
determining the proximate cause of the maritime
collision.
On October 19, 1981, the Board concluded that the loss
of the F/B Marjolea and its fish catch was attributable
to the negligence of the employees of the private
respondent who were on board the M/V Asia
Philippines during the collision. The findings made by
the Board served as the basis of a subsequent Decision
of the Commandant of the Philippine Coast Guard
dated April 29, 1982 wherein the second mate of the
M/V Asia Philippines was suspended from pursuing
his profession as a marine officer.
On May 30, 1985, the petitioners instituted a Complaint
for damages against the private respondent before
Branch 117 of the Regional Trial Court in Pasay City.
The suit was docketed as Civil Case No. 2907-P.
The private respondent filed a Motion seeking the
dismissal of the Complaint on the ground of
prescription. He argued that under Article 1146 of the
Civil Code, the prescriptive period for instituting a
Complaint for damages arising from a quasi-delict like a
maritime collision is four years. He maintained that the
petitioners should have filed their Complaint within
four years from the date when their cause of action
accrued, i.e., from April 8, 1976 when the maritime
collision took place, and that accordingly, the
Complaint filed on May 30, 1985 was instituted beyond
the four-year prescriptive period.
For their part, the petitioners contended that maritime
collisions have peculiarities and characteristics which
only persons with special skill, training and experience
like the members of the Board of Marine Inquiry can
properly analyze and resolve. The petitioners argued
that the running of the prescriptive period was tolled
by the filing of the marine protest and that their cause
of action accrued only on April 29, 1982, the date when
the Decision ascertaining the negligence of the crew of
the M/V Asia Philippines had become final, and that
the four-year prescriptive period under Article 1146 of
the Civil Code should be computed from the said date.
The petitioners concluded that inasmuch as the
Complaint was filed on May 30, 1985, the same was
seasonably filed.
In an Order dated September 25, 1986, the trial court
denied the Motion filed by the private respondent. The
trial court observed that in ascertaining negligence
relating to a maritime collision, there is a need to rely
on highly technical aspects attendant to such collision,
and that the Board of Marine Inquiry was constituted
pursuant to the Philippine Merchant Marine Rules and
Regulations, which took effect on January 1, 1975 by
virtue of Letter of Instruction No. 208 issued on August
12, 1974 by then President Ferdinand E. Marcos,
precisely to answer the need. The trial court went on to
say that the four-year prescriptive period provided in
Article 1146 of the Civil Code should begin to run only
from April 29, 1982, the date when the negligence of the
crew of the M/V Asia Philippines had been finally
ascertained. The pertinent portions of the Order of the
trial court are as follows —
xxx xxx xxx
The private respondent elevated the case the Court of
Appeals by way of a special civil action for certiorari
and prohibition, alleging therein that the trial court
committed a grave abuse of discretion in refusing to
dismiss the Complaint filed by the petitioners. The case
was assigned to the Second Division of the appellate
court and was docketed as Case No. CA-G.R. SP No.
12032.
In a Decision dated November 27, 1987, and clarified in
a Resolution dated January 12, 1988, the Court of
Appeals granted the Petition filed by the private
respondent and ordered the trial court to dismiss the
Complaint. The pertinent portions of the Decision of the
appellate court are as follows —
xxx xxx xxx
Hence, the instant Petition wherein the arguments
raised by the petitioner before the trial court are
reiterated. xxx
xxx xxx xxx
The petition is devoid of merit. Under Article 1146 of
the Civil Code, an action based upon a quasi-delict must
be instituted within four (4) years. The prescriptive
period begins from the day the quasi-delict is
committed. In Paulan vs. Sarabia, this Court ruled that in
an action for damages arising from the collision of two
(2) trucks, the action being based on a quasi-delict, the
four (4) year prescriptive period must be counted from
the day of the collision.
In Español vs. Chairman, Philippine Veterans
Administration, this Court held as follows —
236

"The right of action accrues when
there exists a cause of action, which
consists of 3 elements, namely: a) a
right in favor of the plaintiff by
whatever means and under whatever
law it arises or is created; b) an
obligation on the part of defendant to
respect such right; and c) an act or
omission on the part of such
defendant violative of the right of the
plaintiff . . . It is only when the last
element occurs or takes place that it
can be said in law that a cause of
action has arisen . . ."
From the foregoing ruling, it is clear that the
prescriptive period must be counted when the last
element occurs or takes place, that is, the time of the
commission of an act or omission violative of the right
of the plaintiff, which is the time when the cause of
action arises.
It is therefore clear that in this action for damages
arising from the collision of two (2) vessels the four (4)
year prescriptive period must be counted from the day
of the collision. The aggrieved party need not wait for a
determination by an administrative body like a Board
of Marine Inquiry, that the collision was caused by the
fault or negligence of the other party before he can file
an action for damages. The ruling in Vasquez does not
apply in this case. Immediately after the collision the
aggrieved party can seek relief from the courts by
alleging such negligence or fault of the owners, agents
or personnel of the other vessel.
Thus, the respondent court correctly found that the
action of petitioner has prescribed. The collision
occurred on April 8, 1976. The complaint for damages
was filed in court only on May 30, 1985, way beyond
the four (4) year prescriptive period.
WHEREFORE, the petition is dismissed. No costs.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ.,
concur.
e. Force majeure
ARTICLE 1170. Those who in the performance of
their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the
tenor thereof, are liable for damages. (1101)
GOTESCO INVESTMENT CORPORATION
vs. CHATTO, ET AL.
G.R. No. 87584, 16 June 1992, 210 SCRA 18
DAVIDE, JR., J p:
237
Assailed in this petition for review under Rule 45 of the
Rules of Court are both the Decision promulgated on
27 July 1988 and the Resolution dated 14 March 1989 of
the respondent Court of Appeals in C.A.-G.R. CV No.
09699 which, respectively affirmed in toto the decision
of Branch XXI of the Regional Trial Court of Cebu in
Civil Case No. R-22567 entitled "Gloria Chatto, et al.
versus Gotesco Investment Corporation", and denied
petitioner's motion to reconsider the same.
xxx xxx xxx
The antecedent facts, as found by the trial court and
affirmed by the respondent Court, are summarized by
the latter in the challenged decision as follows:
"The evidence shows that in the
afternoon of June 4, 1982 plaintiff
Gloria E. Chatto, and her 15-year old
daughter, plaintiff Lina Delza E.
Chatto went to see the movie 'Mother
Dear' at Superama I theater, owned
by defendant Gotesco Investment
Corporation. They bought balcony
tickets but even then were unable to
find seats considering the number of
people patronizing the movie. Hardly
ten (10) minutes after entering the
theater, the ceiling of its balcony
collapsed. The theater was plunged
into darkness and pandemonium
ensued. Shocked and hurt, plaintiffs
managed to crawl under the fallen
ceiling. As soon as they were able to
get out to the street they walked to
the nearby FEU Hospital where they
were confined and treated for one (1)
day.
The next day, they transferred to the
UST hospital. Plaintiff Gloria Chatto
was treated in said hospital from June
5 to June 19 and plaintiff Lina Delza
Chatto from June 5 to 11. Per Medico
Legal Certificate (Exh. "C") issued by
Dr. Ernesto G. Brion, plaintiff Lina
Delza Chatto suffered the following
injuries:
xxx xxx xxx
Defendant tried to avoid liability by
alleging that the collapse of the
ceiling of its theater was done due to
force majeure. It maintained that its
theater did not suffer from any
structural or construction defect.
(Exh. 1, 2, 3, 4, & 5)"
xxx xxx xxx
The petition presents both factual and legal issues. The
first relates to the cause of the collapse of the ceiling
while the latter involves the correctness of the
admission of the exhibits in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this
Court in cases brought to it from this Court of Appeals
is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive,
except only where a case is shown as coming under the
accepted exceptions. None of the exceptions which this
Court has painstakingly summarized in several cases
has been shown to exist in this petition. Petitioner's
claim that the collapse of the ceiling of the theater's
balcony was due to force majeure is not even founded on
facts because its own witness, Mr. Jesus Lim Ong,
admitted that "he could not give any reason why the
ceiling collapsed." Having interposed it as a defense, it
had the burden to prove that the collapse was indeed
caused by force majeure. It could not have collapsed
without a cause. That Mr. Ong could not offer any
explanation does not imply force majeure. As early as
eighty-five (85) years ago, this Court had the occasion
to define force majeure. In Pons y Compañia vs. La
Compañia Maritima, this Court held:
"An examination of the Spanish and
American authorities concerning the
meaning of force majeure shows that
the jurisprudence of these two
countries practically agree upon the
meaning of this phrase.
Blackstone, in his Commentaries on
English Law, defines it as —
'Inevitable accident or casualty;
an accident produced by any
physical cause which is
irresistible; such as lightning,
tempest, perils of the sea,
inundation, or earthquake; the
sudden illness or death of a
person.' (2 Blackstone's
Commentaries, 122; Story on
Bailments, sec. 25.)
Escriche, in his Diccionario de
Legislacion y Jurisprudence, defines
fuerza mayor as follows:
'The event which we could
neither foresee nor resist; as,
for example, the lightning
stroke, hail, inundation,
hurricane, public enemy,
attack by robbers; Vis major
est, says Cayo, ea quae consilio
humano neque provideri neque
vitari potest. Accident and
mitigating circumstances.'
Bouvier defines the same as —
'Any accident due to natural
causes, directly, exclusively
without human intervention,
such as could not have been
prevented by any kind of
oversight, pains, and care
reasonably to have been
expected.' (Law Reports, 1
Common Pleas Division, 423;
Law Reports, 10 Exchequer,
255.)
Cockburn, chief justice, in a well-
considered English case (1 Common
Pleas Division, 34, 432), said that
where a captain —
'Uses all the known means to
which prudent and
experienced captains
ordinarily have recourse, he
does all that can be reasonably
required of him; and if, under
such circumstances, he is
overpowered by storm or other
natural agency, he is within the
rule which gives immunity
from the effects of such vis
major.'
The term generally applies, broadly
speaking, to natural accidents, such
as those caused by lightning,
earthquake, tempests, public enemy,
etc."
Petitioner could have easily discovered the cause of the
collapse if indeed it were due to force majeure. To Our
mind, the real reason why Mr. Ong could not explain
the cause or reason is that either he did not actually
conduct the investigation or that he is, as the
respondent Court impliedly held, incompetent. He is
not an engineer, but an architect who had not even
passed the government's examination. Verily, the post-
incident investigation cannot be considered as material
to the present proceedings. What is significant is the
finding of the trial court, affirmed by the respondent
Court, that the collapse was due to construction defects.
There was no evidence offered to overturn this finding.
The building was constructed barely four (4) years prior
to the accident in question. It was no shown that any of
the causes denominated as force majeure obtained
immediately before or at the time of the collapse of the
ceiling. Such defects could have been easily discovered
if only petitioner exercised due diligence and care in
keeping and maintaining the premises. But as disclosed
by the testimony of Mr. Ong, there was no adequate
238
inspection of the premises before the date of the
accident. His answers to the leading questions on
inspection disclosed neither the exact dates of said
inspection nor the nature and extent of the same. That
the structural designs and plans of the building were
duly approved by the City Engineer and the building
permits and certificate of occupancy were issued do not
at all prove that there were no defects in the
construction, especially as regards the ceiling,
considering that no testimony was offered to prove that
it was ever inspected at all.
It is settled that:
"The owner or proprietor of a place of
public amusement impliedly
warrants that the premises,
appliances and amusement devices
are safe for the purpose for which
they are designed, the doctrine being
subject to no other exception or
qualification than that he does not
contract against unknown defects not
discoverable by ordinary or
reasonable means."
This implied warranty has given rise to the rule that:
"Where a patron of a theater or other
place of public amusement is injured,
and the thing that caused the injury is
wholly and exclusively under the
control and management of the
defendant, and the accident is such as
in the ordinary course of events
would not have happened if proper
care had been exercised, its
occurrence raises a presumption or
permits of an inference of negligence
on the part of the defendant."
That presumption or inference was not overcome by
the petitioner.
Besides, even assuming for the sake of argument that,
as petitioner vigorously insists, the cause of the collapse
was due to force majeure, petitioner would still be liable
because it was guilty of negligence, which the trial
court denominated as gross. As gleaned from Bouvier's
definition of and Cockburn's elucidation on force
majeure, for one to be exempt from any liability because
of it, he must have exercised care, i.e., he should not
have been guilty of negligence.
xxx xxx xxx
All told, the instant petition is without merit.
WHEREFORE, judgment is hereby rendered DENYING
the instant petition with costs against petitioner.
SO ORDERED.
239
Gutierrez, Jr, Feliciano, Bidin and Romero, JJ ., concur.
NATIONAL POWER CORPORATION, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 96410, 3 July 1992.
NOCON, J p:
Before Us is a petition for review on certiorari instituted
by the National Power Corporation (NPC) and
Benjamin Chavez, Plant Superintendent of NPC, from
the decision of the Court of Appeals promulgated on
September 18, 1990. 1 The appellate court affirmed in
toto the decision in Civil Case No. SM-1552 of the
Regional Trial Court of Malolos, Bulacan, Branch XVI,
which awarded damages, interest, attorney's fees and
litigation expenses against petitioners in the following
amounts with interest at 12% per annum from the date
of filing of the complaint until fully paid:
xxx xxx xxx
The petitioners were further ordered to pay the private
respondents 30% of the amounts payable by them as
attorney's fees and P10,000.00 as litigation expenses,
and to pay the costs of suit.
It appears that in the early morning hours of October
27, 1978, at the height of typhoon "Kading", a massive
flood covered the towns near Angat Dam, particularly
the town of Norzagaray, causing several deaths and the
loss and destruction of houses, farms, plants, working
animals and other properties of the people residing
near the Angat River. Private respondents recalled that
on the said day, they were awakened by the sound of
rampaging water all around them. The water came
swiftly and strongly that before they could do anything
to save their belongings, their houses had submerged,
some even swept away by the strong current. A
number of people were able to save their lives only by
climbing trees.
Private respondents blamed the sudden rush of water
to the reckless and imprudent opening of all the three
(3) floodgates of the Angat Dam spillway, without prior
warning to the people living near or within the vicinity
of the dam.
Petitioners denied private respondents' allegations and,
by way of defense, contended that they have
maintained the water in the Angat Dam at a safe level
and that the opening of the spillways was done
gradually and after all precautionary measures had
been taken. Petitioner NPC further contended that it
had always exercised the diligence of a good father in
the selection of its officials and employees and in their
supervision. It also claimed that written warnings were
earlier sent to the towns concerned. At the time
typhoon "Kading" hit Bulacan with its torrential rain, a
great volume of flood water flowed into the dam's
reservoir necessitating the release of the water therein
in order to prevent the dam from collapsing and
causing the loss of lives and tremendous damage to
livestock and properties.
Petitioners further contended that there was no direct
causal relationship between the alleged damages
suffered by the respondents and the acts and omissions
attributed to the former. That it was the respondents
who assumed the risk of residing near the Angat River,
and even assuming that respondents suffered damages,
the cause was due to a fortuitous event and such
damages are of the nature and character of damnum
absque injuria, hence, respondents have no cause of
action against them.
xxx xxx xxx
We find the petition devoid of merit.
We do not agree with the petitioners that the decision
handed down in Juan F. Nakpil & Sons, supra, is not
applicable to the present case. The doctrine laid down
in the said case is still good law, as far as the concurrent
liability of an obligor, in case of a force majeure, is
concerned.
The case of National Power Corp. v. Court of Appeals, as a
matter of fact, reiterated the ruling in Juan F. Nakpil &
Sons. In the former case, this Court ruled that the
obligor cannot escape liability, if upon the happening of
a fortuitous event or an act of God, a corresponding
fraud, negligence, delay or violation or contravention in
any manner of the tenor of the obligation as provided in
Article 1170 of the Civil Code which results in loss or
damage.
Petitioners contended that unlike in Juan F. Nakpil &
Sons, there was no privity of contract between herein
petitioners and private respondents. They further
alleged that they owed no specific duty to private
respondents in the same way that the architect of a
building owed a specific duty to its owner. Petitioners,
however, failed to consider that even if there was no
contractual relation between themselves and private
respondents, they are still liable under the law on quasi-
delict. Article 2176 of the Civil Code explicitly provides
"whoever by act or omission causes damage to another
there being fault or negligence is obliged to pay for the
damage done."
Neither can petitioners escape liability by invoking force
majeure. Acts of God or force majeure, by definition, are
extraordinary events not foreseeable or avoidable,
events that could not be foreseen, or which, though
foreseen, are inevitable. It is therefore not enough that
the event should not have been foreseen or anticipated,
as is commonly believed, but it must be one impossible
to foresee or to avoid. As a general rule, no person
shall be responsible for those events which could not be
foreseen or which though foreseen, were inevitable.
However, the principle embodied in the act of God
doctrine strictly requires that the act must be
occasioned solely by the violence of nature. Human
intervention is to be excluded from creating or entering
into the cause of the mischief. When the effect is found
to be in part the result of the participation of man,
whether due to his active intervention or neglect or
failure to act, the whole occurrence is then humanized
and removed from the rules applicable to the acts of
God.
"So generally it cannot be said that
damage, injury or loss is due to an act
of God where it was caused merely
by excessive or heavy rainfall, storms
and weather conditions which are not
unusual in character, those which
could have been reasonably
anticipated or where the injury
complained of is due rather to the
negligence or mismanagement of
man than to the disturbance of the
elements or where such damage,
injury or loss might have been
mitigated or prevented by diligence
exercised after the occurrence."
In the case at bar, although the typhoon "Kading" was
an act of God, petitioners can not escape liability
because their negligence was the proximate cause of the
loss and damage. The Court of Appeals found that:
"As hereinabove stated, it has been
shown that the defendants failed to
take the necessary safeguards to
prevent the danger that the Angat
Dam posed in a situation of such
nature as that of typhoon 'Kading'.
The representative of the 'PAGASA'
who testified in these proceedings,
Justo Iglesias, Jr., stated that based on
their records the rainfall on October
26 and 27, 1978 is classified only as
moderate, and could not have caused
flash floods. He testified that flash
floods exceeds 50 millimeters per
hour and lasts for at least two (2)
hours. He stated that typhoon
'Yaning' which occurred on October 7
to 14, 1978 gave a much heavier
rainfall than 'Kading', and so did
other previous typhoons."
This was corroborated by the testimonies of private
respondents, most of whom have lived in the area all
their lives, but had never before experienced such
flooding as would have placed them on alert, even
during previous stronger typhoons such as "Dading"
and "Yoling."
What's more, when the evidence shows that as early as
October 25, 1978 the newspapers had announced the
240
expected occurrence of a powerful typhoon code-
named "Kading". On October 26, 1978 Bulletin Today
had as its headline the coming of the typhoon. 13
Despite these announcements the water level in the
dam was maintained at its maximum from October 21
until midnight of October 26, 1978.
At 2100 hrs. of October 26, 1978, NPC started to open
the three floodgates simultaneously from 1 meter to 8
meters at 0100 hrs. of October 27, 1978, until all
floodgates were opened to the maximum of 14 to 14.5
meters by 0600 hrs. of the same day.
This was also the finding of the court a quo, which We
quote:
"The defendants contended that the
release of water had been 'gradual'.
The lower court did not find this true.
The exhibit presented by the
defendants (Exhs. AA and BB-2)
show that on October 26, 1978 there
was very little opening of the
spillways, ranging from 1 meter to 2
meters. However, from midnight or
from the first hours of October 27,
1978 the opening of all the three (3)
spillways started at 5 meters and
swiftly went as far up as 14 meters.
As observed correctly by the trial
court had the opening of all the three
(3) spillways been made earlier and
gradually, there would have been no
need to open the same suddenly.
"What made the situation worse was
that the opening of the spillways was
made at the unholy hours when
residents were asleep. The plaintiffs
all testified that they were never
given any warning that the spillways
would be opened to that extent. . . ."
It has been held in several cases that when the
negligence of a person concurs with an act of God in
producing a loss, such person is not exempt from
liability by showing that the immediate cause of the
damage was the act of God. To be exempt he must be
free from any previous negligence or misconduct by
which the loss or damage may have been occasioned.
Thus, We cannot give credence to petitioners' third
assignment of error that the damage caused by the
opening of the dam was in the nature of damnum absque
injuria, which presupposes that although there was
physical damage, there was no legal injury in view of
the fortuitous events. There is no question that
petitioners have the right, duty and obligation to
operate, maintain and preserve the facilities of Angat
Dam, but their negligence cannot be countenanced,
however noble their intention may be. The end does not
justify the means, particularly because they could have
241
done otherwise than simultaneously opening the
spillways to such extent. Needless to say, petitioners
are not entitled to counterclaim.
Petitioners insist that their giving of prior written
warning should absolve them from liability. Notice of
warning was served by them on "a responsible
employee in the office of the mayor of the municipality,
or in the absence of such responsible employee, on a
member of the municipal police force." That being the
case, they alleged that the presumption that official
duty has been performed must be credited in their
favor. The presumption was, however, refuted by the
evidence and testimonies of respondents who all
denied having been given any warning that the
spillways would be opened to such extent and at a
short period of time.
'The letter itself, addressed merely "TO ALL
CONCERNED", would not strike one to be of serious
importance, sufficient enough to set alarm and cause
people to take precautions for their safety's sake. As
testified to by driver Leonardo Garcia of the NPC, he
was instructed by Chavez to give notice "to any
personnel of the municipality [sic] or even the
policemen of the municipalities concerned regarding
the release of water from the reservoir." 20 His
instructions did not specify the municipal officer who
should receive the notice, but that priority must be
given to the police. 21 Thus, copies of the notices were
given to Pat. Carillo of Norzagaray, Cicero Castro,
municipal employee of Angat, Pat. Jaime Nicholas of
Bustos, Cpl. Josefino Legaspi of Baliwag, Pat. Luzvimin
Mariano of Plaridel and Pat. Dantes Manukduk of
Calumpit.
As observed by the Court of Appeals:
"Clearly, the notices were not
delivered, or even addressed to
responsible officials of the
municipalities concerned who could
have disseminated the warning
properly. They were delivered to
ordinary employees and policemen.
As it happened, the said notices do
not appear to have reached the
people concerned, which are the
residents beside the Angat River. The
plaintiffs in this case definitely did
not receive any such warning.
Indeed, the methods by which the
defendants allegedly sent the notice
or warning was so ineffectual that
they cannot claim, as they do in their
second assignment of error, that the
sending of said notice has absolved
them from liability."
WHEREFORE, finding no reversible error in the
Decision appealed from, the same is hereby affirmed in
toto, with cost against petitioner.

SO ORDERED.
Narvasa, C .J ., Paras, Padilla and Regalado, JJ ., concur.
CIPRIANO, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 107968, 30 October 1996, 263 SCRA 711
MENDOZA, J p:
This is a petition for review of the decision of the Court
of Appeals in CA-G.R. CV No. 36045 which affirmed in
toto the decision of Branch 58 of the Quezon City
Regional Trial Court, ordering the petitioner to pay
P252,155.00 to private respondent for the loss of the
latter's vehicle while undergoing rustproofing and
P10,000.00 in attorney's fees.
The facts of the case are as follows:
Petitioner Elias S. Cipriano is the owner of E.S. Cipriano
Enterprises, which is engaged in the rustproofing of
vehicles, under the style Mobilkote. On April 30, 1991,
private respondent Maclin Electronics, Inc., through an
employee, brought a 1990 model Kia Pride People's car
to petitioner's shop for rustproofing. The car had been
purchased the year before from the Integrated Auto
Sales , Inc. for P252,155.00.
The vehicle was received in the shop under Job Order
No. 123581, which showed the date it was received for
rustproofing as well its condition at the time. Neither
the time of acceptance nor the hour of release, however,
was specified. According to the petitioner, the car was
brought to this shop at 10 o'clock in the morning of
April 30, 1991 and was ready for release later that
afternoon, as it took only six hours to complete the
process of rustproofing.
In the afternoon of May 1, 1991, fire broke out at the
Lambat restaurant, which petitioner also owned,
adjoining his Mobilkote rustproofing shop. The fire
destroyed both the shop and the restaurant, including
private respondents' Kia Pride. The car had been kept
inside the building, allegedly to protect it from theft.
Petitioner claimed that despite efforts to save the
vehicle, there was simply not enough time to get it out
of the building, unlike three other cars which had been
saved because they were parked near the entrance of
the garage.
On May 8, 1991, private respondent sent a letter to
petitioner, demanding reimbursement for the value of
the Kia Pride. In reply, petitioner denied liability on the
ground that the fire was a fortuitous event. This
prompted private respondent to bring this suit for the
value of its vehicle and for damages against petitioner.
Private respondent alleged that its vehicle was lost due
to the negligence and imprudence of the petitioner,
citing petitioner's failure to register his business with
the Department of Trade and Industry under P.D. No.
1572 and to insure it as required in the rules
implementing the Decree.
In his Answer, petitioner invoked Art. 1174 of the Civil
Code and denied liability for the loss which he alleged
was due to a fortuitous event. He later testified that he
employed an electrician who regularly inspected the
lighting in his restaurant and rustproofing shop. In
addition, he claimed he had installed fire-fighting
devices and that the fire was an accident entirely
independent of his will and devoid of any negligence
on his part. He further averred that private
respondent's car was ready for release as early as
afternoon of April 30, 1991 and that it was private
respondent's delay in claiming it that was the cause of
the loss.
Petitioner explained that rustproofing involved
spraying asphalt-like materials underneath a motor
vehicle so that rust will not corrode its body and that
the materials and chemicals used for this purpose are
not inflammable. Therefore, he could not be made to
assume the risk of loss due to fire. He also claimed that
he was not required to register his business with the
Department of Trade and Industry, because he was not
covered by P.D. No. 1572.
On the other hand, private respondent argued that
petitioner was liable for the loss of the car even if it was
caused by a fortuitous event. It contended that the
nature of petitioner's business required him to assume
the risk because under P.D. No. 1572, petitioner was
required to insure his property as well as those of his
customers.
The trial court sustained the private respondent's
contention that the "failure of defendant to comply with
P.D. No. 1572 is in effect a manifest act of negligence
which renders defendant [petitioner herein] liable for
the loss of the car even if the same was caused by fire,"
even as it ruled that the business of rustproofing is
"definitely covered" by P.D. No. 1572. Since petitioner
did not register his business and insure it, he must bear
the cost of loss of his customers. As already noted, the
court ordered petitioner to pay private respondent
P252,155.00 with interest at 6% per annum from the
filing of the case and attorney's fees in the amount of
P10,000.00.
On appeal, the decision was affirmed. The Court of
Appeals ruled that the provisions of the Civil Code
relied upon by the petitioner are not applicable to this
case, and that the law applicable to the case is P.D. No.
1572, the purpose of which is to protect customers who
entrust their properties to service and repair
enterprises. The Court of Appeals held that by virtue of
the provisions of P.D. No. 1572 and its implementing
rules and regulations which require fire insurance
coverage prior to accreditation, owners of service and
repair enterprises assume the risk of loss of their
customer's property. The appellate court stated:
242
 xxx xxx xxx
Hence, this appeal. Petitioner contends that the fire
which destroyed private respondent's car was a
fortuitous event for which he cannot be held
responsible. In support of his argument, he cites the
following provisions of the Civil Code:
ART. 1174. Except in cases expressly
specified by the law, or when it is
otherwise declared by stipulation, or
when the nature of the obligation
requires the assumption of risk, no
person shall be responsible for those
events which could not be foreseen,
or which, though foreseen, were
inevitable.
ART. 1262. An obligation which
consists in the delivery of a
determinate thing shall be
extinguished if it should be lost or
destroyed without the fault of the
debtor, and before he has incurred in
delay.
When by law or stipulation, the
obligor is liable even for fortuitous
events, the loss of the thing does not
extinguish the obligation, and he
shall be responsible for damages. The
same rule applies when the nature of
the obligation requires the
assumption of risk.
The contention is without merit. The issue in this case is
whether petitioner was required to insure his business
and the vehicles received by him in the course of his
business and, if so, whether his failure to do so
constituted negligence, rendering him liable for loss
due to the risk required to be insured against. We hold
that both questions must be answered in the
affirmative.
We have already held that violation of a statutory duty
is negligence per se. In F.F. Cruz and Co., Inc. v. Court of
Appeals, we held the owner of a furniture shop liable for
the destruction of the plaintiff's house in a fire which
started in his establishment in view of his failure to
comply with an ordinance which required the
construction of a firewall. In Teague v. Fernandez, we
stated that where the very injury which was intended to
be prevented by the ordinance has happened, non-
compliance with the ordinance was not only an act of
negligence, but also the proximate cause of the death.
Indeed, the existence of a contract between petitioner
and private respondent does not bar a finding of
negligence under the principles of quasi-delict, as we
recently held in Fabre v. Court of Appeals. Petitioner's
negligence is the source of his obligation. He is not
being held liable for breach of his contractual obligation
243
due to negligence but for his negligence in not
complying with a duty imposed on him by law. It is
therefore immaterial that the loss occasioned to private
respondent was due to a fortuitous event, since it was
petitioner's negligence in not insuring against the risk
which was the proximate cause of the loss.
Thus, P.D. No. 1572, §1 requires service and repair
enterprises for motor vehicles, like that of petitioner's,
to register with the Department of Trade and Industry.
As condition for such registration or accreditation,
Ministry Order No. 32 requires covered enterprises to
secure insurance coverage. Rule III of this Order
provides in pertinent parts:
xxx xxx xxx
The insurance policy for the following risks like theft,
pilferage, fire, flood and loss should cover exclusively
the machines, motor vehicles, heavy equipment,
engines, electronics, electrical, airconditioners,
refrigerators, office machines and data processing
equipment, medical and dental equipment, other
consumer mechanical and industrial equipment stored
for repair and/or service in the premises of the
applicant.
There is thus a statutory duty imposed on petitioner
and it is for his failure to comply with this duty that he
was guilty of negligence rendering him liable for
damages to private respondent. While the fire in this
case may be considered a fortuitous event, this
circumstance cannot exempt petitioner from liability for
loss.
We think, however, that the Court of Appeals erred in
sustaining the award of attorney's fees by the lower
court. It is now settled that the reasons or grounds for
an award of attorney's fees must be set forth in the
decision of the court. They cannot be left to inference as
the appellate court held in this case. The reason for this
is that it is not sound policy to penalize the right to
litigate. An award of attorney's fees being an exception
to this policy and limited to the grounds enumerated in
the law, must be fully justified in the decision. It can not
simply be inserted as an item of recoverable damages in
the judgment of the court. Since in this case there is no
justification for the award of attorney's fees in the
decision of the trial court, it was error for the Court of
Appeals to sustain such award.
WHEREFORE, the decision, dated November 18, 1992,
of the Court of Appeals is AFFIRMED, with the
modification that the award of attorney's fees is
DELETED.
SO ORDERED.
Regalado, Romero, Puno, and Torres, Jr., JJ ., concur.
f. Exercise of diligence
ARTICLE 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.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages caused by the
minors or incapacitated persons who are under their
authority and live in their company.
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.
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.
The State is responsible in like manner when it acts
through a special agent; but not when the damage has
been caused by the official to whom the task done
properly pertains, in which case what is provided in
article 2176 shall be applicable.
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.
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. (1903a)
See cases discussed below
g. Mistake and waiver
GATCHALIAN vs. COURT OF APPEALS, ET AL.
G.R. No. 56487, 21 October 1991, 203 SCRA 126
FELICIANO, J p:
At noon time on 11 July 1973, petitioner Reynalda
Gatchalian boarded, as a paying passenger,
respondent's "Thames" mini-bus at a point in San
Eugenio, Aringay, La Union, bound for Bauang, of the
same province. On the way, while the bus was running
along the highway in Barrio Payocpoc, Bauang, La
Union, "a snapping sound" was suddenly heard at one
part of the bus and, shortly thereafter, the vehicle
bumped a cement flower pot on the side of the road,
went off the road, turned turtle and fell into a ditch.
Several passengers, including petitioner Gatchalian,
were injured. They were promptly taken to Bethany
Hospital at San Fernando, La Union, for medical
treatment. Upon medical examination, petitioner was
found to have sustained physical injuries on the leg,
arm and forehead, specifically described as follows:
lacerated wound, forehead; abrasion, elbow, left;
abrasion, knee, left; abrasion, lateral surface, leg, left.
On 14 July 1973, while injured passengers were
confined in the hospital, Mrs. Adela Delim, wife of
respondent, visited them and later paid for their
hospitalization and medical expenses. She also gave
petitioner P12.00 with which to pay her transportation
expense in going home from the hospital. However,
before Mrs. Delim left, she had the injured passengers,
including petitioner, sign an already prepared Joint
Affidavit which stated, among other things:
"That we were passengers of Thames
with Plate No. 52-222 PUJ Phil. 73
and victims after the said Thames
met an accident at Barrio Payocpoc
Norte, Bauang, La Union while
passing through the National
Highway No. 3;
That after a thorough investigation
the said Thames met the accident due
to mechanical defect and went off the
road and turned turtle to the east
canal of the road into a creek causing
physical injuries to us;
xxx xxx xxx
That we are no longer interested to
file a complaint, criminal or civil
against the said driver and owner of
the said Thames, because it was an
accident and the said driver and
owner of the said Thames have gone
to the extent of helping us to be
treated upon our injuries.
xxx xxx xxx
(Emphasis supplied)
Notwithstanding this document, petitioner Gatchalian
filed with the then Court of First Instance of La Union
an action extra contractu to recover compensatory and
moral damages. She alleged in the complaint that her
injuries sustained from the vehicular mishap had left
her with a conspicuous white scar measuring 1 by 1/2
inches on the forehead, generating mental suffering and
an inferiority complex on her part; and that as a result,
she had to retire in seclusion and stay away from her
friends. She also alleged that the scar diminished her
facial beauty and deprived her of opportunities for
employment. She prayed for an award of: P10,000.00
for loss of employment and other opportunities;
P10,000.00 for the cost of plastic surgery for removal of
the scar on her forehead; P30,000.00 for moral damages;
and P1,000.00 as attorney's fees.
244
In defense, respondent averred that the vehicular
mishap was due to force majeure, and that petitioner had
already been paid and moreover had waived any right
to institute any action against him (private respondent)
and his driver, when petitioner Gatchalian signed the
Joint Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint upon
the ground that when petitioner Gatchalian signed the
Joint Affidavit, she relinquished any right of action
(whether criminal or civil) that she may have had
against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed
the trial court's conclusion that there had been a valid
waiver, but affirmed the dismissal of the case by
denying petitioner's claim for damages:
xxx xxx xxx
In the present Petition for Review filed in forma
pauperis, petitioner assails the decision of the Court of
Appeals and asks this Court to award her actual or
compensatory damages as well as moral damages.
We agree with the majority of the Court of Appeals
who held that no valid waiver of her cause of action
had been made by petitioner. The relevant language of
the Joint Affidavit may be quoted again:
"That we are no longer interested to file a
complaint, criminal or civil against the
said driver and owner of the said
Thames, because it was an accident
and the said driver and owner of the
said Thames have gone to the extent
of helping us to be treated upon our
injuries." (Emphasis supplied)
A waiver, to be valid and effective, must in the first
place be couched in clear and unequivocal terms which
leave no doubt as to the intention of a person to give up
a right or benefit which legally pertains to him. A
waiver may not casually be attributed to a person when
the terms thereof do not explicitly and clearly evidence
an intent to abandon a right vested in such person.
The degree of explicitness which this Court has
required in purported waivers is illustrated in Yepes and
Susaya v. Samar Express Transit (supra), where the Court
in reading and rejecting a purported waiver said:
" . . . It appears that before their
transfer to the Leyte Provincial
Hospital, appellees were asked to
sign as, in fact, they signed the
document Exhibit I wherein they
stated that 'in consideration of the
expenses which said operator has
incurred in properly giving us the
proper medical treatment, we hereby
manifest our desire to waive any and all
245
claims against the operator of the
Samar Express Transit.' . . . .
xxx xxx xxx
Even a cursory examination of the
document mentioned above will
readily show that appellees did not
actually waive their right to claim
damages from appellant for the latter's
failure to comply with their contract
of carriage All that said document
proves is that they expressed a 'desire'
to make the waiver — which obviously is
not the same as making an actual waiver
of their right. A waiver of the kind
invoked by appellant must be clear and
unequivocal (Decision of the Supreme
Court of Spain of July 8, 1887) — which
is not the case of the one relied upon in
this appeal." (Emphasis supplied)
If we apply the standard used in Yepes and Susaya, we
would have to conclude that the terms of the Joint
Affidavit in the instant case cannot be regarded as a
waiver cast in "clear and unequivocal" terms. Moreover,
the circumstances under which the Joint Affidavit was
signed by petitioner Gatchalian need to be considered.
Petitioner testified that she was still reeling from the
effects of the vehicular accident, having been in the
hospital for only three days, when the purported
waiver in the form of the Joint Affidavit was presented
to her for signing; that while reading the same, she
experienced dizziness but that, seeing the other
passengers who had also suffered injuries sign the
document, she too signed without bothering to read the
Joint Affidavit in its entirety. Considering these
circumstances, there appears substantial doubt whether
petitioner understood fully the import of the Joint
Affidavit (prepared by or at the instance of private
respondent) she signed and whether she actually
intended thereby to waive any right of action against
private respondent.
Finally, because what is involved here is the liability of
a common carrier for injuries sustained by passengers
in respect of whose safety a common carrier must
exercise extraordinary diligence, we must construe any
such purported waiver most strictly against the
common carrier. For a waiver to be valid and effective,
it must not be contrary to law, morals, public policy or
good customs. To uphold a supposed waiver of any
right to claim damages by an injured passenger, under
circumstances like those exhibited in this case, would
be to dilute and weaken the standard of extraordinary
diligence exacted by the law from common carriers and
hence to render that standard unenforceable. We
believe such a purported waiver is offensive to public
policy.
Petitioner Gatchalian also argues that the Court of
Appeals, having by majority vote held that there was
no enforceable waiver of her right of action, should
have awarded her actual or compensatory and moral
damages as a matter of course.
We have already noted that a duty to exercise
extraordinary diligence in protecting the safety of its
passengers is imposed upon a common carrier. In case
of death or injuries to passengers, a statutory
presumption arises that the common carrier was at fault
or had acted negligently "unless it proves that it [had]
observed extraordinary diligence as prescribed in
Articles 1733 and 1755." In fact, because of this
statutory presumption, it has been held that a court
need not even make an express finding of fault or
negligence on the part of the common carrier in order to
hold it liable. To overcome this presumption, the
common carrier must show to the court that it had
exercised extraordinary diligence to present the
injuries. The standard of extraordinary diligence
imposed upon common carriers is considerably more
demanding than the standard of ordinary diligence, i.e.,
the diligence of a good paterfamilias established in
respect of the ordinary relations between members of
society. A common carrier is bound to carry its
passengers safely "as far as human care and foresight
can provide, using the utmost diligence of a very
cautious person, with due regard to all the
circumstances".
Thus, the question which must be addressed is whether
or not private respondent has successfully proved that
he had exercised extraordinary diligence to prevent the
mishap involving his mini-bus. The records before the
Court are bereft of any evidence showing that
respondent had exercised the extraordinary diligence
required by law. Curiously, respondent did not even
attempt, during the trial before the court a quo, to prove
that he had indeed exercised the requisite extraordinary
diligence. Respondent did try to exculpate himself from
liability by alleging that the mishap was the result of
force majeure. But allegation is not proof and here again,
respondent utterly failed to substantiate his defense of
force majeure. To exempt a common carrier from liability
for death or physical injuries to passengers upon the
ground of force majeure, the carrier must clearly show
not only that the efficient cause of the casualty was
entirely independent of the human will, but also that it
was impossible to avoid. Any participation by the
common carrier in the occurrence of the injury will
defeat the defense of force majeure. In Servando v.
Philippine Steam Navigation Company, the Court summed
up the essential characteristics of force majeure by
quoting with approval from the Encyclopedia Juridica
Española:
"Thus, where fortuitous event or force
majeure is the immediate and
proximate cause of the loss, the
obligor is exempt from liability for
non-performance. The Partidas, the
antecedent of Article 1174 of the Civil
Code, defines 'caso fortuito' as 'an
event that takes place by accident and
could not have been foreseen.
Examples of this are destruction of
houses, unexpected fire, shipwreck,
violence of robbers.'
In its dissertation on the phrase 'caso fortuito' the
Encyclopedia Juridica Española says: 'In legal sense
and, consequently, also in relation to contracts, a 'caso
fortuito' presents the following essential characteristics:
(1) the cause of the unforeseen and unexpected
occurrence, or of the failure of the debtor to comply
with his obligation, must be independent of the human
will; 2) It must be impossible to foresee the event which
constitutes the 'caso fortuito', or if it can be foreseen, it
must be impossible to avoid; (3) the occurrence must be
such as to render it impossible for the debtor to fulfill
his obligation in a normal manner; and (4) the obligor
must be free from any participation in the aggravation
of the injury resulting to the creditor."
Upon the other hand, the record yields affirmative
evidence of fault or negligence on the part of
respondent common carrier. In her direct examination,
petitioner Gatchalian narrated that shortly before the
vehicle went off the road and into a ditch, a "snapping
sound" was suddenly heard at one part of the bus. One
of the passengers, an old woman, cried out, "What
happened?" ("Apay addan samet nadadaelen?"). The
driver replied, nonchalantly, "That is only normal"
("Ugali ti makina dayta"). The driver did not stop to
check if anything had gone wrong with the bus.
Moreover, the driver's reply necessarily indicated that
the same "snapping sound" had been heard in the bus
on previous occasions. This could only mean that the
bus had not been checked physically or mechanically to
determine what was causing the "snapping sound"
which had occurred so frequently that the driver had
gotten accustomed to it. Such a sound is obviously alien
to a motor vehicle in good operating condition, and
even a modicum of concern for life and limb of
passengers dictated that the bus be checked and
repaired. The obvious continued failure of respondent
to look after the roadworthiness and safety of the bus,
coupled with the driver's refusal or neglect to stop the
mini-bus after he had heard once again the "snapping
sound" and the cry of alarm from one of the passengers,
constituted wanton disregard of the physical safety of
the passengers, and hence gross negligence on the part
of respondent and his driver.
xxx xxx xxx
WHEREFORE, the Decision of the Court of Appeals
dated 24 October 1980, as well as the decision of the
then Court of First Instance of La Union dated 4
December 1975 are hereby REVERSED and SET ASIDE.
Respondent is hereby ORDERED to pay petitioner
Reynalda Gatchalian the following sums: 1) P15,000.00
as actual or compensatory damages to cover the cost of
plastic surgery for the removal of the scar on
petitioner's forehead; 2) P30,000.00 as moral damages;
246
and 3) P1,000.00 as attorney's fees, the aggregate
amount to bear interest at the legal rate of 6% per
annum counting from the promulgation of this decision
until full payment thereof Costs against private
respondent. LLphil
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ.,
concur.
h. Damum absque injuria
NATIONAL POWER CORPORATION, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 96410, 3 July 1992.
See supra.
III. VICARIOUS LIABILITY
ARTICLE 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.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages caused by the
minors or incapacitated persons who are under their
authority and live in their company.
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.
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.
The State is responsible in like manner when it acts
through a special agent; but not when the damage has
been caused by the official to whom the task done
properly pertains, in which case what is provided in
article 2176 shall be applicable.
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.
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. (1903a)
247
ARTICLE 2194. The responsibility of two or more
persons who are liable for quasi-delict is solidary. (n)
REPUBLIC ACT NO. 6809
AN ACT LOWERING THE AGE OF MAJORITY
FROM TWENTY-ONE TO EIGHTEEN YEARS,
AMENDING FOR THE PURPOSE EXECUTIVE
ORDER NUMBERED TWO HUNDRED NINE, AND
FOR OTHER PURPOSES
SECTION 1. Article 234 of Executive Order No.
209, the Family Code of the Philippines, is hereby
amended to read as follows:
"Art. 234. Emancipation
takes place by the attainment of
majority. Unless otherwise
provided, majority commences at
the age of eighteen years."
SECTION 2. Articles 235 and 237 of the same
Code are hereby repealed.
SECTION 3. Article 236 of the same Code is also
hereby amended to read as follows:
"Art. 236. Emancipation
shall terminate parental authority
over the person and property of the
child who shall then be qualified
and responsible for all acts of civil
life, save the exceptions established
by existing laws in special cases.
"Contracting marriage shall require
parental consent until the age of
twenty-one.
"Nothing in this Code shall be
construed to derogate from the duty
or responsibility of parents and
guardians for children and wards
below twenty-one years of age
mentioned in the second and third
paragraphs of Article 2180 of the
Civil Code."
SECTION 4. Upon the effectivity of this Act,
existing wills, bequests, donations, grants, insurance
policies and similar instruments containing references
and provisions favorable to minors will not retroact to
their prejudice.
SECTION 5. This Act shall take effect upon
completion of its publication in at least two (2)
newspapers of general circulation.
Approved: December 13, 1989
Published in the Philippine Star on December and
Malaya on December 16, 1989. Published in the
Official Gazette, Vol. 85 No. 51, 80 Supp., on
December 18, 1989.
1. PARENTS/GUARDIANS
EXCONDE vs. CAPUNO, ET AL.
G.R. No. L-10134, 29 June 1957
BAUTISTA ANGELO, J p:
Dante Capuno, son of Delfin Capuno, was accused of
double homicide through reckless imprudence for the
death of Isidoro Caperiña and Amado Ticzon on March
31, 1949 in the Court of First Instance of Laguna
(Criminal Case No. 15001). During the trial, Sabina
Exconde, as mother of the deceased Isidoro Caperiña,
reserved her right to bring a separate civil action for
damages against the accused. After trial, Dante Capuno
was found guilty of the crime charged and, on appeal,
the Court of Appeals affirmed the decision. Dante
Capuno was only fifteen (15) years old when he
committed the crime.
In line with her reservation, Sabina Exconde filed the
present action against Delfin Capuno and his son Dante
Capuno asking for damages in the aggregate amount of
P2,959.00 for the death of her son Isidoro Caperiña.
Defendants set up the defense that if any one should be
held liable for the death of Isidoro Caperiña, he is Dante
Capuno and not his father Delfin because at the time of
the accident, the former was not under the control,
supervision and custody of the latter. This defense was
sustained by the lower court and, as a consequence, it
only convicted Dante Capuno to pay the damages
claimed in the complaint. From this decision, plaintiff
appealed to the Court of Appeals but the case was
certified to us on the ground that the appeal only
involves questions of law.
It appears that Dante Capuno was a member of the Boy
Scouts Organization and a student of the Balintawak
Elementary School situated in a barrio in the City of San
Pablo and on March 31, 1949 he attended a parade in
honor of Dr. Jose Rizal in said city upon instruction of
the city school's supervisor. From the school Dante,
with other students, boarded a jeep and when the same
started to run, he took hold of the wheel and drove it
while the driver sat on his left side. They have not gone
far when the jeep turned turtle and two of its
passengers, Amado Ticzon and Isidoro Caperiña, died
as a consequence. It further appears that Delfin
Capuno, father of Dante, was not with his son at the
time of the accident, nor did he know that his son was
going to attend a parade. He only came to know it
when his son told him after the accident that he
attended the parade upon instruction of his teacher.
The only issue involved in this appeal is whether
defendant Delfin Capuno can be held civilly liable,
jointly and severally with his son Dante, for damages
resulting from the death of Isidoro Caperiña caused by
the negligent act of minor Dante Capuno.
The case comes under Article 1903 of the Spanish Civil
Code, paragraph 1 and 5, which provides:
"ART. 1903. The obligation
imposed by the next preceding
articles is enforceable not only for
personal acts and omissions, but also
for those of persons for whom
another is responsible.
The father, and, in case of his death
or incapacity, the mother, are liable
for any damages caused by the minor
children who live with them.
xxx xxx xxx
Finally, teachers or directors of arts
and trades are liable for any damages
caused by their pupils or apprentices
while they are under their custody."
Plaintiff contends that defendant Delfin Capuno is
liable for the damages in question jointly and severally
with his son Dante because at the time the latter
committed the negligent act which resulted in the death
of the victim, he was a minor and was then living with
his father, and inasmuch as these facts are not disputed,
the civil liability of the father is evident. And so,
plaintiff contends, the lower court erred in relieving the
father from liability.
We find merit in this claim. It is true that under the law
above quoted, "teachers or directors of arts and trades
are liable for any damages caused by their pupils or
apprentices while they are under their custody", but
this provision only applies to an institution of arts and
trades and not to any academic educational institution
(Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See 12
Manresa, 4th Ed., p. 557). Here Dante Capuno was then
a student of the Balintawak Elementary School and as
part of his extra-curricular activity, he attended the
parade in honor of Dr. Jose Rizal upon instruction of
the city school's supervisor. And it was in connection
with that parade that Dante boarded a jeep with some
companions and while driving it, the accident occurred.
In the circumstances, it is clear that neither the head of
that school, nor the city school's supervisor, could be
held liable for the negligent act of Dante because he was
not then a student of an institution of arts and trades as
provided for by law.
The civil liability which the law impose upon the father,
and, in case of his death or incapacity, the mother, for
any damages that may be caused by the minor children
who live with them, is obvious. This is a necessary
consequence of the parental authority they exercise
over them which imposes upon the parents the "duty of
supporting them, keeping them in their company,
educating them and instructing them in proportion to
their means", while, on the other hand, gives them the
248
"right to correct and punish them in moderation"
(Articles 154 and 155, Spanish Civil Code). The only
way by which they can relieve themselves of this
liability is if they prove that they exercised all the
diligence of a good father of a family to prevent the
damage (Article 1903, last paragraph, Spanish Civil
Code). This defendants failed to prove.
Wherefore, the decision appealed from is modified in
the sense that defendants Delfin Capuno and Dante
Capuno shall pay to plaintiff, jointly and severally, the
sum of P2,959.00 as damages, and the costs of action.
Bengzon, Montemayor, Labrador and Endencia, JJ.,
concur.
Paras, C.J., concurs in the result.
Separate Opinions
REYES, J.B.L., J., dissenting:
After mature consideration I believe we should affirm
the judgment relieving the father of liability. I can see
no sound reason for limiting Art. 1903 of the old Civil
Code to teachers of arts and trades and not to academic
ones. What substantial difference is there between them
in so far as concerns the proper supervision and
vigilance over their pupils? It cannot be seriously
contended that an academic teacher is exempt from the
duty of watching that his pupils do not commit a tort to
the detriment of third persons, so long as they are in a
position to exercise authority and supervision over the
pupil. In my opinion, in the phrase "teachers or heads
of establishments of arts and trades" used in Art. 1903
of the old Civil Code, the words "arts and trades" does
not qualify "teachers" but only "heads of
establishments". The phrase is only an updated version
of the equivalent terms "preceptores y artesanos" used
in the Italian and French Civil Codes.
If, as conceded by all commentators, the basis of the
presumption of negligence of Art. 1903 in some culpa in
vigilando that the parents, teachers, etc. are supposed
to have incurred in the exercise of their authority, it
would seem clear that where the parent places the child
under the effective authority of the teacher, the latter,
and not the parent, should be the one answerable for
the torts committed while under his custody, for the
very reason that the parent is not supposed to interfere
with the discipline of the school nor with the authority
and supervision of the teacher while the child is under
instruction. And if there is no authority, there can be no
responsibility.
In the case before us, there is no question that the pupil,
Dante Capuno, was instructed by the City School
Supervisor to attend the Rizal parade. His father could
not properly refuse to allow the child to attend, in
defiance of the school authorities. The father had every
reason to assume that in ordering a minor to attend a
parade with other children, the school authorities
249
would provide adequate supervision over them. If a
teacher or scout master was present, then he should be
the one responsible for allowing the minor to drive the
jeep without being qualified to do so. On the other
hand, if no teacher or master was at hand to watch over
the pupils, the school authorities are the ones
answerable for that negligence, and not the father.
At any rate, I submit that the father should not be held
liable for a tort that he was in no way able to prevent,
and which he had every right to assume the school
authorities would avoid. Having proved that he
entrusted his child to the custody of school authorities
that were competent to exercise vigilance over him, the
father has rebutted the presumption of Art. 1903 and
the burden of proof shifted to the claimant to show
actual negligence on the part of the parent in order to
render him liable.
Padilla and Reyes, A., JJ., concur.
SALEN, ET AL. vs. JOSE
G.R. No. L-14414, 27 April 1960
BAUTISTA ANGELO, J p:
On February 5, 1957, plaintiffs brought this action
against defendant before the Court of First Instance of
Camarines Norte to recover the sum of P2,000.00, with
legal interest thereon from July 18, 1952, plus attorney's
fees and other incidental expenses.
Defendant, in his answer, set up the defense that the
law upon which plaintiffs predicate their right to
recover does not here apply for the reason that that law
refers to quasi-delicts and not to criminal cases.
After trial, the court sustained the theory of defendant
and dismissed the complaint with costs. Hence the
present appeal.
Plaintiffs are the legitimate parents of Carlos Salen who
died single from wounds caused by Gumersindo Balce,
a legitimate son of defendant. At the time, Gumersindo
Balce was also single, a minor below 18 years of age,
and was living with defendant. As a result of Carlos
Salen's death, Gumersindo Balce was accused and
convicted of homicide and was sentenced to
imprisonment and to pay the heirs of the deceased an
indemnity in the amount of P2,000.00. Upon petition of
plaintiffs, the only heirs of the deceased, a writ of
execution was issued for the payment of the indemnity
but it was returned unsatisfied because Gumersindo
Balce was insolvent and had no property in his name.
Thereupon, plaintiffs demanded upon defendant,
father of Gumersindo, the payment of the indemnity
the latter has failed to pay, but defendant refused, thus
causing plaintiffs to institute the present action.
The question for determination is whether appellee can
be held subsidiary liable to pay the indemnity of
P2,000.00 which his son was sentenced to pay in the
criminal case filed against him.

In holding that the civil liability of the son of appellee
arises from his criminal liability and, therefore, the
subsidiary liability of appellee must be determined
under the provisions of the Revised Penal Code, and
not under Article 2180 of the new Civil Code which
only applies to obligations which arise from quasi-
delicts, the trial court made the following observation:
"The law provides that a person
criminally liable for a felony is also
civilly liable (Art. 100 of the Revised
Penal Code). But there is no law
which holds the father either
primarily or subsidiarily liable for the
civil liability incurred by the son who
is a minor of 18 years. Under Art. 101
of the Penal Code, the father is civilly
liable for the acts committed by his
son if the latter is an imbecile, or
insane, or under 9 years of age or
over 9 but under 15, who has acted
without discernment. Under Art. 102,
only inkeepers and tavern-keepers
are held subsidiarily liable and under
Art. 103 of the same Penal Code, the
subsidiary liability established in Art.
102 shall apply only 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.' By the principle of exclusio
unus exclusio ulterius, the defendant
in this case cannot he held subsidiary
liable for the civil liability of
Gumersindo Balce who has been
convicted of homicide for the killing
of the plaintiff's son Carlos Salen.
"ART. 2180 of the Civil Code,
relied upon by the plaintiffs, is not
applicable to the case at bar. It applies
to obligations which arise from quasi-
delicts and not to obligations which
arise from criminal offenses. Civil
liability arising from criminal
negligence or offenses is governed by
the provisions of the Penal Code and
civil liability arising from civil
negligence is governed by the
provision of the Civil Code. The
obligation imposed by Art. 2176 of
the New Civil Code expressly refers
to obligations which arise from quasi-
delicts. And obligations arising from
criminal offenses are never
obligations arising from quasi-delicts
(Commissioner's note). And
according to Art. 2177, the
'responsibility for fault of negligence
under Art. 2176 is entirely separate
and distinct from the civil liability
arising from negligence under the
Penal Code. . . .' "
While we agree with the theory that, as a rule, the civil
liability arising from a crime shall be governed by the
provisions of the Revised Penal Code, we disagree with
the contention that the subsidiary liability of persons
for acts of those who are under their custody should
likewise be governed by the same Code even in the
absence of any provision governing the case, for that
would leave the transgression of certain rights without
any punishment or sanction in the law. Such would be
the case if we would uphold the theory of appellee as
sustained by the trial court.
It is true that under Article 101 of the Revised Penal
Code, a father is made civilly liable for the acts
committed by his son only if the latter is an imbecile, an
insane, under 9 years of age, or over 9 but under 15
years of age, who acts without discernment, unless it
appears that there is no fault or negligence on his part.
This is because a son who commits the act under any of
those conditions is by law exempt from criminal
liability (Article 12, subdivisions 1, 2 and 3, Revised
Penal Code). The idea is not to leave the act entirely
unpunished but to attach certain civil liability to the
person who has the delinquent minor under his legal
authority or control. But a minor over 15 who acts with
discernment is not exempt from criminal liability, for
which reason the Code is silent as to the subsidiary
liability of his parents should he stand convicted. In
that case, resort should be had to the general law which
is our Civil Code.
The particular law that governs this case is Article 2180,
the pertinent portion of which provides: "The father
and, in case of his death or incapacity, the mother, are
responsible for damages caused by the minor children
who lived in their company." To hold that this
provision does not apply to the instant case because it
only covers obligations which arise from quasi-delicts
and not obligations which arise from criminal offenses,
would result in the absurdity that while for an act
where mere negligence intervenes the father or mother
may stand subsidiarily liable for the damage caused by
his or her son, no liability would attach if the damage is
caused with criminal intent. Verily, the void that
apparently exists in the Revised Penal Code is
subserved by this particular provision of our Civil
Code, as may be gleaned from some recent decisions of
this Court which cover equal or identical cases.
A case in point is Exconde vs. Capuno, 101 Phil., 843 the
facts of which are as follows:
"Dante Capuno, a minor of 15 years
of age, lives in the company of his
father, Delfin Capuno. He is a student
of the Balintawak Elementary School
in the City of San Pablo and a
250
 member of the Boy Scout
Organization of his school. On March
31, 1949, on the occasion of a certain
parade in honor of Dr. Jose Rizal in
the City of San Pablo, Dante Capuno
was one of those instructed by the
City School Supervisor to join the
parade. From the school, Dante
Capuno, together with other
students, boarded a jeep. When the
jeep started to run, Dante Capuno
took hold of the wheel and drove it
while the driver sat on his left side.
They have not gone far when the jeep
turned turtle and two of its
passengers, Amado Ticzon and Isidro
Caperiña died as a consequence. The
corresponding criminal action for
double homicide through reckless
imprudence was instituted against
Dante Capuno. During the trial,
Sabina Exconde, as mother of the
deceased Isidro Caperiña, reserved
her right to bring a separate civil
action for damages against the
accused. Dante Capuno was found
guilty of the criminal offense charged
against him. In line with said
reservation of Sabina Exconde, the
corresponding civil action for
damages was filed against Delfin
Capuno, Dante Capuno and others."
In holding Delfin Capuno jointly and severally liable
with his minor son Dante Capuno arising from the
criminal act committed by the latter, this Court made
the following ruling:
"The civil liability which the law
imposes upon the father and, in case
of his death or incapacity, the mother,
for any damages that may be caused
by the minor children who live with
them, is obvious. This is a necessary
consequence of the parental authority
they exercise over them which
imposes upon the parents the 'duty of
supporting them, keeping them in
their company, educating them in
proportion to their means', while, on
the other hand, gives them the '[right
to correct and punish them in
moderation' (Arts. 134 and 135,
Spanish Civil Code). The only way by
which they can relieve themselves of
this liability is if they prove that they
exercised all the diligence of a good
father of a family to prevent the
damage (Art. 1903, last paragraph,
Spanish Civil Code.) This defendants
failed to prove."
251
Another case in point is Araneta vs. Arreglado 104 Phil.,
524; 55 Off. Gaz. [9] 1961. The facts of this case are as
follows:
"On March 7, 1951, while plaintiff
Benjamin Araneta was talking with
the other students of the Ateneo de
Manila while seated atop a low
ruined wall bordering the Ateneo
grounds along Dakota Street, in the
City of Manila, Dario Arreglado, a
former student of the Ateneo,
chanced to pass by. Those on the wall
called Dario and conversed with him,
and in the course of their talk, twitted
him on his leaving the Ateneo and
enrolling in the De La Salle College.
Apparently, Arreglado resented the
banter and suddenly pulling from his
pocket a Japanese Luger pistol
(licensed in the name of his father
Juan Arreglado), fired the same at
Araneta, hitting him in the lower jaw,
causing him to drop backward,
bleeding profusely. Helped by his
friends, the injured lad was taken
first to the school infirmary and later
to the Singian Hospital, where he lay
hovering between life and death for
three days. The vigor of youth came
to his rescue; he rallied and after
some time finally recovered, the
gunshot wound left him with a
degenerative injury to the jawbone
(mandible) and a scar in the lower
portion of the face, where the bullet
had plowed through. The behavior of
Benjamin was likewise affected, he
becoming inhibited and morose after
leaving the hospital."
Dario Arreglado was indicted for frustrated homicide
and pleaded guilty, but in view of his youth, he being
only 14 years of age, the court suspended the
proceedings as prescribed by Article 80 of the Revised
Penal Code. Thereafter, an action was instituted by
Araneta and his father against Juan Arreglado, his wife,
and their son Dario, to recover material, moral and
exemplary damages. The court of first instance, after
trial, sentenced the Arreglados to pay P3,943.00 as
damages and attorney's fees. From this decision, the
Aranetas appealed in view of the meager amount of
indemnity awarded. This Court affirmed the decision
but increased the indemnity to P18,000.00. This is a
typical case of parental subsidiary liability arising from
the criminal act of a minor son.
Wherefore, the decision appealed from is reversed.
Judgment is hereby rendered ordering appellee to pay
appellants the sum of P2,000.00, with legal interest
thereon from the filing of the complaint, and the costs.
Parás C. J., Bengzon, Padilla, Montemayor, Labrador,
Concepción, Endencia, Barrera, and Gutiérrez David,
JJ., concur.
CANLAS vs. CHAN LIN PO, ET AL.
G.R. No. L-16929, 31 July 1961.
BARRERA, J p:
In Criminal Case No. 19353 filed with the Court of First
Instance of Manila, Juanito Chan was charged with
homicide through reckless imprudence, in that on June
11, 1951, being then the driver of a motor vehicle with
plate No. T-5713-1951, Manila, he drove and operated
said vehicle along Rizal Avenue Extension, Manila, in a
reckless and imprudent manner, thereby causing it to
hit Nicolas Paras, aged 65, and run over his head,
crushing it flat, resulting in the latter's instantaneous
death.
At the initial stage of the trial of said criminal case,
reservation was made by the private prosecutor
representing the widow of the deceased, for the filing of
a separate civil action, which was in fact subsequently
filed.
Notwithstanding his aforementioned reservation, the
private prosecutor continued handling the prosecution
of the criminal case until trial thereof was terminated.
In due time, decision was rendered the dispositive part
of which reads:
"Wherefore, finding the accused
Juanito Chan y Diala guilty beyond
reasonable doubt of the crime as
charged in the case at bar, the court
hereby sentences said accused Juanito
Chan y Diala to one (1) year and eight
(8) months of prision correccional, to
indemnify the heirs of the victim,
Nicolas Paras, in the amount of
P5,000.00, with subsidiary
imprisonment in case of insolvency,
and to pay the costs."
Upon appeal by the accused Juanito Chan, the Court of
Appeals, despite the fact that its attention was called to
the reservation to file a separate civil action, rendered
judgment thus:
"Wherefore, we hereby sentence
appellant to undergo an
indeterminate penalty of not less than
one (1) year and not more than four
(4) years of prision correccional.
With this only modification, the
decision appealed from is hereby
affirmed, with costs."
In the civil action filed pursuant to the reservation, it is
alleged, inter alia, that defendants Chan Lim Po,
Remedios Diala, and Lin Koo, were the operators and
owners of truck No. T-5713-1951, registered in the name
of defendant Lin Koo, and the driver of said vehicle on
June 11, 1951, was defendant Juanito Chan y Diala; that
the death of the victim, Nicolas Paras, left destitute his
widow, plaintiff Estanislawa Canlas, and their five
legitimate children; that defendants operators of the
truck in question had committed the unpardonable
fault and the imprudence of employing their co-
defendant Juanito Chan y Diala to drive said vehicle,
knowing as they do that the latter did not then have the
necessary license to drive motor vehicles, his license
having been confiscated by the authorities for various
traffic violations, and knowing, furthermore, that he
was insolvent and that he was employed only because
he was the son of defendants Chan Lim Po and
Remedios Diala.
Defendants, in their answer dated January 2, 1953,
alleged that prior to July 4, 1952, the sole owner and
operator of the truck in question was defendant Lim
Koo; that on July 4, 1952, said truck was bought by
defendant Remedios Diala; that defendant Chan Lim
Po, was never co-owner or co-operator of said vehicle;
that defendant Juanito Chan y Diala was not employed
as driver of said truck on June 11, 1951 when the
mishap occurred or at any time before or after said
date; and that on the alleged date of the accident, the
truck-referred to was out of order and was not used,
and was not involved in any accident.
On January 18, 1954 and on April 12, 1957, the case was
ordered dismissed and the records sent to the archives,
for failure of plaintiff Canlas to prosecute. However,
upon plaintiff's motion, on the ground that the reason
why she had not asked for the setting of the trial of the
civil case was because she was waiting for the outcome
of the trial of the criminal case (No. 19353), the present
case was ordered reinstated on July 3, 1957.
Finally, on April 7, 1958, this case was heard. Plaintiff
presented as her only witness her daughter, Isabel
Paras Vda. de Morales, who identified Exhibit A (copy
of the decision in Criminal Case No. 19353, CFI Manila)
and Exhibit B (copy of the decision of the Court of
Appeals in the same criminal case appealed to it — CA-
G.R. No. 14463-R). In addition, she testified regarding
the earning capacity of her deceased father as carpenter,
and the effect of his death upon her, her plaintiff
mother, and the other members of the family. Exhibit D
was, likewise, offered to show that plaintiff tried to
execute the judgment of the Court of Appeals as to the
indemnity of P5,000.00, and that defendant Juanito
Chan y Diala served the corresponding subsidiary
imprisonment, on account of his inability to pay the
indemnity.
Counsel for defendants did not cross-examine plaintiff's
sole witness, but limited himself to offering, as evidence
for defendants, Exhibits 1 and 2, the briefs filed in the
Court of Appeals in the criminal action, inviting
attention to Exhibits 1-A and 2-A, which apprised the
252
Court of Appeals of the reservation made by counsel
for herein plaintiff to file a separate civil action.
In its decision dated April 29, 1958 (the one now on
appeal) absolving defendants from the complaint, and
dismissing their (defendants') counterclaim, the lower
court stated:
"It is the contention of defendants
that when the trial court sentenced
the accused, Juanito Chan y Diala, in
the criminal action, to indemnify the
heirs of the deceased Nicolas Paras in
the amount of P5,000.00, which
sentence was affirmed by the Court
of Appeals, despite the aforesaid
reservation to file a separate civil
action, this constitutes res judicata,
and is a bar to the present civil action.
Defendants claim that while it is true
that the reservation was made,
nevertheless the same was
disregarded by the Court, and
abandoned by plaintiff, when
judgment was rendered as already
stated, without said plaintiff either
asking that the indemnity be stricken
out, or appealing from the portion of
the decision. On the other hand, it
appears that plaintiff had tried to
execute the judgment for indemnity.
The contention referred to is
meritorious; and no evidence having
been presented against the co-
defendants of Juanito Chan y Diala,
not even with respect to the
relationship of said Juanito Chan y
Diala with his co-defendants, it is not
seen how this action can prosper.
"WHEREFORE, judgment is hereby
rendered, absolving defendants from
the complaint, and dismissing
defendants' counterclaim, without
pronouncement as to costs.
"SO ORDERED."
Her motion for reconsideration of said decision having
been denied, plaintiff interposed the present appeal,
claiming that the trial court erred —
"1. In holding that Criminal Case
No. 19353 of the Court of First
Instance of Manila is res judicata
to the instant case.
"2. In holding that plaintiff-
appellant had not presented
evidence against other
defendants-appellees."
253
At the outset, let it be said that there seems to be a
confusion in the mind of counsel for plaintiff-appellant
as to the basis of the complaint, whether it is for the
purpose to enforcing the primary civil liability of
defendants Chan Lin Po, Remedios Diala, and Lin Koo
(the first two, as parents of defendant Juanito Chan y
Diala, and the last, as the latter's employer) under
Article 2180 of the New Civil Code, or their subsidiary
liability under Article 103 of the Revised Penal Code.
(See paragraph 11 of the amended complaint, page 34
of the Record on Appeal, which speaks of the primary
liability of defendants, and appellant's argument
invoking Article 103 of the Revised Penal Code and the
cases cited in pages 4 and 5 of appellant's brief, all
referring to subsidiary liability.) Be this as it may, the
judgment in the criminal case, except as to the fact of
commission by the accused of the act charged therein,
can not be considered as res judicata constituting a bar
to the present action, whether it be to enforce the
subsidiary or primary liability of defendants who were
not parties to the criminal case. The two cases are
different in nature and purpose, and they affect
different parties. Hence, to the extent that the decision
appealed from holds that the present action is barred by
the adjudication of indemnity in the criminal case, the
same is reversed.
With respect to the second assignment of error, the
appeal has no merit. There is absence of proof that the
accused Juanito Chan y Diala was an employee (as
driver) of defendant Lim Koo at the time of the mishap
on June 11, 1951, or that the latter, as his employer was
at the time engaged in a business or industry. Exhibit A
(decision of the Court of First Instance of Manila in
Crim. Case No. 19353) and Exhibit B (decision of the
Court of Appeals in CA-G.R. No. 14463-R) presented in
evidence by appellant, do not categorically state that
said accused was, at the time of the mishap, an
employee of said defendant. And, as observed by the
trial court in the present case, "no evidence having been
presented against the co-defendants of Juanito Chan y
Diala, not even with respect to the relationship of said
Juanito Chan y Diala with his co-defendants, it is not
seen how this action can prosper." Hence, defendant
Lim Koo can not be held subsidiarily liable to appellant
under Article 103 of the Revised Penal Code. Neither
could he be held primarily responsible to appellant
under paragraph 5, Article 2180 of the New Civil Code..
As already stated, there is no evidence as to the
accused's relationship to said defendant. Furthermore,
it was not shown that the accused, even as employee of
Lim Koo, acted within the scope of his assigned task at
the time of the mishap. Likewise, defendants Chan Lim
Po and Remedios Diala (father and mother of accused)
can not be held answerable under paragraph 2, Article
2180 of said Code, 3 there being no proof that said
accused was, at the time of the mishap, a minor living
in the company of his parents. In fact, there is the
finding in the decision of the Court of Appeals (Exhibit
B) that he (accused) was at the time of the mishap
already a married man. In the circumstances, the
dismissal of the present action by the trial court was
proper.
The case of Buyayao, et al. vs. Itogon Mining Co., Inc.
(G.R. No. L-8277, prom. April 28, 1956) cited as
authority by appellant, is inapplicable. In said case, we
affirmed the decision of the trial court holding Itogon
Mining Co., Inc. subsidiarily liable (as employer of
Alejandro Bentres, convicted of homicide for the killing
of one Dalasdas) in the sum of P4,000.00 under Article
103 of the Revised Penal Code, not only due to the
finding in the judgment of the Court of Appeals that its
employee Bentres "undoubtedly acted in the
performance of a duty or in the lawful exercise of a
right or office" (because he as policeman of the
company shot the deceased when trying to stop and
arrest the latter whom he caught stealing ores from the
mines of said company), but also because said fact
"appear in the Stipulation of Facts", which circumstance
does not obtain in the case at bar.
WHEREFORE, with the modification above indicated,
the judgment of the trial court appealed from is hereby
affirmed, without costs. So ordered.
Bengzon, C.J., Padilla, Concepcion, Reyes, J.B.L.,
Paredes, Dizon and Natividad, JJ., concur.
Bautista Angelo, J., took no part.
Labrador and De Leon, JJ., took no part.
ELCANO, ET AL vs. HILL, ET AL.
G.R. No. L-24803, 26 May 1977, 77 SCRA 98
See supra.
TAMARGO, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 85044, 3 June 1992
FELICIANO, J p:
On 20 October 1982, Adelberto Bundoc, then a minor of
10 years of age, shot Jennifer Tamargo with an air rifle
causing injuries which resulted in her death.
Accordingly, a civil complaint for damages was filed
with the Regional Trial Court, Branch 20, Vigan, Ilocos
Sur, docketed as Civil Case No. 3457-V, by Petitioner
Macario Tamargo, Jennifer's adopting parent, and
petitioner spouses Celso and Aurelia Tamargo,
Jennifer's natural parents, against respondent spouses
Victor and Clara Bundoc, Adelberto's natural parents
with whom he was living at the time of the tragic
incident. In addition to this case for damages, a criminal
information for Homicide through Reckless
Imprudence was filed [Criminal Case No. 1722-V]
against Adelberto Bundoc. Adelberto, however, was
acquitted and exempted from criminal liability on the
ground that he had acted without discernment.
Prior to the incident, or on 10 December 1981, the
spouses Sabas and Felisa Rapisura had filed a petition
to adopt the minor Adelberto Bundoc in Special
Proceedings No. 0373-T before the then Court of First
Instance of Ilocos Sur. This petition for adoption was
granted on 18 November 1982, that is, after Adelberto
had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc,
Adelberto's natural parents, reciting the result of the
foregoing petition for adoption, claimed that not they,
but rather the adopting parents, namely the spouses
Sabas and Felisa Rapisura, were indispensable parties
to the action since parental authority had shifted to the
adopting parents from the moment the successful
petition for adoption was filed.
Petitioners in their Reply contended that since
Adelberto Bundoc was then actually living with his
natural parents, parental authority had not ceased nor
been relinquished by the mere filing and granting of a
petition for adoption.
The trial court on 3 December 1987 dismissed
petitioners' complaint, ruling that respondent natural
parents of Adelberto indeed were not indispensable
parties to the action.
Petitioners received a copy of the trial court's Decision
on 7 December 1987. Within the 15-day reglementary
period, or on 14 December 1987, petitioners filed a
motion for reconsideration followed by a supplemental
motion for reconsideration on 15 January 1988. It
appearing, however, that the motions failed to comply
with Sections 4 and 5 of Rule 15 of the Revised Rules of
Court — that notice of the motion shall be given to all
parties concerned at least three (3) days before the
hearing of said motion; and that said notice shall state
the time and place of hearing — both motions were
denied by the trial court in an Order dated 18 April
1988. On 28 April 1988, petitioners filed a notice of
appeal. In its Order dated 6 June 1988, the trial court
dismissed the notice of appeal, this time ruling that the
notice had been filed beyond the 15-day reglementary
period ending 22 December 1987.
Petitioners went to the Court of Appeals on a petition
for mandamus and certiorari questioning the trial
court's Decision dated 3 December 1987 and the Orders
dated 18 April 1988 and 6 June 1988. The Court of
Appeals dismissed the petition, ruling that petitioners
had lost their right to appeal.
In the present Petition for Review, petitioners once
again contend that respondent spouses Bundoc are the
indispensable parties to the action for damages caused
by the acts of their minor child, Adelberto Bundoc.
Resolution of this Petition hinges on the following
issues: (1) whether or not petitioners, notwithstanding
loss of their right to appeal, may still file the instant
Petition; conversely, whether the Court may still take
cognizance of the case even though petitioners' appeal
254
had been filed out of time; and (2) whether or not the
effects of adoption, insofar as parental authority is
concerned, may be given retroactive effect so as to
make the adopting parents the indispensable parties in
a damage case filed against their adopted child, for acts
committed by the latter when actual custody was yet
lodged with the biological parents.
xxx xxx xxx
2. It is not disputed that Adelberto Bundoc's
voluntary act of shooting Jennifer Tamargo with an air
rifle gave rise to a cause of action on quasi-delict against
him. As Article 2176 of the Civil Code provides:
"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 . . . ."
Upon the other hand, the law imposes civil liability
upon the father and, in case of his death or incapacity,
the mother, for any damages that may be caused by a
minor child who lives with them. Article 2180 of the
Civil Code reads:
"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.
The father and, in case of his death or
incapacity, the mother, are
responsible for the damages caused
by the minor children who live in their
company.
xxx xxx xxx
The responsibility treated of in this
Article shall cease when the person
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damage."
(Emphasis supplied)
This principle of parental liability is a species of what is
frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-
American tort law, where a person is not only liable for
torts committed by himself, but also for torts committed
by others with whom he has a certain relationship and
for whom he is responsible. Thus, parental liability is
made a natural or logical consequence of the duties and
responsibilities of parents — their parental authority —
which includes the instructing, controlling and
disciplining of the child. The basis for the doctrine of
255
vicarious liability was explained by the Court in Cangco
v. Manila Railroad Co. in the following terms:
"With respect to extra-contractual
obligation arising from negligence,
whether of act or omission, it is
competent for the legislature to elect
— and our Legislature has so elected
— to limit such liability to cases in
which the person upon whom such
an obligation is imposed is morally
culpable or, on the contrary, for
reasons of public policy, to extend
that liability, without regard to the
lack of moral culpability, so as to
include responsibility for the
negligence of those persons whose acts or
omissions are imputable, by a legal
fiction, to others who are in a position
to exercise an absolute or limited
control over them. The legislature
which adopted our Civil Code has
elected to limit extra-contractual
liability — with certain well-defined
exceptions — to cases in which moral
culpability can be directly imputed to the
persons to be charged. This moral
responsibility may consist in having
failed to exercise due care in one's
own acts, or in having failed to exercise
due care in the selection and control of
one's agents or servants, or in the control
of persons who, by reasons of their status,
occupy a position of dependency with
respect to the person made liable for their
conduct." (Emphasis supplied)
The civil liability imposed upon parents for the torts of
their minor children living with them, may be seen to
be based upon the parental authority vested by the
Civil Code upon such parents. The civil law assumes
that when an unemancipated child living with its
parents commits a tortious act, the parents were
negligent in the performance of their legal and natural
duty closely to supervise the child who is in their
custody and control. Parental liability is, in other
words, anchored upon parental authority coupled with
presumed parental dereliction in the discharge of the
duties accompanying such authority. The parental
dereliction is, of course, only presumed and the
presumption can be overturned under Article 2180 of
the Civil Code by proof that the parents had exercised
all the diligence of a good father of a family to prevent
the damage.
In the instant case, the shooting of Jennifer by
Adelberto with an air rifle occurred when parental
authority was still lodged in respondent Bundoc
spouses, the natural parents of the minor Adelberto. It
would thus follow that the natural parents who had
then actual custody of the minor Adelberto, are the
indispensable parties to the suit for damages.
The natural parents of Adelberto, however, stoutly
maintain that because a decree of adoption was issued
by the adoption court in favor of the Rapisura spouses,
parental authority was vested in the latter as adopting
parents as of the time of the filing the petition for
adoption that is, before Adelberto had shot Jennifer
with an air rifle. The Bundoc spouses contend that they
were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the
Child and Youth Welfare Code 8 which reads as
follows:
"Article 36. Decree of
Adoption. — If, after considering the
report of the Department of Social
Welfare or duly licensed child
placement agency and the evidence
submitted before it, the court is
satisfied that the petitioner is
qualified to maintain, care for, and
educate the child, that the trial
custody period has been completed,
and that the best interests of the child
will be promoted by the adoption, a
decree of adoption shall be entered, which
shall be effective as of the date the
original petition was filed. The decree
shall state the name by which the child is
thenceforth to be known." (Emphasis
supplied).
The Bundoc spouses further argue that the above
Article 36 should be read in relation to Article 39 of the
same Code:
"Art. 39. Effect of Adoption. — The
adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in
the natural parents, except where the
adopter is the spouse of the surviving
natural parent;"
xxx xxx xxx
(Emphasis supplied)
and urge that their parental authority must be deemed
to have been dissolved as of the time the petition for
adoption was filed.
The Court is not persuaded. As earlier noted, under the
Civil Code, the basis of parental liability for the torts of
a minor child is the relationship existing between the
parents and the minor child living with them and over
whom, the law presumes, the parents exercise
supervision and control. Article 58 of the Child and
Youth Welfare Code, re-enacted this rule:
"Article 58. Torts — Parents
and guardians are responsible for the
damage caused by the child under
their parental authority in accordance
with the Civil Code." (Emphasis
supplied).
Article 221 of the Family Code of the Philippines has
similarly insisted upon the requisite that the child, doer
of the tortious act, shall have been in the actual custody
of the parents sought to be held liable for the ensuing
damage:
"Art. 221. Parents and other
persons exercising parental authority
shall be civilly liable for the injuries
and damages caused by the acts or
omissions of their unemancipated
children living in their company and
under their parental authority subject
to the appropriate defenses provided
by law." (Emphasis supplied)
We do not believe that parental authority is properly
regarded as having been retroactively transferred to
and vested in the adopting parents, the Rapisura
spouses, at the time the air rifle shooting happened. We
do not consider that retroactive effect may be given to
the decree of adoption so as to impose a liability upon
the adopting parents accruing at a time when the
adopting parents had no actual or physical custody
over the adopted child. Retroactive effect may perhaps
be given to the granting of the petition for adoption
where such is essential to permit the accrual of some
benefit or advantage in favor of the adopted child. In
the instant case, however, to hold that parental
authority had been retroactively lodged in the Rapisura
spouses so as to burden them with liability for a
tortious act that they could not have foreseen and
which they could not have prevented (since they were
at the time in the United States and had no physical
custody over the child Adelberto) would be unfair and
unconscionable. Such a result, moreover, would be
inconsistent with the philosophical and policy basis
underlying the doctrine of vicarious liability. Put a little
differently, no presumption of parental dereliction on
the part of the adopting parents, the Rapisura spouses,
could have arisen since Adelberto was not in fact
subject to their control at the time the tort was
committed.
Article 35 of the Child and Youth Welfare Code fortifies
the conclusion reached above. Article 35 provides as
follows:
"Art. 35. Trial Custody. — No
Petition for adoption shall be finally
granted unless and until the adopting
parents are given by the courts a
supervised trial custody period of at
least six months to assess their
256
 adjustment and emotional readiness
for the legal union. During the period
of trial custody, parental authority shall
be vested in the adopting parents."
(Emphasis supplied)
Under the above Article 35, parental authority is
provisionally vested in the adopting parents during the
period of trial custody, i.e., before the issuance of a
decree of adoption, precisely because the adopting
parents are given actual custody of the child during
such trial period. In the instant case, the trial custody
period either had not yet begun or had already been
completed at the time of the air rifle shooting; in any
case, actual custody of Adelberto was then with his
natural parents, not the adopting parents.
Accordingly, we conclude that respondent Bundoc
spouses, Adelberto's natural parents, were
indispensable parties to the suit for damages brought
by petitioners, and that the dismissal by the trial court
of petitioners' complaint, the indispensable parties
being already before the court, constituted grave abuse
of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition for
Review is hereby GRANTED DUE COURSE and the
Decision of the Court of Appeals dated 6 September
1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED
and SET ASIDE. Petitioners' complaint filed before the
trial court is hereby REINSTATED and this case is
REMANDED to that court for further proceedings
consistent with this Decision. Costs against respondent
Bundoc spouses. This Decision is immediately
executory.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur.
SPOUSES LIBI vs. INTERMEDIATE APPELLATE
COURT, ET AL.
G.R. No. 70890. September 18, 1992
REGALADO, J p:
One of the ironic verities of life, it has been said, is that
sorrow is sometimes a touchstone of love. A tragic
illustration is provided by the instant case, wherein two
lovers died while still in the prime of their years, a
bitter episode for those whose lives they have touched.
While we cannot expect to award complete
assuagement to their families through seemingly
prosaic legal verbiage, this disposition should at least
terminate the acrimony and rancor of an extended
judicial contest resulting from the unfortunate
occurrence.
xxx xxx xxx
Synthesized from the findings of the lower courts, it
appears that respondent spouses are the legitimate
257
parents of Julie Ann Gotiong who, at the time of the
deplorable incident which took place and from which
she died on January 14, 1979, was an 18-year old first
year commerce student of the University of San Carlos,
Cebu City; while petitioners are the parents of Wendell
Libi, then a minor between 18 and 19 years of age living
with his aforesaid parents, and who also died in the
same event on the same date.
For more than two (2) years before their deaths, Julie
Ann Gotiong and Wendell Libi were sweethearts until
December, 1978 when Julie Ann broke up her
relationship with Wendell after she supposedly found
him to be sadistic and irresponsible. During the first
and second weeks of January, 1979, Wendell kept
pestering Julie Ann with demands for reconciliation but
the latter persisted in her refusal, prompting the former
to resort to threats against her. In order to avoid him,
Julie Ann stayed in the house of her best friend, Malou
Alfonso, at the corner of Maria Cristina and Juana
Osmeña Streets, Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each
from a single gunshot wound inflicted with the same
firearm, a Smith and Wesson revolver licensed in the
name of petitioner Cresencio Libi, which was recovered
from the scene of the crime inside the residence of
private respondents at the corner of General Maxilom
and D. Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the
circumstances surrounding the death of both minors,
their parents, who are the contending parties herein,
posited their respective theories drawn from their
interpretation of circumstantial evidence, available
reports, documents and evidence of physical facts.
Private respondents, bereaved over the death of their
daughter, submitted that Wendell caused her death by
shooting her with the aforesaid firearm and, thereafter,
turning the gun on himself to commit suicide. On the
other hand, petitioners, puzzled and likewise distressed
over the death of their son, rejected the imputation and
contended that an unknown third party, whom
Wendell may have displeased or antagonized by reason
of his work as a narcotics informer of the Constabulary
Anti-Narcotics Unit (CANU), must have caused
Wendell's death and then shot Julie Ann to eliminate
any witness and thereby avoid identification.
As a result of the tragedy, the parents of Julie Ann filed
Civil Case No. R-17774 in the then Court of First
Instance of Cebu against the parents of Wendell to
recover damages arising from the latter's vicarious
liability under Article 2180 of the Civil Code. After trial,
the court below rendered judgment on October 20, 1980
as follows:
"WHEREFORE, premises duly
considered, judgment is hereby
rendered dismissing plaintiffs'
complaint for insufficiency of the
 evidence. Defendants' counterclaim is
likewise denied for lack of sufficient
merit."
On appeal to respondent court, said judgment of the
lower court dismissing the complaint of therein
plaintiffs-appellants was set aside and another
judgment was rendered against defendants-appellees
who, as petitioners in the present appeal by certiorari,
now submit for resolution the following issues in this
case:
1. Whether or not respondent court correctly reversed
the trial court in accordance with established
decisional laws; and
2. Whether or not Article 2180 of the Civil Code was
correctly interpreted by respondent court to make
petitioners liable for vicarious liability.
In the proceedings before the trial court, Dr. Jesus P.
Cerna, Police Medico-Legal Officer of Cebu, submitted
his findings and opinions on some postulates for
determining whether or not the gunshot wound was
inflicted on Wendell Libi by his own suicidal act.
However, undue emphasis was placed by the lower
court on the absence of gunpowder or tattooing around
the wound at the point of entry of the bullet. It should
be emphasized, however, that this is not the only
circumstance to be taken into account in the
determination of whether it was suicide or not.
It is true that said witness declared that he found no
evidence of contact or close-contact of an explosive
discharge in the entrance wound. However, as pointed
out by private respondents, the body of deceased
Wendell Libi must have been washed at the funeral
parlor, considering the hasty interment thereof a little
after eight (8) hours from the occurrence wherein he
died. Dr. Cerna himself could not categorically state
that the body of Wendell Libi was left untouched at the
funeral parlor before he was able to conduct his
autopsy. It will also be noted that Dr. Cerna was
negligent in not conducting a paraffin test on Wendell
Libi, hence possible evidence of gunpowder residue on
Wendell's hands was forever lost when Wendell was
hastily buried.
More specifically, Dr. Cerna testified that he conducted
an autopsy on the body of Wendell Libi about eight (8)
hours after the incident or, to be exact, eight (8) hours
and twenty (20) minutes based on the record of death;
that when he arrived at the Cosmopolitan Funeral
Homes, the body of the deceased was already on the
autopsy table and in the stage of rigor mortis; and that
said body was not washed, but it was dried. However,
on redirect examination, he admitted that during the 8-
hour interval, he never saw the body nor did he see
whether said body was wiped or washed in the area of
the wound on the head which he examined because the
deceased was inside the morgue. In fact, on cross-
examination, he had earlier admitted that as far as the
entrance of the wound, the trajectory of the bullet and
the exit of the wound are concerned, it is possible that
Wendell Libi shot himself.
He further testified that the muzzle of the gun was not
pressed on the head of the victim and that he found no
burning or singeing of the hair or extensive laceration
on the gunshot wound of entrance which are general
characteristics of contact or near-contact fire. On direct
examination, Dr. Cerna nonetheless made these
clarification:
"Q Is it not a fact that there are
certain guns which are so made
that there would be no black
residue or tattooing that could
result from these guns because
they are what we call clean?
A Yes, sir. I know that there are
what we call smokeless powder.
ATTY. ORTIZ:
Q Yes. So, in cases, therefore, of
guns where the powder is
smokeless, those indications that
you said may not rule out the
possibility that the gun was
closer than 24 inches, is that
correct?
A If the . . . assuming that the gun
used was .. the bullet used was a
smokeless powder.
Q At any rate, doctor, from . . .
disregarding those other matters
that you have noticed, the
singeing, etc., from the trajectory,
based on the trajectory of the
bullet as shown in your own
sketch, is it not a fact that the
gun could have been fired by the
person himself, the victim
himself, Wendell Libi, because it
shows a point of entry a little
above the right ear and point of
exit a little above that, to be very
fair and on your oath?
A As far as the point of entrance is
concerned and as far as the
trajectory of the bullet is
concerned and as far as the angle
or the manner of fire is
concerned, it could have been
fired by the victim."
As shown by the evidence, there were only two used
bullets found at the scene of the crime, each of which
were the bullets that hit Julie Ann Gotiong and Wendell
258
Libi, respectively. Also, the sketch prepared by the
Medico-Legal Division of the National Bureau of
Investigation, shows that there is only one gunshot
wound of entrance located at the right temple of
Wendell Libi. The necropsy report prepared by Dr.
Cerna states:
xxx xxx xxx
"Gunshot wound, ENTRANCE,
ovaloid, 0.5 x 0.4 cm., with contusion
collar widest inferiorly by 0.2 cm.,
edges inverted, oriented upward,
located at the head, temporal region,
right, 2.8 cms. behind and 5.5 cms.
above right external auditory meatus,
directed slightly forward, upward
and to the left, involving skin and
soft tissues, making a punch-in
fracture on the temporal bone, right,
penetrating cranial cavity, lacerating
extensively along its course the brain
tissues, fracturing parietal bone, left,
and finally making an EXIT wound,
irregular, 2.0 x 1.8 cms., edges
(e)verted, parietal region, left, 2.0
cms. behind and 12.9 cms. above left
external auditory meatus.
xxx xxx xxx
"Evidence of contact or close-contact
fire, such as burning around the
gunshot wound of entrance,
gunpowder tatooing (sic), smudging,
singeing of hair, extensive laceration
or bursting of the gunshot wound of
entrance, or separation of the skin
from the underlying tissue, are
absent."
On cross-examination, Dr. Cerna demonstrated his
theory which was made of record, thus:
"Q Now, will you please use
yourself as Wendell Libi, and
following the entrance of the
wound, the trajectory of the
bullet and the exit of the wound,
and measuring yourself 24
inches, will you please indicate
to the Honorable Court how
would it have been possible for
Wendell Libi to kill himself? Will
you please indicate the 24
inches?
WITNESS:
A Actually, sir, the 24 inches is
approximately one arm's length.
259
ATTY. SENINING:
I would like to make of record that
the witness has demonstrated by
extending his right arm almost
straight towards his head."
Private respondents assail the fact that the trial court
gave credence to the testimonies of defendants'
witnesses Lydia Ang and James Enrique Tan, the first
being a resident of an apartment across the street from
the Gotiongs and the second, a resident of the house
adjacent to the Gotiong residence, who declared having
seen a "shadow" of a person at the gate of the Gotiong
house after hearing shots therefrom.
On cross-examination, Lydia Ang testified that the
apartment where she was staying faces the gas station;
that it is the second apartment; that from her window
she can see directly the gate of the Gotiongs and, that
there is a firewall between her apartment and the gas
station. After seeing a man jump from the gate of the
Gotiongs to the rooftop of the Tans, she called the
police station but the telephone lines were busy. Later
on, she talked with James Enrique Tan and told him
that she saw a man leap from the gate towards his
rooftop.
However, James Enrique Tan testified that he saw a
"shadow" on top of the gate of the Gotiongs, but denied
having talked with anyone regarding what he saw. He
explained that he lives in a duplex house with a garden
in front of it; that his house is next to Felipe Gotiong's
house; and he further gave the following answers to
these questions: prcd
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of
the Gotiong's in relation to your
house?
WITNESS:
A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking
from?
WITNESS:
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From Your living room window,
is that correct?
WITNESS:
 A Yes, but not very clear because
the wall is high."
Analyzing the foregoing testimonies, we agree with
respondent court that the same do not inspire credence
as to the reliability and accuracy of the witnesses'
observations, since the visual perceptions of both were
obstructed by high walls in their respective houses in
relation to the house of herein private respondents. On
the other hand, witness Manolo Alfonso, testifying on
rebuttal, attested without contradiction that he and his
sister, Malou Alfonso, were waiting for Julie Ann
Gotiong when they heard her scream; that when
Manolo climbed the fence to see what was going on
inside the Gotiong house, he heard the first shot; and,
not more than five (5) seconds later, he heard another
shot. Consequently, he went down from the fence and
drove to the police station to report the incident.
Manolo's direct and candid testimony establishes and
explains the fact that it was he whom Lydia Ang and
James Enrique Tan saw as the "shadow" of a man at the
gate of the Gotiong house.
We have perforce to reject petitioners' effete and
unsubstantiated pretension that it was another man
who shot Wendell and Julie Ann. It is significant that
the Libi family did not even point to or present any
suspect in the crime nor did they file any case against
any alleged "John Doe." Nor can we sustain the trial
court's dubious theory that Wendell Libi did not die by
his own hand because of the overwhelming evidence —
testimonial, documentary and pictorial — the
confluence of which point to Wendell as the assailant of
Julie Ann, his motive being revenge for her rejection of
his persistent pleas for a reconciliation.
Petitioners' defense that they had exercised the due
diligence of a good father of a family, hence they
should not be civilly liable for the crime committed by
their minor son, is not borne out by the evidence on
record either.
Petitioner Amelita Yap Libi, mother of Wendell,
testified that her husband, Cresencio Libi, owns a gun
which he kept in a safety deposit box inside a drawer in
their bedroom. Each of these petitioners holds a key to
the safety deposit box and Amelita's key is always in
her bag, all of which facts were known to Wendell.
They have never seen their son Wendell taking or using
the gun. She admitted, however, that on that fateful
night the gun was no longer in the safety deposit box.
We, accordingly, cannot but entertain serious doubts
that petitioner spouses had really been exercising the
diligence of a good father of a family by safely locking
the fatal gun away. Wendell could not have gotten hold
thereof unless one of the keys to the safety deposit box
was negligently left lying around or he had free access
to the bag of his mother where the other key was.
The diligence of a good father of a family required by
law in a parent and child relationship consists, to a
large extent, of the instruction and supervision of the
child. Petitioners were gravely remiss in their duties as
parents in not diligently supervising the activities of
their son, despite his minority and immaturity, so much
so that it was only at the time of Wendell's death that
they allegedly discovered that he was a CANU agent
and that Cresencio's gun was missing from the safety
deposit box. Both parents were sadly wanting in their
duty and responsibility in monitoring and knowing the
activities of their children who, for all they know, may
be engaged in dangerous work such as being drug
informers, or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with
a handwritten dedication to Julie Ann at the back
thereof, holding upright what clearly appears as a
revolver and on how or why he was in possession of
that firearm.
In setting aside the judgment of the court a quo and
holding petitioners civilly liable, as explained at the
start of this opinion, respondent court waved aside the
protestations of diligence on the part of petitioners and
had this to say:
". . . It is still the duty of parents to
know the activity of their children
who may be engaged in this
dangerous activity involving the
menace of drugs. Had the
defendants-appellees been diligent in
supervising the activities of their son,
Wendell, and in keeping said gun
from his reach, they could have
prevented Wendell from killing Julie
Ann Gotiong. Therefore, appellants
are liable under Article 2180 of the
Civil Code which provides:
'The father, and in case of his
death or incapacity, the
mother, are responsible for the
damages caused by their minor
children who live in their
company.'
"Having been grossly negligent in
preventing Wendell Libi from having
access to said gun which was
allegedly kept in a safety deposit box,
defendants-appellees are subsidiarily
liable for the natural consequence of
the criminal act of said minor who
was living in their company. This
vicarious liability of herein
defendants-appellees has been
reiterated by the Supreme Court in
many cases, prominent of which is
the case of Fuellas vs. Cadano, et. al. (L-
14409, Oct. 31, 1961, 3 SCRA 361-367),
which held that:
'The subsidiary liability of
parents for damages caused by
260
 their minor children imposed
by Article 2180 of the New Civil
Code covers obligations arising
from both quasi-delicts and
criminal offenses.'
'The subsidiary liability of
parent's arising from the
criminal acts of their minor
children who acted with
discernment is determined
under the provisions of Article
2180, N.C.C. and under Article
101 of the Revised Penal Code,
because to hold that the former
only covers obligations which
arise from quasi-delicts and not
obligations which arise from
criminal offenses, would result
in the absurdity that while for
an act where mere negligence
intervenes the father or mother
may stand subsidiarily liable
for the damages caused by his
or her son, no liability would
attach if the damage is caused
with criminal intent.' (3 SCRA
361-362).
". . . In the instant case, minor son of
herein defendants-appellees, Wendell
Libi somehow got hold of the key to
the drawer where said gun was kept
under lock without defendant-
spouses ever knowing that said gun
had been missing from that safety
box since 1978 when Wendell Libi
had a picture taken wherein he
proudly displayed said gun and
dedicated this picture to his
sweetheart, Julie Ann Gotiong; also
since then, Wendell Libi was said to
have kept said gun in his car, in
keeping up with his supposed role of
a CANU agent . . ."
xxx xxx xxx
"Based on the foregoing discussions
of the assigned errors, this Court
holds that the lower court was not
correct in dismissing herein plaintiffs-
appellants' complaint because as
preponderantly shown by evidence,
defendants-appellees utterly failed to
exercise all the diligence of a good
father of the family in preventing
their minor son from committing this
crime by means of the gun of
defendants-appellees which was
freely accessible to Wendell Libi for
they have not regularly checked
261
whether said gun was still under
lock, but learned that it was missing
from the safety deposit box only after
the crime had been committed."
(Emphases ours.)
We agree with the conclusion of respondent court that
petitioners should be held liable for the civil liability
based on what appears from all indications was a crime
committed by their minor son. We take this
opportunity, however, to digress and discuss its
ratiocination therefor on jurisprudential dicta which we
feel require clarification.
In imposing sanctions for the so-called vicarious
liability of petitioners, respondent court cites Fuellas vs.
Cadano, et al. which supposedly holds that "(t)he
subsidiary liability of parents for damages caused by
their minor children imposed by Article 2180 of the
New Civil Code covers obligations arising from both
quasi-delicts and criminal offenses," followed by an
extended quotation ostensibly from the same case
explaining why under Article 2180 of the Civil Code
and Article 101 of the Revised Penal Code parents
should assume subsidiary liability for damages caused
by their minor children. The quoted passages are set
out two paragraphs back, with pertinent underscoring
for purposes of the discussion hereunder.
Now, we do not have any objection to the doctrinal rule
holding, the parents liable, but the categorization of
their liability as being subsidiary, and not primary, in
nature requires a hard second look considering
previous decisions of this court on the matter which
warrant comparative analyses. Our concern stems from
our readings that if the liability of the parents for crimes
or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of
civil liability on the defense that they acted with the
diligence of a good father of a family to prevent
damages. On the other hand, if such liability imputed to
the parents is considered direct and primary, that
diligence would constitute a valid and substantial
defense.
We believe that the civil liability of parents for quasi-
delicts of their minor children, as contemplated in
Article 2180 of the Civil Code, is primary and not
subsidiary. In fact, if we apply Article 2194 of said code
which provides for solidary liability of joint tortfeasors,
the persons responsible for the act or omission, in this
case the minor and the father and, in case of his death
of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not
subsidiary, hence the last paragraph of Article 2180
provides that "(t) he 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 damages."
We are also persuaded that the liability of the parents
for felonies committed by their minor children is
likewise primary, not subsidiary. Article 101 of the
Revised Penal Code provides:
"ARTICLE 101. Rules regarding
civil liability in certain cases. —
xxx xxx xxx
First. In cases of subdivisions . . . 2,
and 3 of Article 12, the civil liability
for acts committed by . . . a person
under nine years of age, or by one
over nine but under fifteen years of
age, who has acted without
discernment, shall devolve upon
those having such person under their
legal authority or control, unless it
appears that there was no fault or
negligence on their part." (Emphases
supplied.)
Accordingly, just like the rule in Article 2180 of the
Civil Code, under the foregoing provision the civil
liability of the parents for crimes committed by their
minor children is likewise direct and primary, and also
subject to the defense of lack of fault or negligence on
their part, that is, the exercise of the diligence of a good
father of a family.
That in both quasi-delicts and crimes the parents
primarily respond for such damages is buttressed by
the corresponding provisions in both codes that the
minor transgressor shall be answerable or shall respond
with his own property only in the absence or in case of
insolvency of the former. Thus, for civil liability ex
quasi delicto of minors, Article 2182 of the Civil Code
states that "(i)f the minor causing damage has no
parents or guardian, the minor . . . shall be answerable
with his own property in an action against him where a
guardian ad litem shall be appointed." For civil liability
ex delicto of minors, an equivalent provision is found in
the third paragraph of Article 101 of the Revised Penal
Code, to wit:
"Should there be no person having
such . . . minor under his authority,
legal guardianship or control, or if
such person be insolvent, said . . .
minor shall respond with (his) own
property, excepting property exempt
from execution, in accordance with
civil law."
The civil liability of parents for felonies committed by
their minor children contemplated in the aforesaid rule
in Article 101 of the Revised Penal Code in relation to
Article 2180 of the Civil Code has, aside from the
aforecited case of Fuellas, been the subject of a number
of cases adjudicated by this Court, viz.: Exconde vs.
Capuno, et al., Araneta vs. Arreglado, Salen, et al. vs. Balce,
Paleyan, etc., et al. vs. Bangkili, et al., and Elcano, et al, vs.
Hill, et al. Parenthetically, the aforesaid cases were
basically on the issue of the civil liability of parents for
crimes committed by their minor children over 9 but
under 15 years of age, who acted with discernment, and
also of minors 15 years of age or over, since these
situations are not covered by Article 101, Revised Penal
Code. In both instances, this Court held that the issue of
parental civil liability should be resolved in accordance
with the provisions of Article 2180 of the Civil Code for
the reasons well expressed in Salen and adopted in the
cases hereinbefore enumerated that to hold that the
civil liability under Article 2180 would apply only to
quasi-delicts and not to criminal offenses would result in
the absurdity that in an act involving mere negligence
the parents would be liable but not where the damage
is caused with criminal intent. In said cases, however,
there are unfortunate variances resulting in a
regrettable inconsistency in the Court's determination
of whether the liability of the parents, in cases
involving either crimes or quasi-delicts of their minor
children, is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted
of double homicide through reckless imprudence, in a
separate civil action arising from the crime the minor
and his father were held jointly and severally liable for
failure of the latter to prove the diligence of a good
father of a family. The same liability in solidum and,
therefore, primary liability was imposed in a separate
civil action in Araneta on the parents and their 14-year
old son who was found guilty of frustrated homicide,
but on the authority of Article 2194 of the Civil Code
providing for solidary responsibility of two or more
persons who are liable for a quasi-delict.
However, in Salen, the father was declared subsidiarily
liable for damages arising from the conviction of his
son, who was over 15 but less than 18 years of age, by
applying Article 2180 but, this time, disregarding
Article 2194 of the Civil Code. In the present case, as
already explained, the petitioners herein were also held
liable but supposedly in line with Fuellas which
purportedly declared the parents subsidiarily liable for
the civil liability for serious physical injuries committed
by their 13-year old son. On the other hand, in Paleyan,
the mother and her 19-year old son were adjudged
solidarily liable for damages arising from his conviction
for homicide by the application of Article 2180 of the
Civil Code since this is likewise not covered by Article
101 of the Revised Penal Code. Finally, in Elcano,
although the son was acquitted in a homicide charge
due to "lack of intent, coupled with mistake," it was
ruled that while under Article 2180 of the Civil Code
there should be solidary liability for damages, since the
son, "although married, was living with his father and
getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity"
the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code
provides for subsidiary liability only for persons
causing damages under the compulsion of irresistible
force or under the impulse of an uncontrollable fear;
262
innkeepers, tavern-keepers and proprietors of
establishments; employers, teachers, persons and
corporations engaged in industry; and principals,
accomplices and accessories for the unpaid civil liability
of their co-accused in the other classes.
Also, coming back to respondent court's reliance on
Fuellas in its decision in the present case, it is not
exactly accurate to say that Fuellas provided for
subsidiary liability of the parents therein. A careful
scrutiny shows that what respondent court quoted
verbatim in its decision now on appeal in the present
case, and which it attributed to Fuellas, was the
syllabus on the law report of said case which spoke of
"subsidiary" liability. However, such categorization
does not specifically appear in the text of the decision in
Fuellas. In fact, after reviewing therein the cases of
Exconde, Araneta and Salen and the discussions in said
cases of Article 101 of the Revised Penal Code in
relation to Article 2180 of the Civil Code, this Court
concluded its decision in this wise:
"Moreover, the case at bar was
decided by the Court of Appeals on
the basis of evidence submitted
therein by both parties, independent
of the criminal case. And
responsibility for fault or negligence
under Article 2176 upon which the
present action was instituted, is
entirely separate and distinct from
the civil liability arising from fault or
negligence under the Penal Code
(Art. 2177), and having in mind the
reasons behind the law as heretofore
stated, any discussion as to the
minor's criminal responsibility is of
no moment."
Under the foregoing considerations, therefore, we
hereby rule that the parents are and should be held
primarily liable for the civil liability arising from
criminal offenses committed by their minor children
under their legal authority or control, or who live in
their company, unless it is proven that the former acted
with the diligence of a good father of a family to
prevent such damages. That primary liability is
premised on the provisions of Article 101 of the Revised
Penal Code with respect to damages ex delicto caused by
their children 9 years of age or under, or over 9 but
under 15 years of age who acted without discernment;
and, with regard to their children over 9 but under 15
years of age who acted with discernment, or 15 years or
over but under 21 years of age, such primary liability
shall be imposed pursuant to Article 2180 of the Civil
Code.
Under said Article 2180, the enforcement of such
liability shall be effected against the father and, in case
of his death or incapacity, the mother. This was
amplified by the Child and Youth Welfare Code which
provides that the same shall devolve upon the father
263
and, in case of his death or incapacity, upon the mother
or, in case of her death or incapacity, upon the
guardian, but the liability may also be voluntarily
assumed by a relative or family friend of the youthful
offender. However, under the Family Code, this civil
liability is now, without such alternative qualification,
the responsibility of the parents and those who exercise
parental authority over the minor offender. For civil
liability arising from quasi-delicts committed by minors,
the same rules shall apply in accordance with Articles
2180 and 2182 of the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie
Ann Gotiong was caused by a felony or a quasi-delict
committed by Wendell Libi, respondent court did not
err in holding petitioners liable for damages arising
therefrom. Subject to the preceding modifications of the
premises relied upon by it therefor and on the bases of
the legal imperatives herein explained, we conjoin in its
findings that said petitioners failed to duly exercise the
requisite diligentissimi patris familias to prevent such
damages.
ACCORDINGLY, the instant Petition is DENIED and
the assailed judgment of respondent Court of Appeals
is hereby AFFIRMED, with costs against petitioners.
SO ORDERED.
Narvasa, C .J ., Gutierrez, Jr., Cruz, Padilla, Bidin,
Griño-Aquino, Medialdea, Romero, Nocon and
Bellosillo, Jr., JJ ., concur.
Feliciano, J ., is on leave.
Davide, Jr., J ., took no part. I used to be counsel of one
of the parties.
Melo and Campos, Jr., JJ ., took no part.
2. TEACHERS AND HEADS OF ESTABLISHMENTS
MERCADO vs. COURT OF APPEALS, ET AL.
G.R. No. L-14342. May 30, 1960.
LABRADOR, J p:
This is a petition to review a decision of the Court of
Appeals, which condemned petitioner to pay P2,000 as
moral damages and P50 for medical expenses, for a
physical injury caused by the son of petitioner, Augusto
Mercado, on a classmate, Manuel Quisumbing, Jr., both
pupils of the Lourdes Catholic School, Kanlaon,
Quezon City. The case had originated in the Court of
First Instance of Manila, Hon. Bienvenido A. Tan,
presiding, which dismissed the complaint filed by
Manuel Quisumbing, Jr. and his father against
petitioner, father of the above-mentioned Mercado. The
facts found by the Court of Appeals are as follows:
"Plaintiff-appellant Manuel
Quisumbing, Jr. is the son of his co-
plaintiff-appellants Ana Pineda and
Manuel L. Quisumbing, while
Augusto Mercado is the son of
defendant-appellee Ciriaco L.
Mercado, Manuel Quisumbing, Jr.
and Augusto Mercado were
classmates in the Lourdes Catholic
School on Kanlaon, Quezon City. A
'pitogo', which figures prominently in
this case, may be described as an
empty nutshell used by children as a
piggy bank. On February 22, 1956,
Augusto Mercado and Manuel
Quisumbing, Jr. quarrelled over a
'pitogo'. As a result, Augusto
wounded Manuel, Jr. on the right
cheek with a piece of razor.
xxx xxx xxx
"The facts of record clearly show that
it was Augusto Mercado who started
the aggression. Undeniably, the
'pitogo' belonged to Augusto
Mercado but he lent it to Benedicto P.
Lim and in turn Benedicto lent it to
Renato Legaspi. Renato was not
aware that the 'pitogo' belonged to
Augusto, because right after
Benedicto gave it to him, Benedicto
ran away to get a basket ball with
which they could play. Manuel
Quisumbing, Jr. was likewise
unaware that the 'pitogo' belonged to
Augusto. He thought it was the
'pitogo' of Benedicto P. Lim, so that
when Augusto attempted to get the
'pitogo' from Renato, Manuel, Jr. told
him not to do so because Renato was
better at putting the chain into the
holes of the 'pitogo'. However,
Augusto resented Manuel, Jr.'s
remark and he aggressively pushed
the latter. The fight started then.
After Augusto gave successive blows
to Manuel, Jr. and the latter was
clutching his stomach which bore the
brunt of Augusto's anger, Augusto
seeing that Manuel, Jr. was in a
helpless position, cut him on the right
check with a piece of razor.
xxx xxx xxx
"Although the doctor who treated
Manuel Quisumbing, Jr., Antonio B.
Past, testified for plaintiffs-
appellants, he did not declare as to
the amount of fees he collected from
plaintiffs-appellants for the treatment
of Manuel, Jr. The child was not even
hospitalized for the wound. We
believe that the sum of P50.00 is a fair
approximation of the medical
expenses incurred by plaintiffs-
appellants.
xxx xxx xxx
"The damages specified in
paragraphs C and D of the
aforequoted portion of plaintiffs-
appellant's complaint come under the
class of moral damages. The evidence
of record shows that the child
suffered moral damages by reason of
the wound inflicted by Augusto
Mercado. Though such kind of
damages cannot be fully appreciated
in terms of money, we believe that
the sum of P2,000.00 would fully
compensate the child.
"As second cause of action, plaintiffs-
appellants pray for P5,000.00
covering the moral damages they
allegedly suffered due to their son's
being wounded; and the sum of
P3,000.00 as attorney's fees. The facts
of record do not warrant the granting
of moral damages to plaintiffs-
appellants Manuel Quisumbing and
Ana Pineda. 'In law mental anguish is
restricted, as a rule, to such mental
pain or suffering as arises from an
injury or wrong to the person
himself, as distinguished from that
form of mental suffering which is the
accompaniment of sympathy or
sorrow for another's suffering or
which arises from a contemplation of
wrongs committed on the person of
another. Pursuant to the rule stated, a
husband or wife cannot recover for
mental suffering caused by his or her
sympathy for the other's suffering.
Nor can a parent recover for mental
distress and anxiety on account of
physical injury sustained by a child
or for anxiety for the safety of his
child placed in peril by the
negligence of another.' (15 Am. Jur.
597). Plaintiffs-appellants are not
entitled to attorney's fees, it not
appearing that defendant-appellee
had wantonly disregarded their claim
for damages."
In the first, second and third assignments of error,
counsel for petitioner argues that since the incident of
the inflicting of the wound on respondent occurred in a
Catholic School (during recess time), through no fault
of the father, petitioner herein, the teacher or head of
the school should be held responsible instead of the
father. This precise question was brought before this
264
Court in Exconde vs. Capuno and Capuno, 101 Phil., 843,
but we held, through Mr. Justice Bautista:
"We find merit in this claim. It is true
that under the law abovequoted,
'teachers or directors of arts and
trades are liable for any damage
caused by their pupils or apprentices
while they are under their custody',
but this provision only applies to an
institution of arts and trades and not
to any academic educational
institution (Padilla, Civil Law, 1953
Ed., Vol. IV, p. 841; See 12 Manresa,
4th Ed., p. 557)"
The last paragraph of Article 2180 of the Civil Code
upon which petitioner rests his claim that the school
where his son was studying should be made liable, is as
follows:
"ART. 2180. . . .
"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."
It would seem that the clause "so long as they remain in
their custody," contemplates a situation where the pupil
lives and boards with the teacher, such that the control,
direction and influence on the pupil supersedes those of
the parents. In these circumstances the control or
influence over the conduct and actions of the pupil
would pass from the father and mother to the teacher;
and so would the responsibility for the torts of the
pupil. Such a situation does not appear in the case at
bar; the pupils appear to go to school during school
hours and go back to their homes with their parents
after school is over. The situation contemplated in the
last paragraph of Article 2180 does not apply, nor does
paragraph 2 of said article, which makes father or
mother responsible for the damages caused by their
minor children. The claim of petitioner that
responsibility should pass to the school must, therefore,
be held to be without merit.
We next come to the claim of petitioner that the moral
damages fixed at P2,000 are excessive. We note that the
wound caused to respondent was inflicted in the course
of an ordinary or common fight between boys in a
grade school. The Court of Appeals fixed the medical
expenses incurred in treating and curing the wound at
P50. Said court stated that the wound did not even
require hospitalization. Neither was Mercado found
guilty of any offense nor the scar in Quisumbing's face
pronounced to have caused a deformity, unlike the case
of Araneta, et al. vs. Arreglado, et al., 104 Phil., 529; 55 Off.
Gaz. (9) 1561. Petitioner's counsel argues that if death
call for P3,000 to P6,000, certainly the incised would
265
could not cause mental pain and suffering to the tune of
P2,000.
In the decision of the Court of Appeals, said court
pronounces that the child Quisumbing suffered moral
damages "by reason of the wound inflicted by Augusto
Mercado." While moral damages included physical
suffering, which must have been caused to the
wounded boy Quisumbing (Art. 2217, Civil Code), the
decision of the court below does not declare that any of
the cases specified in Article 2219 of the Civil Code in
which moral damages may be recovered, has attended
or occasioned the physical injury. The only possible
circumstance in the case at bar in which moral damages
are recoverable would be if a criminal offense or a quasi-
delict has been committed.
It does not appear that a criminal action for physical
injuries was ever presented. The offender, Augusto
Mercado, was nine years old and it does not appeal that
he had acted with discernment when he inflicted the
physical injuries on Manuel Quisumbing, Jr.
It is possible that the Court of Appeals may have
considered Augusto Mercado responsible for or guilty,
of a quasi-delict causing physical injuries, within the
meaning of paragraph 2 of Article 2219. Even if we
assume that said court considered Mercado guilty of a
quasi-delict when it imposed the moral damages, yet the
facts found by said court indicate that Augusto's
resentment, which motivated the assault, was
occasioned by the fact that Manuel, Jr. had tried to
intervene in or interfere with the attempt of Mercado to
get "his pitogo from Renato." This is, according to the
decision appealed from, the reason why Mercado was
incensed and pushed Quisumbing who, in turn, also
pushed Mercado. It is, therefore, apparent that the
proximate cause of the injury caused to Quisumbing
was Quisumbing's own fault or negligence for having
interfered with Mercado while trying to get the pitogo
from another boy. (Art. 2179, Civil Code.)
After considering all the facts as found by the Court of
Appeals, we find that none of the cases mentioned in
Article 2219 of the Civil Code, which authorizes the
grant of moral damages, was shown to have existed.
Consequently, the grant of moral damages is not
justified.
For the foregoing considerations, the decision appealed
from is hereby reversed and the petitioner is declared
exempt or free from the payment of moral damages.
The award of P50 for medical expenses, however, is
hereby affirmed. Without costs.
Parás, C. J., Bengzon, Montemayor, Barrera and
Gutiérrez David, JJ., concur.
Bautista Angelo and Concepción, JJ., concur in the
result.
CUADRA, ET AL. vs. MONFORT
 G.R. No. L-24101, 30 September 1970.
MAKALINTAL, J p:
This is an action for damages based on quasi-delict,
decided by the Court of First Instance of Negros
Occidental favorably to the plaintiffs and appealed by
the defendant to the Court of Appeals, which certified
the same to us since the facts are not in issue.
Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13,
were classmates in Grade Six at the Mabini Elementary
School in Bacolod City. On July 9, 1962 their teacher
assigned them, together with three other classmates, to
weed the grass in the school premises. While thus
engaged Maria Teresa Monfort found a plastic
headband, an ornamental object commonly worn by
young girls over their hair. Jokingly she said aloud that
she had found an earthworm and, evidently to frighten
the Cuadra girl, tossed the object at her. At that precise
moment the latter turned around to face her friend, and
the object hit her right eye. Smarting from the pain, she
rubbed the injured part and treated it with some
powder. The next day, July 10, the eye became swollen
and it was then that the girl related the incident to her
parents, who thereupon took her to a doctor for
treatment. She underwent surgical operation twice, first
on July 20 and again on August 4, 1962, and stayed in
the hospital for a total of twenty-three days, for all of
which the parents spent the sum of P1,703.75. Despite
the medical efforts, however, Maria Teresa Cuadra
completely lost the sight of her right eye.
In the civil suit subsequently instituted by the parents
in behalf of their minor daughter against Alfonso
Monfort, Maria Teresa Monfort's father, the defendant
was ordered to pay P1,703.00 as actual damages;
P20,000.00 as moral damages; and P2,000.00 as
attorney's fees, plus the costs of the suit.
The legal issue posed in this appeal is the liability of a
parent for an act of his minor child which causes
damage to another under the specific facts related
above and the applicable provisions of the Civil Code,
particularly Articles 2176 and 2180 thereof, which read:
"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."
"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.
The father and, in case of his death or
incapacity, the mother, are
responsible for the damages caused
by the minor children who live in
their company.
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."
The underlying basis of the liability imposed by Article
2176 is the fault or negligence accompanying the act or
the omission, there being no willfulness or intent to
cause damage thereby. When the act or omission is that
of one person for whom another is responsible, the
latter then becomes himself liable under Article 2180, in
the different cases enumerated therein, such as that of
the father or the mother under the circumstances above
quoted. The basis of this vicarious, although primary,
liability is, as in Article 2176, fault or negligence, which
is presumed from that which accompanied the
causative act or omission. The presumption is merely
prima facie and may therefore be rebutted. This is the
clear and logical inference that may be drawn from the
last paragraph of Article 2180, which states "that 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."
Since the fact thus required to be proven is a matter of
defense, the burden of proof necessarily rests on the
defendant. But what is the exact degree of diligence
contemplated, and how does a parent prove it in
connection with a particular act or omission of a minor
child, especially when it takes place in his absence or
outside his immediate company? Obviously there can
be no meticulously calibrated measure applicable; and
when the law simply refers to "all the diligence of a
good father of the family to prevent damage," it implies
a consideration of the attendant circumstances in every
individual case, to determine whether or not by the
exercise of such diligence the damage could have been
prevented.
In the present case there is nothing from which it may
be inferred that the defendant could have prevented the
damage by the observance of due care, or that he was in
any way remiss in the exercise of his parental authority
in failing to foresee such damage, or the act which
caused it. On the contrary, his child was at school,
where it was his duty to send her and where she was,
as he had the right to expect her to be, under the care
and supervision of the teacher. And as far as the act
which caused the injury was concerned, it was an
innocent prank not unusual among children at play and
which no parent, however careful, would have any
266
special reason to anticipate much less guard against.
Nor did it reveal any mischievous propensity, or
indeed any trait in the child's character which would
reflect unfavorably on her upbringing and for which
the blame could be attributed to her parents.
The victim, no doubt, deserves no little commiseration
and sympathy for the tragedy that befell her. But if the
defendant is at all obligated to compensate her
suffering, the obligation has no legal sanction
enforceable in court, but only the moral compulsion of
good conscience.
The decision appealed from is reversed, and the
complaint is dismissed, without pronouncement as to
costs.
Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro,
Teehankee, Villamor and Makasiar, JJ., concur.
Concepcion, C.J., is on leave.
Fernando, J., did not take part.
Barredo, J., dissents in a separate opinion.
Separate Opinions
BARREDO, J., dissenting:
I am afraid I cannot go along with my esteemed
colleagues in holding that the act of appellant's
daughter does not constitute fault within the
contemplation of our law on torts. She was 13 years and
should have known that by jokingly saying "aloud that
she had found an earthworm and, evidently to frighten
the Cuadra girl, tossed the object at her," it was likely
that something would happen to her friend, as in fact,
she was hurt.
As to the liability of appellant as father, I prefer to hold
that there being no evidence that he had properly
advised his daughter to behave properly and not to
play dangerous jokes on her classmate and playmates,
he can be liable under Article 2180 of the Civil Code.
There is nothing in the record to show that he had done
anything at all to even try to minimize the damage
caused upon plaintiff child.
SPOUSES PALISOC vs. BRILLANTES, ET AL.
G.R. No. L-29025, 4 October 1971.
TEEHANKEE, J p:
An appeal in forma pauperis on pure questions of law
from a decision of the Court of First Instance of Manila.
Plaintiffs-appellants as parents of their sixteen-year old
son, Dominador Palisoc, and a student in automotive
mechanics at the Manila Technical Institute, Quezon
Boulevard, Manila, had filed on May 19, 1966, the
action below for damages arising from the death on
267
March 10, 1966 of their son at the hands of a fellow
student, defendant Virgilio L. Daffon, at the laboratory
room of the said Institute.
Defendants, per the trial court's decisions are: "(T)he
defendant Antonio C. Brillantes, at the time when the
incident which gave rise to his action occurred was a
member of the Board of Directors of the institute; the
defendant Teodosio Valenton, the president thereof; the
defendant Santiago M. Quibulue, instructor of the class
to which the deceased belonged; and the defendant
Virgilio L. Daffon, a fellow student of the deceased. At
the beginning the Manila Technical Institute was a
single proprietorship, but lately on August 2, 1962, it
was duly incorporated."
The facts that led to the tragic death of plaintiffs' son
were thus narrated by the trial court: "(T)he deceased
Dominador Palisoc and the defendant Virgilio L.
Daffon were classmates, and on the afternoon of March
10, 1966, between two and three o'clock, they, together
with another classmate Desiderio Cruz were in the
laboratory room located on the ground floor. At that
time the classes were in recess. Desiderio Cruz and
Virgilio L. Daffon were working on a machine while
Dominador Palisoc was merely looking on at them.
Daffon made a remark to the effect that Palisoc was
acting like a foreman. Because of this remark Palisoc
slapped slightly Daffon on the face. Daffon, in
retaliation, gave Palisoc a strong flat blow on the face,
which was followed by other fist blows on the stomach.
Palisoc retreated apparently to avoid the fist blows, but
Daffon followed him and both exchanged blows until
Palisoc stumbled on an engine block which caused him
to fall face downward. Palisoc became pale and fainted.
First aid was administered to him but he was not
revived, so he was immediately taken to a hospital. He
never regained consciousness; finally he died. The
foregoing is the substance of the testimony of Desiderio
Cruz, the lone witness to the incident."
The trial court expressly gave credence to this version
of the incident, as testified to by the lone eyewitness,
Desiderio Cruz, a classmate of the protagonists, as that
of a disinterested witness who "has no motive or reason
to testify one way or another in favor of any party" and
rejected the self-exculpatory version of defendant
Daffon denying that he had inflicted any fist blows on
the deceased.
With the postmortem findings of Dr. Angelo Singian of
the Manila Police Department who performed the
autopsy re "Cause of death: shock due to traumatic
fracture of the ribs (6th and 7th, left, contusion of the
pancreas and stomach with intra-gastric hemorrhage
and slight subarachnoid hemorrhage on the brain," and
his testimony that these internal injuries of the deceased
were caused "probably by strong fist blows," the trial
court found defendant Daffon liable for the quasi delict
under Article 2176 of the Civil Code. It held that "(T)he
act, therefore, of the accused Daffon in giving the
deceased strong fistblows in the stomach which
ruptured his internal organs and caused his death falls
within the purview of this article of the Code."
The trial court, however, absolved from liability the
three other defendants-officials of the Manila Technical
Institute, in this wise:
". . . Their liabilities are based on the
provisions of Article 2180 of the New
Civil Code which reads:
'Art. 2180. . . .
'Lastly, teachers or heads of
establishments of arts and trades
shall be liable for damages caused by
their pupils and students and
apprentices, so long as they remain in
their custody.'
"In the opinion of the Court, this
article of the Code is not applicable to
the case at bar, since this
contemplates the situation where the
control or influence of the teachers
and heads of school establishments
over the conduct and actions by the
pupil supersedes those of the parents.
'CIVIL LAW: DAMAGES ART
2180. NEW CIVIL CODE
CONSTRUED: — The clause 'so
long as they remain in their
custody' contained in Article
2180 of the new civil code
contemplated a situation where
the pupil lives and boards with
the teacher, such that the
control or influence on the
pupil supersedes those of the
parents. In those circumstances
the control or influence over the
conduct and actions of the
pupil as well as the
responsibilities for their sort
would pass from the father and
mother to the teachers. (Ciriaco
L. Mercado, Petitioner, vs. the
Court of Appeals, Manuel
Quisumbing, Jr., et al.,
respondents, G.R. No. L-14862,
May 30, 1960).'
"There is no evidence that the
accused Daffon lived and boarded
with his teacher or the other
defendant officials of the school.
These defendants cannot therefore be
made responsible for the tort of the
defendant Daffon."
xxx xxx xxx
Plaintiffs' appeal raises the principal legal question that
under the factual findings of the trial court, which are
now beyond review, the trial court erred in absolving
the defendants-school officials instead of holding them
jointly and severally liable as tortfeasors, with
defendant Daffon, for the damages awarded them as a
result of their son's death. The Court finds the appeal,
in the main, to be meritorious.
1. The lower court absolved defendants-school
officials on the ground that the provisions of Article
2180, Civil Code, which expressly hold "teachers or
heads of establishments of arts and trades . . . liable for
damages caused by their pupils and students and .
liable for damages caused by their pupils and students
and apprentices, so long as they remain in their
custody," are not applicable to the case at bar, since
"there is no evidence that the accused Daffon [who
inflicted the fatal fistblows] 6 lived and boarded with
his teacher or the other defendants-officials of the
school. These defendants cannot therefore be made
responsible for the tort of the defendant Daffon."
The lower court based its legal conclusion expressly on
the Court's dictum in Mercado vs. Court of Appeals, that "
(I) t would seem that the clause 'so long as they remain
in their custody,' contemplates a situation where the
pupil lives and boards with the teacher, such that the
control, direction and influence on the pupil supersedes
those of the parents. In these circumstances the control
or influence over the conduct and actions of the pupil
would pass from the father and mother to the teacher;
and so would the responsibility for the torts of the
pupil. Such a situation does not appear in the case at
bar; the pupils appear to go to school during school
hours and go back to their homes with their parents
after school is over." This dictum had been made in
rejecting therein petitioner-father's contention that his
minor son's school, Lourdes Catholic School at
Kanlaon, Quezon City [which was not a party to the
case] should be held responsible, rather than him as
father, for the moral damages of P2,000.00 adjudged
against him for the physical injury inflicted by his son
on a classmate. [A cut on the right cheek with a piece of
razor which cost only P50.00 by way of medical
expenses to treat and cure, since the wound left no
scar.] The moral damages award was after all set aside
by the Court on the ground that none of the specific
cases provided in Article 2219, Civil Code, for awarding
moral damages had been established, petitioner's son
being only nine years old and not having been shown
to have "acted with discernment" in inflicting the
injuries on his classmate.
The dictum in Mercado was based in turn on another
dictum in the earlier case of Exconde vs. Capuno, where
the only issue involved as expressly stated in the
decision, was whether the therein defendant-father
could be held civilly liable for damages resulting from a
death caused in a motor vehicle accident driven
unauthorizedly and negligently by his minor son,
(which issue was resolved adversely against the father).
268
Nevertheless, the dictum in such earlier case that "It is
true that under the law above-quoted, 'teachers or
directors of arts and trades are liable for any damage
caused by their pupils or apprentices while they are
under their custody, but this provision only all applies
to an institution of arts and trades and not to any
academic educational institution" was expressly cited
and quoted in Mercado.
2. The case at bar was instituted directly against
the school officials and squarely raises the issue of
liability of teachers and heads of schools under Article
2180, Civil Code, for damages caused by their pupils
and students against fellow students on the school
premises. Here, the parents of the student at fault,
defendant Daffon, are not involved, since Daffon was
already of age at the time of the tragic incident. There is
no question, either, that the school involved is a non-
academic school, the Manila Technical Institute being
admittedly a technical vocational and industrial school.
The Court holds that under the cited codal article,
defendants head and teacher of the Manila Technical
Institute (defendants Valenton and Quibulue,
respectively) are liable jointly and severally for
damages to plaintiffs-parents for the death of the
latter's minor son at the hands of defendant Daffon at
the school's laboratory room. No liability attaches to
defendant Brillantes as a mere member of the school's
board of directors. The school itself cannot be held
similarly liable, since it has not been properly
impleaded as party defendant. While plaintiffs sought
to so implead it, by impleading improperly defendant
Brillantes, its former single proprietor, the lower court
found that it had been incorporated since August 2,
1962, and therefore the school itself, as thus
incorporated, should have been brought in as party
defendant. Plaintiffs failed to do so, notwithstanding
that Brillantes and his co-defendants in their reply to
plaintiffs' request for admission had expressly
manifested and made of record that "defendant
Antonio C. Brillantes is not the registered owner/head
of the 'Manila Technical Institute' which is now a
corporation and is not owned by any individual
person."
3. The rationale of such liability of school heads and
teachers for the tortious acts of their pupils and
students, so long as they remain in their custody, is that
they stand, to a certain extent, as to their pupils and
students, in loco parentis and are called upon to
"exercise reasonable supervision over the conduct of the
child." This is expressly provided for in Articles 349,
350 and 352 of the Civil Code. In the law of torts, the
governing principle is that the protective custody of the
school heads and teachers is mandatorily substituted
for that of the parents, and hence, it becomes their
obligation as well as that of the school itself to provide
proper supervision of the students' activities during the
whole time that they are at attendance in the school,
including recess time, as well as to take the necessary
precautions to protect the students in their custody
269
from dangers and hazards that would reasonably be
anticipated, including injuries that some student
themselves may inflict willfully or through negligence
on their fellow students.
4. As tersely summarized by Mr. Justice J.B.L. Reyes
in his dissenting opinion in Exconde, "the basis of the
presumption of negligence of Art. 1903 [now 2180] is
some culpa in vigilando that the parents, teachers, etc.
are supposed to have incurred in the exercise of their
authority" and "where the parent places the child under
the effective authority of the teacher, the latter, and not
the parent, should be the one answerable for the torts
committed while under his custody, for the very reason
that the parent is not supposed to interfere with the
discipline of the school nor with the authority and
supervision of the teacher while the child is under
instruction " The school itself, likewise, has to respond
for the fault or negligence of its school head and
teachers under the same cited article.
5. The lower court therefore erred in law in absolving
defendants-school officials on the ground that they
could be held liable under Article 2180, Civil Code, only
if the student who inflicted the fatal fistblows on his
classmate and victim "lived and boarded with his
teacher or the other defendants officials of the school."
As stated above, the phrase used in the cited article —
"so long as (the students) remain in their custody"
means the protective and supervisory custody that the
school and its heads and teachers exercise over the
pupils and students for as long as they are at
attendance in the school, including recess time. There is
nothing in the law that requires that for such liability to
attach, the pupil or student who commits the tortious
act must live and board in the school, as erroneously
held by the lower court, and the dicta in Mercado (as
well as in Exconde) on which it relied, must now be
deemed to have been set aside by the present decision.
6. Defendants Valenton and Quibulue as
president and teacher-in-charge of the school must
therefore be held jointly and severally liable for the
quasi-delict of their co-defendant Daffon in the latter's
having caused the death of his classmate, the deceased
Dominador Palisoc. The unfortunate death resulting
from the fight between the protagonists-students could
have been avoided, had said defendants but complied
with their duty of providing adequate supervision over
the activities of the students in the school premises to
protect their students from harm, whether at the hands
of fellow students or other parties. At any rate, the law
holds them liable unless they relieve themselves of such
liability, in compliance with the last paragraph of
Article 2180, Civil Code, by "(proving) that they
observed all the diligence of a good father of a family to
prevent damage." In the light of the factual findings of
the lower court's decision, said defendants failed to
prove such exemption from liability.
xxx xxx xxx
ACCORDINGLY, the judgment appealed from is
modified so as to provide as follows:
1. Sentencing the defendants Virgilio L. Daffon,
Teodosio V. Valenton and Santiago M. Quibulue
jointly and severally to pay plaintiffs as heirs of
the deceased Dominador Palisoc (a) P12,000.00 for
the death of Dominador Palisoc; (b) P3,375.00 for
actual and compensatory expenses; (c) P5,000.00
for moral damages; (d) P10,000.00 for less of
earning power and (e) P2,000 00 for attorney's fee,
plus the costs of this action in both instances; 2.
absolving defendant Antonio C. Brillantes from
the complaint; and 3. dismissing defendants'
counterclaims.
Concepcion, C .J ., Villamor and Makasiar, JJ ., concur.
Dizon, J ., took no part.
Separate Opinions
REYES, J.B.L., J ., concurring:
I concur with the opinion of Mr. Justice Teehankee but
would like to clarify that the judgment of the dissenting
opinion to the effect that the responsibility of teachers
and school officers under Article 2180 should be limited
to pupils who are minors (below the age of majority) is
not in accord with the plain text of the law. Article 2180
of the Civil Code of the Philippines is to the following
effect:
"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.
"The father and, in case of his death
or incapacity the mother, are
responsible for the damages caused
by the minor children who live in
their company.
"Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their
authority and live in their company.
"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.
"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.
"The State is responsible in like
manner when it acts through a
special agent; but not when the
damage has been caused by the
official to whom the task done
properly pertains, in which case what
is provided in article 2176 shall be
applicable.
"Last, 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.
"The responsibility treated of in this
article shall cease when the persons
herein mentioned prove that they
observe all the diligence of a good
father of a family to prevent
damages.
Examination of the article shows that where the
responsibility prescribed therein is limited to illegal acts
during minority, the article expressly so provides, as in
the case of the parents and of the guardians. It is
natural to expect that if the law had intended to
similarly restrict the civil responsibility of the other
categories of persons enumerated in the article, it
would have expressly so stated. The fact that it has not
done so indicates an intent that the liability be not
restricted to the case of persons under age. Further, it is
not without significance that the teachers and heads of
scholarly establishments are not grouped with parents
and guardians but ranged with owners and managers
of enterprises, employers and the state, as to whom no
reason is discernible to imply that they should answer
only for minors.
Giorgi, in his well-known "Teoria de las Obligaciones
en el Derecho Moderno", Volume 5, page 404, No. 272
(Sp. Ed.), after noting the split among commentators on
the point at issue, observes with considerable cogency
that —
"272. Ante esta variedad de
opiniones, ninguna de las cuales se
funda en argumentos merecedores de
seria ponderacion, no es f cil tomar
un partido. Esto no obstante,
debiendo manifestar nuestra opinion,
nos acercamos la de los que no
estiman necesaria la menor edad del
discipulo o del aprendiz; porque si el
aforismo ubi voluit dixit, ubi noluit
tacuity, no es siempre argumento
seguro para interpretar la le, es
270
 infalible cuanto se refiere una misma
disposicion relativa varios casos. Y tal
es el art. 1.153. Lo que haya
establecido importa poco si, elev
ndones los principios de razon,
puede dudarse de la oportunidad de
semajante diferencia; porque la
voluntad cierta del legislador
prevalece in jure condito cualquier
otra consideracion. Por otra parte, si
bien se considera, no puede parecer
extraño o absurdo el suponer que un
discipulo y un aprendiz, aunque
mayores de edad, acepten
voluntariamente la entera vigilancia
de su preceptor mientras dura la
educacion. Ni parece dudoso desde el
momento que los artesanos y los
preceptores deben, al par de los
padres, responder civilmente de los
daños comitidos por sus discipulos,
aun cuando estos estn faltos de
discernimiento."
Similarly, Planiol-Ripert, in their "Droit Civil Pratique,"
Volume VI, No. 635 (Spanish version), say that —
"635. Personas de quin responde.
— Si bien la responsibilidad del
maestro es originalmente una
estensi"n de la de los padres (1), el
art. 1384 no especifica que los
alumnos y aprendices han de ser
menores de edad, por lo que la
presuncion de culpa funcionar aun
cuando sean mayores (2); pero, la
vigilancia no tendra que ser ejercida
en iguales terminos. Aun respecto a
los menores variar segun la edad,
extremo que tendr que tenerse en
cuenta a los fines de apreciar si el
maestro ha podido impedir el acto
nocivo o no.
I submit, finally, that while in the case of parents and
guardians, their authority and supervision over the
children and wards end by law upon the latter reaching
majority age, the authority and custodial supervision
over pupils exist regardless of the age of the latter. A
student over twenty-one, by enrolling and attending a
school, places himself under the custodial supervision
and disciplinary authority of the school authorities,
which is the basis of the latter's correlative
responsibility for his torts, committed while under such
authority. Of course, the teachers' control is not as
plenary as when the student is a minor; but that
circumstance can only affect the degree of the
responsibility but cannot negate the existence thereof. It
is only a factor to be appreciated in determining
whether or not the defendant has exercised due
diligence in endeavoring to prevent the injury, as
prescribed in the last paragraph of Article 2180.
271
MAKALINTAL, J ., dissenting:
I vote to affirm the decision appealed from. I see no
reason to depart from the doctrine laid down by this
Court in Mercado v. Court of Appeals, 108 Phil. 414,
where the clause "so long as they remain in their
custody" used in Article 2180 of the Civil Code was
construed as referring to a "situation where the pupil
lives and boards with the teacher, such that the (latter's)
control, direction and influence on the pupil supersedes
those of the parents." I think it is highly unrealistic and
conducive to unjust results, considering the size of the
enrollment in many of our educational institutions,
academic and non-academic, as well as the temper,
attitudes and often destructive activism of the students,
to hold their teachers and/or the administrative heads
of the schools directly liable for torts committed by
them. When even the school authorities find themselves
besieged, beleaguered and attacked, and unable to
impose the traditional disciplinary measures formerly
recognized as available to them, such as suspension or
outright expulsion of the offending students, it flies in
the face of logic and reality to consider such students,
merely from the fact of enrollment and class
attendance, as "in the custody" of the teachers or school
heads within the meaning of the statute, and to hold the
latter liable unless they can prove that they have
exercised "all the diligence of a good father of the
family to prevent damage." Article 2180, if applied as
appellants construe it, would be bad law. It would
demand responsibility without commensurate
authority, rendering teachers and school heads open to
damage suits for causes beyond their power to control.
Present conditions being what they are, I believe the
restrictive interpretation of the aforesaid provision
enunciated in Mercado should be maintained.
With particular reference to the case at bar, one other
factor constrains me to dissent. The opinion of the
majority states: "Here, the parents of the student at
fault, defendant Daffon, are not involved, since Daffon
was already of age at the time of the tragic incident."
This statement is of course in accordance with Article
2180, which says that "the father and, in case of his
death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their
company." Note that for parental responsibility to arise
the children must be minors who live in their company.
If, as stated also in the opinion of the majority, "the
rationale of (the) liability of school heads and teachers
for the tortious acts of their pupils and students, so long
as they remain in their custody, is that they stand, to a
certain extent, as to their pupils and students, in loco
parentis and are called upon to exercise reasonable
supervision over the conduct of the child," then it
stands to reason that (1) the clause "so long as they
remain in their custody" as used in reference to teachers
and school heads should be equated with the phrase
"who live in their company" as used in reference to
parents; and (2) that just as parents are not responsible
for damages caused by their children who are no longer
minors, so should teachers and school heads be exempt
from liability for the tortious acts of their students in
the same age category. I find no justification, either in
the law itself or in justice and equity, to make a
substitute parent liable where the real parent would be
free from liability.
Zaldivar, Castro and Fernando, JJ ., concur.
AMADORA, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. L-47745. April 15, 1988.
CRUZ, J p:
Like any prospective graduate, Alfredo Amadora was
looking forward to the commencement exercises where
he would ascend the stage and in the presence of his
relatives and friends receive his high school diploma.
These ceremonies were scheduled on April 16, 1972. As
it turned out, though, fate would intervene and deny
him that awaited experience. On April 13, 1972, while
they were in the auditorium of their school, the Colegio
de San Jose-Recoletes, a classmate, Pablito Daffon, fired
a gun that mortally hit Alfredo, ending all his
expectations and his life as well. The victim was only
seventeen years old.
Daffon was convicted of homicide thru reckless
imprudence. Additionally, the herein petitioners, as the
victim's parents, filed a civil action for damages under
Article 2180 of the Civil Code against the Colegio de
San Jose-Recoletos, its rector, the high school principal,
the dean of boys, and the physics teacher, together with
Daffon and two other students, through their respective
parents. The complaint against the students was later
dropped. After trial, the Court of First Instance of Cebu
held the remaining defendants liable to the plaintiffs in
the sum of P294,984.00, representing death
compensation, loss of earning capacity, costs of
litigation, funeral expenses, moral damages, exemplary
damages, and attorney's fees. On appeal to the
respondent court, however, the decision was reversed
and all the defendants were completely absolved.
In its decision, which is now the subject of this petition
for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not
applicable as the Colegio de San Jose-Recoletos was not
a school of arts and trades but an academic institution
of learning. It also held that the students were not in the
custody of the school at the time of the incident as the
semester had already ended, that there was no clear
identification of the fatal gun, and that in any event the
defendants had exercised the necessary diligence in
preventing the injury.
The basic undisputed facts are that Alfredo Amadora
went to the San Jose-Recoletos on April 13, 1972, and
while in its auditorium was shot to death by Pablito
Daffon, a classmate. On the implications and
consequences of these facts, the parties sharply
disagree.
The petitioners contend that their son was in the school
to finish his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of
the private respondents. The private respondents
submit that Alfredo Amadora had gone to the school
only for the purpose of submitting his physics report
and that he was no longer in their custody because the
semester had already ended.
There is also the question of the identity of the gun
used which the petitioners consider important because
of an earlier incident which they claim underscores the
negligence of the school and at least one of the private
respondents. It is not denied by the respondents that on
April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but
later returned it to him without making a report to the
principal or taking any further action. As Gumban was
one of the companions of Daffon when the latter fired
the gun that killed Alfredo, the petitioners contend that
this was the same pistol that had been confiscated from
Gumban and that their son would not have been killed
if it had not been returned by Damaso. The respondents
say, however, that there is no proof that the gun was
the same firearm that killed Alfredo.
Resolution of all these disagreements will depend on
the interpretation of Article 2180 which, as it happens,
is invoked by both parties in support of their conflicting
positions. The pertinent part of this article reads as
follows:
"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."
Three cases have so far been decided by the Court in
connection with the above-quoted provision, to wit:
Exconde v. Capuno, Mercado v. Court of Appeals, and
Palisoc v. Brillantes. These will be briefly reviewed in
this opinion for a better resolution of the case at bar.
In the Exconde Case, Dante Capuno, a student of the
Balintawak Elementary School and a Boy Scout,
attended a Rizal Day parade on instructions of the city
school supervisor. After the parade, the boy boarded a
jeep, took over its wheel and drove it so recklessly that
it turned turtle, resulting in the death of two of its
passengers. Dante was found guilty of double homicide
with reckless imprudence. In the separate civil action
filed against them, his father was held solidarily liable
with him in damages under Article 1903 (now Article
2180) of the Civil Code for the tort committed by the 15-
year old boy.
272
This decision, which was penned by Justice Bautista
Angelo on June 29, 1957, exculpated the school in an
obiter dictum (as it was not a party to the case) on the
ground that it was not a school of arts and trades.
Justice J.B.L. Reyes, with whom Justices Sabino Padilla
and Alex Reyes concurred, dissented, arguing that it
was the school authorities who should be held liable.
Liability under this role, he said, was imposed on (1)
teachers in general; and (2) heads of schools of arts and
trades in particular. The modifying clause "of
establishments of arts and trades" should apply only to
"heads" and not "teachers."
Exconde was reiterated in the Mercado Case, and with an
elaboration. A student cut a classmate with a razor
blade during recess time at the Lourdes Catholic School
in Quezon City, and the parents of the victim sued the
culprit's parents for damages. Through Justice
Labrador, the Court declared in another obiter (as the
school itself had also not been sued) that the school was
not liable because it was not an establishment of arts
and trades. Moreover, the custody requirement had not
been proved as this "contemplates a situation where the
student lives and boards with the teacher, such that the
control, direction and influences on the pupil supersede
those of the parents." Justice J.B.L. Reyes did not take
part but the other members of the court concurred in
this decision promulgated on May 30, 1960.
In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-
year old student was killed by a classmate with fist
blows in the laboratory of the Manila Technical
Institute. Although the wrongdoer — who was already
of age — was not boarding in the school, the head
thereof and the teacher in charge were held solidarily
liable with him. The Court declared through Justice
Teehankee:
"The phrase used in the cited article
— 'so long as (the students) remain in
their custody' — means the protective
and supervisory custody that the
school and its heads and teachers
exercise over the pupils and students
for as long as they are at attendance
in the school, including recess time.
There is nothing in the law that
requires that for such liability to
attach, the pupil or student who
commits the tortious act must live
and board in the school, as
erroneously held by the lower court,
and the dicta in Mercado (as well as
in Exconde) on which it relied, must
now be deemed to have been set
aside by the present decision."
This decision was concurred in by five other members,
including Justice J.B.L. Reyes, who stressed, in answer
to the dissenting opinion, that even students already of
age were covered by the provision since they were
equally in the custody of the school and subject to its
273
discipline. Dissenting with three others, Justice
Makalintal was for retaining the custody interpretation
in Mercado and submitted that the rule should apply
only to torts committed by students not yet of age as
the school would be acting only in loco parentis.
In a footnote, Justice Teehankee said he agreed with
Justice Reyes' dissent in the Exconde Case but added
that "since the school involved at bar is a non-academic
school, the question as to the applicability of the cited
codal provision to academic institutions will have to
await another case wherein it may properly be raised."
This is the case.
Unlike in Exconde and Mercado, the Colegio de San Jose-
Recoletos has been directly impleaded and is sought to
be held liable under Article 2180; and unlike in Palisoc,
it is not a school of arts and trades but an academic
institution of learning. The parties herein have also
directly raised the question of whether or not Article
2180 covers even establishments which are technically
not schools of arts and trades, and, if so, when the
offending student is supposed to be "in its custody."
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 singulis,
"teachers" should apply to the words "pupils and
students" and "heads of establishments of arts and
trades" to the word "apprentices."
The Court thus conforms to the dissenting opinion
expressed by Justice J.B.L. Reyes in Exconde where he
said in part:
"I can see no sound reason for
limiting Art. 1903 of the Old Civil
Code to teachers of arts and trades
and not to academic ones. What
substantial difference is there
between them insofar as concerns the
proper supervision and vigilance
over their pupils? It cannot be
seriously contended that an academic
teacher is exempt from the duty of
watching that his pupils do not
commit a tort to the detriment of
third persons, so long as they are in a
position to exercise authority and
 supervision over the pupil. In my
opinion, in the phrase 'teachers or
heads of establishments of arts and
trades' used in Art. 1903 of the old
Civil Code, the words 'arts and
trades' does not qualify 'teachers' but
only 'heads of establishments.' The
phrase is only an updated version of
the equivalent terms `preceptores y
artesanos' used in the Italian and
French Civil Codes.
"If, as conceded by all commentators,
the basis of the presumption of
negligence of Art. 1903 in some culpa
in vigilando that the parents,
teachers, etc. are supposed to have
incurred in the exercise of their
authority, it would seem clear that
where the parent places the child
under the effective authority of the
teacher, the latter, and not the parent,
should be the one answerable for the
torts committed while under his
custody, for the very reason that the
parent is not supposed to interfere
with the discipline of the school nor
with the authority and supervision of
the teacher while the child is under
instruction. And if there is no
authority, there can be no
responsibility.'
There is really no substantial distinction between the
academic and the non-academic schools insofar as torts
committed by their students are concerned. The same
vigilance is expected from the teacher over the students
under his control and supervision, whatever the nature
of the school where he is teaching. The suggestion in
the Exconde and Mercado Cases is that the provision
would make the teacher or even the head of the school
of arts and trades liable for an injury caused by any
student in its custody but if that same tort were
committed in an academic school, no liability would
attach to the teacher or the school head. All other
circumstances being the same, the teacher or the head
of the academic school would be absolved whereas the
teacher and the head of the non-academic school would
be held liable, and simply because the latter is a school
of arts and trades.
The Court cannot see why different degrees of vigilance
should be exercised by the school authorities on the
basis only of the nature of their respective schools.
There does not seem to be any plausible reason for
relaxing that vigilance simply because the school is
academic in nature and for increasing such vigilance
where the school is non-academic. Notably, the injury
subject of liability is caused by the student and not by
the school itself nor is it a result of the operations of the
school or its equipment. The injury contemplated may
be caused by any student regardless of the school
where he is registered. The teacher certainly should not
be able to excuse himself by simply showing that he is
teaching in an academic school where, on the other
hand, the head would be held liable if the school were
non-academic.
These questions, though, may be asked: If the teacher of
the academic school is to be held answerable for the
torts committed by his students, why is it the head of
the school only who is held liable where the injury is
caused in a school of arts and trades? And in the case of
the academic or non-technical school, why not apply
the rule also to the head thereof instead of imposing the
liability only on the teacher?
The reason for the disparity can be traced to the fact
that historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head
of the academic school. The old schools of arts and
trades were engaged in the training of artisans
apprenticed to their master who personally and directly
instructed them on the technique and secrets of their
craft. The head of the school of arts and trades was such
a master and so was personally involved in the task of
teaching his students, who usually even boarded with
him and so came under his constant control,
supervision and influence. By contrast, the head of the
academic school was not as involved with his students
and exercised only administrative duties over the
teachers who were the persons directly dealing with the
students. The head of the academic school had then (as
now) only a vicarious relationship with the students.
Consequently, while he could not be directly faulted for
the acts of the students, the head of the school of arts
and trades, because of his closer ties with them, could
be so blamed.
It is conceded that the distinction no longer obtains at
present in view of the expansion of the schools of arts
and trades, the consequent increase in their enrollment,
and the corresponding diminution of the direct and
personal contact of their heads with the students.
Article 2180, however, remains unchanged. In its
present state, the provision must be interpreted by the
Court according to its clear and original mandate until
the legislature, taking into account the changes in the
situation subject to be regulated, sees fit to enact the
necessary amendment.
The other matter to be resolved is the duration of the
responsibility of the teacher or the head of the school of
arts and trades over the students. Is such responsibility
co-extensive with the period when the student is
actually undergoing studies during the school term, as
contended by the respondents and impliedly admitted
by the petitioners themselves?
From a reading of the provision under examination, it is
clear that while the custody requirement, to repeat
Palisoc v. Brillantes, does not mean that the student must
be boarding with the school authorities, it does signify
that the student should be within the control and under
274
the influence of the school authorities at the time of the
occurrence of the injury. This does not necessarily mean
that such, custody be co-terminous with the semester,
beginning with the start of classes and ending upon the
close thereof, and excluding the time before or after
such period, such as the period of registration, and in
the case of graduating students, the period before the
commencement exercises. In the view of the Court, the
student is in the custody of the school authorities as
long as he is under the control and influence of the
school and within its premises, whether the semester
has not yet begun or has already ended.
It is too tenuous to argue that the student comes under
the discipline of the school only upon the start of
classes notwithstanding that before that day he has
already registered and thus placed himself under its
rules. Neither should such discipline be deemed ended
upon the last day of classes notwithstanding that there
may still be certain requisites to be satisfied for
completion of the course, such as submission of reports,
term papers, clearances and the like. During such
periods, the student is still subject to the disciplinary
authority of the school and cannot consider himself
released altogether from observance of its rules.
As long as it can be shown that the student is in the
school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right,
and even in the enjoyment of a legitimate student right,
and even in the enjoyment of a legitimate student
privilege, the responsibility of the school authorities
over the student continues. Indeed, even if the student
should be doing nothing more than relaxing in the
campus in the company of his classmates and friends
and enjoying the ambience and atmosphere of the
school, he is still within the custody and subject to the
discipline of the school authorities under the provisions
of Article 2180.
During all these occasions, it is obviously the teacher-
in-charge who must answer for his students' torts, in
practically the same way that the parents are
responsible for the child when he is in their custody.
The teacher-in-charge is the one designated by the
dean, principal, or other administrative superior to
exercise supervision over the pupils in the specific
classes or sections to which they are assigned. It is not
necessary that at the time of the injury, the teacher be
physically present and in a position to prevent it.
Custody does not connote immediate and actual
physical control but refers more to the influence exerted
on the child and the discipline instilled in him as a
result of such influence. Thus, for the injuries caused by
the student, the teacher and not the parent shall be held
responsible if the tort was committed within the
premises of the school at any time when its authority
could be validly exercised over him.
In any event, it should be noted that the liability
imposed by this article is supposed to fall directly on
the teacher or the head of the school of arts and trades
275
and not on the school itself. If at all, the school,
whatever its nature, may be held to answer for the acts
of its teachers or even of the head thereof under the
general principle of respondeat superior, but then it may
exculpate itself from liability by proof that it had
exercised the diligence of a bonus paterfamilias.
Such defense is, of course, also available to the teacher
or the head of the school of arts and trades directly held
to answer for the tort committed by the student. As
long as the defendant can show that he had taken the
necessary precautions to prevent the injury complained
of, he can exonerate himself from the liability imposed
by Article 2180, which also states that:
"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
damages."
In this connection, it should be observed that the
teacher will be held liable not only when he is acting in
loco parentis for the law does not require that the
offending student be of minority age. Unlike the parent,
who will be liable only if his child is still a minor, the
teacher is held answerable by the law for the act of the
student under him regardless of the student's age.
Thus, in the Palisoc Case, liability attached to the
teacher and the head of the technical school although
the wrongdoer was already of age. In this sense, Article
2180 treats the parent more favorably than the teacher.
The Court is not unmindful of the apprehensions
expressed by Justice Makalintal in his dissenting
opinion in Palisoc that the school may be unduly
exposed to liability under this article in view of the
increasing activism among the students that is likely to
cause violence and resulting injuries in the school
premises. That is a valid fear, to be sure. Nevertheless,
it should be repeated that, under the present ruling, it is
not the school that will be held directly liable.
Moreover, the defense of due diligence is available to it
in case it is sought to be held answerable as principal
for the acts or omission of its head or the teacher in its
employ.
The school can show that it exercised proper measures
in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of
the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all
cases now, in fact, these measures are effected through
the assistance of an adequate security force to help the
teacher physically enforce those rules upon the
students. This should bolster the claim of the school
that it has taken adequate steps to prevent any injury
that may be committed by its students.
A fortiori, the teacher himself may invoke this defense
as it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as
long as they are in the school premises and presumably
under his influence. In this respect, the Court is
disposed not to expect from the teacher the same
measure of responsibility imposed on the parent for
their influence over the child is not equal in degree.
Obviously, the parent can expect more obedience from
the child because the latter's dependence on him is
greater than on the teacher. It need not be stressed that
such dependence includes the child's support and
sustenance whereas submission to the teacher's
influence, besides being co-terminous with the period
of custody, is usually enforced only because of the
students' desire to pass the course. The parent can
instill more lasting discipline on the child than the
teacher and so should be held to a greater
accountability than the teacher for the tort committed
by the child.
And if it is also considered that under the article in
question, the teacher or the head of the school of arts
and trades is responsible for the damage caused by the
student or apprentice even if he is already of age — and
therefore less tractable than the minor — then there
should all the more be justification to require from the
school authorities less accountability as long as they can
prove reasonable diligence in preventing the injury.
After all, if the parent himself is no longer liable for the
student's acts because he has reached majority age and
so is no longer under the former's control, there is then
all the more reason for leniency in assessing the
teacher's responsibility for the acts of the student.
Applying the foregoing considerations, the Court has
arrived at the following conclusions:
1. At the time Alfredo Amadora was fatally shot, he
was still in the custody of the authorities of Colegio de
San Jose-Recoletos notwithstanding that the fourth year
classes had formally ended. It was immaterial if he was
in the school auditorium to finish his physics
experiment or merely to submit his physics report for
what is important is that he was there for a legitimate
purpose. As previously observed, even the mere
savoring of the company of his friends in the premises
of the school is a legitimate purpose that would have
also brought him in the custody of the school
authorities.
2. The rector, the high school principal and the
dean of boys cannot be held liable because none of
them was the teacher-in-charge as previously defined.
Each of them was exercising only a general authority
over the student body and not the direct control and
influence exerted by the teacher placed in charge of
particular classes or sections and thus immediately
involved in its discipline. The evidence of the parties
does not disclose who the teacher-in-charge of the
offending student was. The mere fact that Alfredo
Amadora had gone to school that day in connection
with his physics report did not necessarily make the
physics teacher, respondent Celestino Dicon, the
teacher-in-charge of Alfredo's killer.
3. At any rate, assuming that he was the teacher-in-
charge, there is no showing that Dicon was negligent in
enforcing discipline upon Daffon or that he had waived
observance of the rules and regulations of the school or
condoned their non-observance. His absence when the
tragedy happened cannot be considered against him
because he was not supposed or required to report to
school on that day. And while it is true that the
offending student was still in the custody of the
teacher-in-charge even if the latter was physically
absent when the tort was committed, it has not been
established that it was caused by his laxness in
enforcing discipline upon the student. On the contrary,
the private respondents have proved that they had
exercised due diligence, through the enforcement of the
school regulations, in maintaining that discipline.
4. In the absence of a teacher-in-charge, it is probably
the dean of boys who should be held liable, especially
in view of the unrefuted evidence that he had earlier
confiscated an unlicensed gun from one of the students
and returned the same later to him without taking
disciplinary action or reporting the matter to higher
authorities. While this was clearly negligence on his
part, for which he deserves sanctions from the school, it
does not necessarily link him to the shooting of
Amador as it has not been shown that the confiscated
and returned pistol was the gun that killed the
petitioners' son.
5. Finally, as previously observed, the Colegio de San
Jose-Recoletos cannot be held directly liable under the
article because only the teacher or the head of the
school of arts and trades is made responsible for the
damage caused by the student or apprentice. Neither
can it be held to answer for the tort committed by any
of the other private respondents for none of them has
been found to have been charged with the custody of
the offending student or has been remiss in the
discharge of his duties in connection with such custody.
In sum, the Court finds under the facts as disclosed by
the record and in the light of the principles herein
announced that none of the respondents is liable for the
injury inflicted by Pablito Daffon on Alfredo Amadora
that resulted in the latter's death at the auditorium of
the Colegio de San Jose-Recoletos on April 13, 1972.
While we deeply sympathize with the petitioners over
the loss of their son under the tragic circumstances here
related, we nevertheless are unable to extend them the
material relief they seek, as a balm to their grief, under
the law they have invoked.
WHEREFORE, the petition is DENIED, without any
pronouncement as to costs. It is so ordered.
Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin,
Sarmiento, Cortes and Griño-Aquino, JJ., concur.
276
Teehankee, C.J., did not participate in deliberations.
Fernan and Padilla, JJ., took no part, formerly counsel
for Colegio de San Jose-Recoletos.
Separate Opinions
MELENCIO-HERRERA, J., concurring and dissenting:
I concur, except with respect to the restricted meaning
given the term "teacher" in Article 2180 of the Civil
Code as "teacher-in-charge." This would limit liability
to occasions where there are classes under the
immediate charge of a teacher, which does not seem to
be the intendment of the law.
As I understand it, the philosophy of the law is that
whoever stands in loco parentis will have the same
duties and obligations as parents whenever in such a
standing. Those persons are mandatorily held liable for
the tortious acts of pupils and students so long as the
latter remain in their custody, meaning their protective
and supervisory custody.
Thus, Article 349 of the Civil Code enumerates the
persons who stand in loco parentis and thereby exercise
substitute parental authority:
"Art. 349. The following
persons shall exercise substitute
parental authority:
xxx xxx xxx
(2) Teachers and professors;
xxx xxx xxx
(4) Directors of trade
establishments, with regard to
apprentices;"
Article 352 of the Civil Code further provides:
"Art. 352. The relations
between teacher and pupil, professor
and student, are fixed by government
regulations and those of each school
or institution. . . . "
But even such rules and regulations as may be fixed can
not contravene the concept of substitute parental
authority.
The rationale of liability of school heads and teachers
for the tortious acts of their pupils was explained in
Palisoc vs. Brillantes (41 SCRA 548), thus:
"The protective custody of the school
heads and teachers is mandatorily
substituted for that of the parents,
and hence, it becomes their obligation
277
as well as that of the school itself to
provide proper supervision of the
students' activities during the whole
time that they are at attendance in the
school, including recess time, as well
as to take the necessary precautions
to protect the students in their
custody from dangers and hazards
that would reasonably be anticipated,
including injuries that some students
themselves may inflict wilfully or
through negligence on their fellow
students. (Emphasis supplied)
Of course, as provided for in the same Article 2180, the
responsibility treated of shall cease when the persons
mentioned prove that they observed all the diligence of
a good father of a family to prevent damage.
And while a school is, admittedly, not directly liable
since Article 2180 speaks only of teachers and schools
heads, yet, by virtue of the same provision, the school,
as their employer, may be held liable for the failure of
its teachers or school heads to perform their mandatory
legal duties as substitute parents (Sangco, Philippine
Law on Torts & Damages, 1978 ed., p. 201). Again, the
school may exculpate itself from liability by proving
that it had exercised the diligence of a good father of
the family.
"Art. 2180. ...
"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.
xxx xxx xxx
Parenthetically, from the enumeration in Article 349 of
the Civil Code, supra, it is apparent that the Code
Commission had already segregated the classification
of "teachers and professors" vis-a-vis their pupils, from
"directors of trade establishments, with regard to their
apprentices."
GUTIERREZ, JR., J., concurring:
I concur in the Court's opinion so carefully analyzed
and crafted by Justice Isagani A. Cruz. However, I
would like to stress the need for a major amendment to,
if not a complete scrapping of, Article 2180 of the Civil
Code insofar as it refers to teachers or heads of
establishments of arts and trades in relation to pupils
and students or apprentices. The seventh paragraph of
Art. 2180 is a relic of the past and contemplates a
situation long gone and out of date. In a Palisoc v.
Brillantes (41 SCRA 548) situation, it is bound to result
in mischief and injustice.
First, we no longer have masters and apprentices toiling
in schools of arts and trades. Students in "technological
colleges and universities are no different from students
in liberal arts or professional schools. Apprentices now
work in regular shops and factories and their
relationship to the employer is covered by laws
governing the employment relationship and not by
laws governing the teacher - student relationship.
Second, except for kindergarten, elementary, and
perhaps early high school students, teachers are often
no longer objects of veneration who are given the
respect due to substitute parents. Many students in
their late teens or early adult years view some teachers
as part of a bourgeois or reactionary group whose
advice on behaviour, deportment, and other non-
academic matters is not only resented but actively
rejected. It seems most unfair to hold teachers liable on
a presumption juris tantum of negligence for acts of
students even under circumstances where strictly
speaking there could be no in loco parentis relationship.
Why do teachers have to prove the contrary of
negligence to be freed from solidary liability for the acts
of bomb-throwing or pistol packing students who
would just as soon hurt them as they would other
members of the so-called establishment.
The ordinary rules on quasi-delicts should apply to
teachers and schools of whatever nature insofar as
grown up students are concerned. The provision of Art.
2180 of the Civil Code involved in this case has outlived
its purpose. The Court cannot make law. It can only
apply the law with its imperfections. However, the
Court can suggest that such a law should be amended
or repealed.
YLARDE, ET AL. vs. AQUINO, ET AL.
G.R. No. L-33722, 29 July 1988
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, Fransico 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:
xxx xxx xxx
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.
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.
278
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."
The issue to be resolved is whether or not under the
cited provisions, both private respondents can be held
liable for damages.
As regards the principal, We hold that he cannot be
made responsible for the death of the child Ylarde, he
being the head of an academic school and not a school
of arts and trades. This is in line with Our ruling in
Amadora vs. Court of Appeals, 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
279
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.
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. 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.
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 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. 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.
SALVOSA, ET AL. vs. THEINTERMEDIATE
APPELLATE COURT, ET AL.
G.R. No. 70458, 5 October 1988.
PADILLA, J p:
In this petition for review on certiorari, petitioners seek
the reversal of the decision of respondent Intermediate
Appellate Court, dated 7 December 1984, in AC-G.R.
No. CV 69876, in so far as it affirmed the decision of
the Court of First Instance of Tarlac (hereinafter
referred to as the Trial Court), which held, among
others, petitioners solidarily liable with Jimmy B. Abon,
under Art. 2180 of the Civil Code.
The relevant facts, as found by the Trial Court and
adopted by reference by the respondent Court, are:
". . . Baguio Colleges Foundation
(BCF, hereafter) is an academic
institution. . . . [However], it is also
an institution of arts and trade. It has
so advertised itself, as its own
280
 evidence shows. Its brochure (Exh. 2)
shows that BCF has a full-fledged
technical-vocational department
offering Communication, Broadcast
and Telytype Technician courses as
well as Electronics Serviceman and
Automotive Mechanics courses . . .
these courses divest BCF of the
nature or character of being purely or
exclusively an academic institution."
Within the premises of the BCF is an ROTC Unit, the
Baguio Colleges Foundation Reserve Officers Training
Corps (ROTC) Unit, which is under the full control of
the Armed Forces of the Philippines. The ROTC Unit,
by way of accommodation to the Armed Forces of the
Philippines (AFP), pursuant to Department Order No.
14, Series of 1975 of the Department of Education and
Culture, is provided by the BCF an office and an
armory located at the basement of its main building.
The Baguio Colleges Foundation ROTC Unit had
Jimmy B. Abon as its duly appointed armorer. As
armorer of the ROTC Unit, Jimmy B. Abon received his
appointment from the AFP. Not being an employee of
the BCF, he also received his salary from the AFP, as
well as orders from Captain Roberto C. Ungos, the
Commandant of the Baguio Colleges Foundation ROTC
Unit, concurrent Commandant of other ROTC units in
Baguio and an employee (officer) of the AFP. Jimmy B.
Abon was also a commerce student of the BCF.
On 3 March 1977, at around 8:00 p.m., in the parking
space of BCF, Jimmy B. Abon shot Napoleon Castro a
student of the University of Baguio with an unlicensed
firearm which the former took from the armory of the
ROTC Unit of the BCF. As a result, Napoleon Castro
died and Jimmy B. Abon was prosecuted for, and
convicted of the crime of Homicide by Military
Commission No. 30, AFP.
Subsequently, the heirs of Napoleon Castro sued for
damages, impleading Jimmy B. Abon, Roberto C.
Ungos (ROTC Commandant), Benjamin Salvosa
(President and Chairman of the Board of BCF), Jesus
Salvosa (Executive Vice President of BCF), Libertad D.
Quetolio (Dean of the College of Education and
Executive Trustee of BCF) and the Baguio Colleges
Foundation, Inc. as party defendants. After hearing, the
Trial Court rendered a decision, (1) sentencing
defendants Jimmy B. Abon, Benjamin Salvosa and
Baguio Colleges Foundation, Inc., jointly and severally,
to pay private respondents, as heirs of Napoleon
Castro: a) P12,000.00 for the death of Napoleon Castro,
(b) P316,000.00 as indemnity for the loss of earning
capacity of the deceased, (c) P5,000.00 as moral
damages, (d) P6,000.00 as actual damages, and (e)
P5,000.00 as attorney's fees, plus costs; (2) absolving the
other defendants; and (3) dismissing the defendants'
counterclaim for lack of merit. 13 On appeal by
petitioners, the respondent Court affirmed with
modification the decision of the Trial Court. The
281
modification consisted in reducing the award for loss of
earning capacity of the deceased from P316,000.00 to
P30,000.00 by way of temperate damages, and
increasing the indemnity for the death of Napoleon
Castro from P12,000.00 to P30,000.00.
Hence, this petition.
The central issue in this case is whether or not
petitioners can be held solidarily liable with Jimmy B.
Abon for damages under Article 2180 of the Civil Code,
as a consequence of the tortious act of Jimmy B. Abon.
Under the penultimate paragraph of Art. 2180 of the
Civil Code, teachers or heads of establishments of arts
and trades are liable for "damages caused by their
pupils and students or apprentices, so long as they
remain in their custody." The rationale of such liability
is that so long as the student remains in the custody of a
teacher, the latter "stands, to a certain extent, in loco
parentis [as to the student] and [is] called upon to
exercise reasonable supervision over the conduct of the
[student]." Likewise, "the phrase used in [Art. 2180] —
'so long as (the students) remain in their custody'
means the protective and supervisory custody that the
school and its heads and teachers exercise over the
pupils and students for as long as they are at
attendance in the school, including recess time.
In the case at bar, in holding that Jimmy B. Abon was
still in the protective and supervisory custody of the
Baguio Colleges Foundation when he shot Napoleon
Castro, the respondent Court ruled that:
"it is true that Abon was not
attending any class or school function
at the time of the shooting incident,
which was at about 8 o'clock in the
evening; but considering that Abon
was employed as an armorer and
property custodian of the BCF ROTC
unit, he must have been attending
night classes and therefore that hour
in the evening was just about
dismissal time for him or soon
thereafter. The time interval is safely
within the 'recess time' that the trial
court spoke of and envisioned by the
Palisoc case, supra." (Emphasis
supplied)
In line with the case of Palisoc, a student not "at
attendance in the school" cannot be in "recess" thereat.
A "recess," as the concept is embraced in the phrase "at
attendance in the school," contemplates a situation of
temporary adjournment of school activities where the
student still remains within call of his mentor and is not
permitted to leave the school premises, or the area
within which the school activity is conducted. Recess by
its nature does not include dismissal. Likewise, the
mere fact of being enrolled or being in the premises of a
school without more does not constitute "attending
school" or being in the "protective and supervisory
custody" of the school, as contemplated in the law.
Upon the foregoing considerations, we hold that Jimmy
B. Abon cannot be considered to have been "at
attendance in the school," or in the custody of BCF,
when he shot Napoleon Castro. Logically, therefore,
petitioners cannot under Art. 2180 of the Civil Code be
held solidarily liable with Jimmy B. Abon for damages
resulting from his acts.
Besides, the record shows that before the shooting
incident, Roberto B. Ungos ROTC Unit Commandant,
AFP, had instructed Jimmy B. Abon "not to leave the
office and [to keep the armory] well guarded. Apart
from negating a finding that Jimmy B. Abon was under
the custody of the school when he committed the act for
which the petitioners are sought to be held liable, this
circumstance shows that Jimmy B. Abon was supposed
to be working in the armory with definite instructions
from his superior, the ROTC Commandant, when he
shot Napoleon Castro.
Petitioners also raise the issue that, under Art. 2180 of
the Civil Code, a school which offers both academic
and technical vocational courses cannot be held liable
for a tort committed by a student enrolled only in its
academic program; however, considering that Jimmy B.
Abon was not in the custody of BCF when he shot
Napoleon Castro, the Court deems it unnecessary to
pass upon such other issue.
WHEREFORE, the decision appealed from is hereby
REVERSED in so far as it holds petitioners solidarily
liable with Jimmy B. Abon for his tortious act in the
killing of Napoleon Castro. No costs.
SO ORDERED.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ.,
concur.
PHILIPPINE SCHOOL OF BUSINESS
ADMINISTRATION, ET AL. vs.
COURT OF APPEALS
G.R. No. 84698, 4 February 1992, 205 SCRA 729
PADILLA, J p:
A stabbing incident on 30 August 1985 which caused
the death of Carlitos Bautista while on the second-floor
premises of the Philippine School of Business
Administration (PSBA) prompted the parents of the
deceased to file suit in the Regional Trial Court of
Manila (Branch 47) presided over by Judge (now Court
of Appeals justice) Regina Ordoñez-Benitez, for
damages against the said PSBA and its corporate
officers. At the time of his death, Carlitos was enrolled
in the third year commerce course at the PSBA. It was
established that his assailants were not members of the
schools academic community but were elements from
outside the school.
Specifically, the suit impleaded the PSBA and the
following school authorities: Juan D. Lim (President),
Benjamin P. Paulino (Vice-President), Antonio M.
Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief
of Security) and a Lt. M. Soriano (Assistant Chief of
Security). Substantially, the plaintiffs (now private
respondents) sought to adjudge them liable for the
victim's untimely demise due to their alleged
negligence, recklessness and lack of security
precautions, means and methods before, during and
after the attack on the victim. During the proceedings a
quo, Lt. M. Soriano terminated his relationship with the
other petitioners by resigning from his position in the
school.
Defendants a quo (now petitioners) sought to have the
suit dismissed, alleging that since they are presumably
sued under Article 2180 of the Civil Code, the
complaint states no cause of action against them, as
jurisprudence on the subject is to the effect that
academic institutions, such as the PSBA, are beyond the
ambit of the rule in the afore-stated article.
The respondent trial court, however, overruled
petitioners' contention and thru an order dated 8
December 1987, denied their motion to dismiss. A
subsequent motion for reconsideration was similarly
dealt with by an order dated 25 January 1988.
Petitioners then assailed the trial court's dispositions
before the respondent appellate court which, in a
decision * promulgated on 10 June 1988, affirmed the
trial court's orders. On 22 August 1988, the respondent
appellate court resolved to deny the petitioners' motion
for reconsideration. Hence, this petition.
At the outset, it is to be observed that the respondent
appellate court primarily anchored its decision on the
law of quasi-delicts, as enunciated in Articles 2176 and
2180 of the Civil Code. Pertinent portions of the
appellate court's now assailed ruling state:
"Article 2180 (formerly Article 1903)
of the Civil Code is an adoptation
from the old Spanish Civil Code. The
comments of Manresa and learned
authorities on its meaning should
give way to present day changes. The
law is not fixed and flexible (sic); it
must be dynamic. In fact, the greatest
value and significance of law as a rule
of conduct in (sic) its flexibility to
adopt to changing social conditions
and its capacity to meet the new
challenges of progress.
Construed in the light of modern day
educational systems, Article 2180
cannot be construed in its narrow
concept as held in the old case of
Exconde vs. Capuno and Mercado vs.
Court of Appeals hence, the ruling in
282
 the Palisoc case that it should apply to
all kinds of educational institutions,
academic or vocational.
At any rate, the law holds the
teachers and heads of the school staff
liable unless they relieve themselves
of such liability pursuant to the last
paragraph of Article 2180 by 'proving
that they observed all the diligence to
prevent damage.' This can only be
done at a trial on the merits of the
case."
While we agree with the respondent appellate court
that the motion to dismiss the complaint was correctly
denied and the complaint should be tried on the merits,
we do not however agree with the premises of the
appellate court's ruling.
Article 2180, in conjunction with Article 2176 of the
Civil Code, establishes the rule of in loco parentis. This
Court discussed this doctrine in the afore-cited cases of
Exconde, Mendoza, Palisoc and, more recently, in
Amadora vs. Court of Appeals. In all such cases, it had
been stressed that the law (Article 2180) plainly
provides that the damage should have been caused or
inflicted by pupils or students of the educational
institution sought to be held liable for the acts of its
pupils or students while in its custody. However, this
material situation does not exist in the present case for,
as earlier indicated, the assailants of Carlitos were not
students of the PSBA, for whose acts the school could
be made liable.
However, does the appellate court's failure to consider
such material facts mean the exculpation of the
petitioners from liability? It does not necessarily follow.
When an academic institution accepts students for
enrollment, there is established a contract between
them, resulting in bilateral obligations which both
parties are bound to comply with. For its part, the
school undertakes to provide the student with an
education that would presumably suffice to equip him
with the necessary tools and skills to pursue higher
education or a profession. On the other hand, the
student covenants to abide by the school's academic
requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or
"built-in" obligation of providing their students with an
atmosphere that promotes or assists in attaining its
primary undertaking of imparting knowledge.
Certainly, no student can absorb the intricacies of
physics or higher mathematics or explore the realm of
the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms
around the school premises a constant threat to life and
limb. Necessarily, the school must ensure that adequate
steps are taken to maintain peace and order within the
283
campus premises and to prevent the breakdown
thereof.
Because the circumstances of the present case evince a
contractual relation between the PSBA and Carlitos
Bautista, the rules on quasi-delict do not really govern. A
perusal of Article 2176 shows that obligations arising
from quasi-delicts or tort, also known as extra-
contractual obligations, arise only between parties not
otherwise bound by contract, whether express or
implied. However, this impression has not prevented
this Court from determining the existence of a tort even
when there obtains a contract. In Air France vs.
Carroscoso (124 Phil. 722), the private respondent was
awarded damages for his unwarranted expulsion from
a first-class seat aboard the petitioner airline. It is noted,
however, that the Court referred to the petitioner-
airline's liability as one arising from tort, not one arising
from a contract of carriage. In effect, Air France is
authority for the view that liability from tort may exist
even if there is a contract, for the act that breaks the
contract may be also a tort. (Austro-America S.S. Co. vs.
Thomas, 248 Fed. 231).
This view was not all that revolutionary, for even as
early as 1918, this Court was already of a similar mind.
In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice
Fisher elucidated thus:
"The field of non-contractual
obligation is much more broader than
that of contractual obligation,
comprising, as it does, the whole
extent of juridical human relations.
These two fields, figuratively
speaking, concentric; that is to say,
the mere fact that a person is bound
to another by contract does not
relieve him from extra-contractual
liability to such person. When such a
contractual relation exists the obligor
may break the contract under such
conditions that the same act which
constitutes a breach of the contract
would have constituted the source of
an extra-contractual obligation had
no contract existed between the
parties."
Immediately what comes to mind is the chapter of the
Civil Code on Human Relations, particularly Article 21,
which provides:
"Any person who wilfully 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." (emphasis
supplied)
Air France penalized the racist policy of the airline
which emboldened the petitioner's employee to forcibly
oust the private respondent to cater to the comfort of a
white man who allegedly "had a better right to the
seat." In Austro-American, supra, the public
embarrassment caused to the passenger was the
justification for the Circuit Court of Appeals, (Second
Circuit), to award damages to the latter. From the
foregoing, it can be concluded that should the act which
breaches a contract be done in bad faith and be
violative of Article 21, then there is a cause to view the
act as constituting a quasi-delict.
In the circumstances obtaining in the case at bar,
however, there is, as yet, no finding that the contract
between the school and Bautista had been breached
thru the former's negligence in providing proper
security measures. This would be for the trial court to
determine. And, even if there be a finding of
negligence, the same could give rise generally to a
breach of contractual obligation only. Using the test of
Cangco, supra, the negligence of the school would not be
relevant absent a contract. In fact, that negligence
becomes material only because of the contractual
relation between PSBA and Bautista. In other words, a
contractual relation is a condition sine qua non to the
school's liability. The negligence of the school cannot
exist independently on the contract, unless the
negligence occurs under the circumstances set out in
Article 21 of the Civil Code.
This Court is not unmindful of the attendant difficulties
posed by the obligation of schools, above-mentioned,
for conceptually a school, like a common carrier, cannot
be an insurer of its students against all risks. This is
specially true in the populous student communities of
the so-called "university belt" in Manila where there
have been reported several incidents ranging from gang
wars to other forms of hooliganism. It would not be
equitable to expect of schools to anticipate all types of
violent trespass upon their premises, for
notwithstanding the security measures installed, the
same may still fail against an individual or group
determined to carry out a nefarious deed inside school
premises and environs. Should this be the case, the
school may still avoid liability by proving that the
breach of its contractual obligation to the students was
not due to its negligence, here statutorily defined to be
the omission of that degree of diligence which is
required by the nature of the obligation and
corresponding to the circumstances of persons, time
and place.
As the proceedings a quo have yet to commence on the
substance of the private respondents' complaint, the
record is bereft of all the material facts. Obviously, at
this stage, only the trial court can make such a
determination from the evidence still to unfold.
WHEREFORE, the foregoing premises considered, the
petition is DENIED. The Court of origin (RTC, Manila,
Br. 47) is hereby ordered to continue proceedings
consistent with this ruling of the Court. Costs against
the petitioners.
SO ORDERED.
Melencio-Herrera, Paras, Regalado and Nocon, JJ.,
concur.
SALUDAGA vs.
FAR EASTERN UNIVERSITY, ET AL.
G.R. No. 179337, 30 April 2008
YNARES-SANTIAGO, J p:
This Petition for Review on Certiorari under Rule 45 of
the Rules of Court assails the June 29, 2007 Decision of
the Court of Appeals in CA-G.R. CV No. 87050,
nullifying and setting aside the November 10, 2004
Decision of the Regional Trial Court of Manila, Branch
2, in Civil Case No. 98-89483 and dismissing the
complaint filed by petitioner; as well as its August 23,
2007 Resolution denying the Motion for
Reconsideration.
The antecedent facts are as follows:
Petitioner Joseph Saludaga was a sophomore law
student of respondent Far Eastern University (FEU)
when he was shot by Alejandro Rosete (Rosete), one of
the security guards on duty at the school premises on
August 18, 1996. Petitioner was rushed to FEU-Dr.
Nicanor Reyes Medical Foundation (FEU-NRMF) due
to the wound he sustained. 6 Meanwhile, Rosete was
brought to the police station where he explained that
the shooting was accidental. He was eventually
released considering that no formal complaint was filed
against him.
Petitioner thereafter filed a complaint for damages
against respondents on the ground that they breached
their obligation to provide students with a safe and
secure environment and an atmosphere conducive to
learning. Respondents, in turn, filed a Third-Party
Complaint against Galaxy Development and
Management Corporation (Galaxy), the agency
contracted by respondent FEU to provide security
services within its premises and Mariano D. Imperial
(Imperial), Galaxy's President, to indemnify them for
whatever would be adjudged in favor of petitioner, if
any; and to pay attorney's fees and cost of the suit. On
the other hand, Galaxy and Imperial filed a Fourth-
Party Complaint against AFP General Insurance.
On November 10, 2004, the trial court rendered a
decision in favor of petitioner, the dispositive portion of
which reads:
WHEREFORE, from the foregoing,
judgment is hereby rendered
ordering:
284
 1. FEU and Edilberto de Jesus, in
his capacity as president of FEU
to pay jointly and severally
Joseph Saludaga the amount of
P35,298.25 for actual damages
with 12% interest per annum
from the filing of the complaint
until fully paid; moral damages
of P300,000.00, exemplary
damages of P500,000.00,
attorney's fees of P100,000.00 and
cost of the suit;
2. Galaxy Management and
Development Corp. and its
president, Col. Mariano Imperial
to indemnify jointly and
severally 3rd party plaintiffs
(FEU and Edilberto de Jesus in
his capacity as President of FEU)
for the above-mentioned
amounts;
3. And the 4th party complaint is
dismissed for lack of cause of
action. No pronouncement as to
costs.
SO ORDERED.
Respondents appealed to the Court of Appeals which
rendered the assailed Decision, the decretal portion of
which provides, viz:
WHEREFORE, the appeal is hereby
GRANTED. The Decision dated
November 10, 2004 is hereby
REVERSED and SET ASIDE. The
complaint filed by Joseph Saludaga
against appellant Far Eastern
University and its President in Civil
Case No. 98-89483 is DISMISSED.
SO ORDERED.
Petitioner filed a Motion for Reconsideration which was
denied; hence, the instant petition based on the
following grounds:
xxx xxx xxx
Petitioner is suing respondents for damages based on
the alleged breach of student-school contract for a safe
learning environment. The pertinent portions of
petitioner's Complaint read:
6.0. At the time of plaintiff's
confinement, the defendants or
any of their representative did
not bother to visit and inquire
about his condition. This abject
indifference on the part of the
285
defendants continued even
after plaintiff was discharged
from the hospital when not
even a word of consolation
was heard from them. Plaintiff
waited for more than one (1)
year for the defendants to
perform their moral obligation
but the wait was fruitless. This
indifference and total lack of
concern of defendants served
to exacerbate plaintiff's
miserable condition.
xxx xxx xxx
11.0. Defendants are responsible for
ensuring the safety of its
students while the latter are
within the University
premises. And that should
anything untoward happens to
any of its students while they
are within the University's
premises shall be the
responsibility of the
defendants. In this case,
defendants, despite being
legally and morally bound,
miserably failed to protect
plaintiff from injury and
thereafter, to mitigate and
compensate plaintiff for said
injury;
12.0. When plaintiff enrolled with
defendant FEU, a contract was
entered into between them.
Under this contract,
defendants are supposed to
ensure that adequate steps are
taken to provide an
atmosphere conducive to
study and ensure the safety of
the plaintiff while inside
defendant FEU's premises. In
the instant case, the latter
breached this contract when
defendant allowed harm to
befall upon the plaintiff when
he was shot at by, of all
people, their security guard
who was tasked to maintain
peace inside the campus.
In Philippine School of Business Administration v. Court of
Appeals, we held that:
When an academic institution accepts
students for enrollment, there is
established a contract between them,
resulting in bilateral obligations
 which both parties are bound to
comply with. For its part, the school
undertakes to provide the student
with an education that would
presumably suffice to equip him with
the necessary tools and skills to
pursue higher education or a
profession. On the other hand, the
student covenants to abide by the
school's academic requirements and
observe its rules and regulations.
Institutions of learning must also
meet the implicit or "built-in"
obligation of providing their students
with an atmosphere that promotes or
assists in attaining its primary
undertaking of imparting knowledge.
Certainly, no student can absorb the
intricacies of physics or higher
mathematics or explore the realm of
the arts and other sciences when
bullets are flying or grenades
exploding in the air or where there
looms around the school premises a
constant threat to life and limb.
Necessarily, the school must ensure
that adequate steps are taken to
maintain peace and order within the
campus premises and to prevent the
breakdown thereof.
It is undisputed that petitioner was enrolled as a
sophomore law student in respondent FEU. As such,
there was created a contractual obligation between the
two parties. On petitioner's part, he was obliged to
comply with the rules and regulations of the school. On
the other hand, respondent FEU, as a learning
institution is mandated to impart knowledge and equip
its students with the necessary skills to pursue higher
education or a profession. At the same time, it is
obliged to ensure and take adequate steps to maintain
peace and order within the campus.
It is settled that in culpa contractual, the mere proof of
the existence of the contract and the failure of its
compliance justify, prima facie, a corresponding right of
relief. 15 In the instant case, we find that, when
petitioner was shot inside the campus by no less the
security guard who was hired to maintain peace and
secure the premises, there is a prima facie showing that
respondents failed to comply with its obligation to
provide a safe and secure environment to its students.
In order to avoid liability, however, respondents aver
that the shooting incident was a fortuitous event
because they could not have reasonably foreseen nor
avoided the accident caused by Rosete as he was not
their employee; and that they complied with their
obligation to ensure a safe learning environment for
their students by having exercised due diligence in
selecting the security services of Galaxy.
After a thorough review of the records, we find that
respondents failed to discharge the burden of proving
that they exercised due diligence in providing a safe
learning environment for their students. They failed to
prove that they ensured that the guards assigned in the
campus met the requirements stipulated in the Security
Service Agreement. Indeed, certain documents about
Galaxy were presented during trial; however, no
evidence as to the qualifications of Rosete as a security
guard for the university was offered.
Respondents also failed to show that they undertook
steps to ascertain and confirm that the security guards
assigned to them actually possess the qualifications
required in the Security Service Agreement. It was not
proven that they examined the clearances, psychiatric
test results, 201 files, and other vital documents
enumerated in its contract with Galaxy. Total reliance
on the security agency about these matters or failure to
check the papers stating the qualifications of the guards
is negligence on the part of respondents. A learning
institution should not be allowed to completely
relinquish or abdicate security matters in its premises to
the security agency it hired. To do so would result to
contracting away its inherent obligation to ensure a safe
learning environment for its students.
Consequently, respondents' defense of force majeure
must fail. In order for force majeure to be considered,
respondents must show that no negligence or
misconduct was committed that may have occasioned
the loss. An act of God cannot be invoked to protect a
person who has failed to take steps to forestall the
possible adverse consequences of such a loss. One's
negligence may have concurred with an act of God in
producing damage and injury to another; nonetheless,
showing that the immediate or proximate cause of the
damage or injury was a fortuitous event would not
exempt one from liability. When the effect is found to
be partly the result of a person's participation —
whether by active intervention, neglect or failure to act
— the whole occurrence is humanized and removed
from the rules applicable to acts of God.
Article 1170 of the Civil Code provides that those who
are negligent in the performance of their obligations are
liable for damages. Accordingly, for breach of contract
due to negligence in providing a safe learning
environment, respondent FEU is liable to petitioner for
damages. It is essential in the award of damages that
the claimant must have satisfactorily proven during the
trial the existence of the factual basis of the damages
and its causal connection to defendant's acts.
In the instant case, it was established that petitioner
spent P35,298.25 for his hospitalization and other
medical expenses. While the trial court correctly
imposed interest on said amount, however, the case at
bar involves an obligation arising from a contract and
not a loan or forbearance of money. As such, the proper
rate of legal interest is six percent (6%) per annum of
286
the amount demanded. Such interest shall continue to
run from the filing of the complaint until the finality of
this Decision. After this Decision becomes final and
executory, the applicable rate shall be twelve percent
(12%) per annum until its satisfaction.
The other expenses being claimed by petitioner, such as
transportation expenses and those incurred in hiring a
personal assistant while recuperating were however not
duly supported by receipts. In the absence thereof, no
actual damages may be awarded. Nonetheless,
temperate damages under Art. 2224 of the Civil Code
may be recovered where it has been shown that the
claimant suffered some pecuniary loss but the amount
thereof cannot be proved with certainty. Hence, the
amount of P20,000.00 as temperate damages is awarded
to petitioner.
As regards the award of moral damages, there is no
hard and fast rule in the determination of what would
be a fair amount of moral damages since each case must
be governed by its own peculiar circumstances. The
testimony of petitioner about his physical suffering,
mental anguish, fright, serious anxiety, and moral
shock resulting from the shooting incident justify the
award of moral damages. However, moral damages are
in the category of an award designed to compensate the
claimant for actual injury suffered and not to impose a
penalty on the wrongdoer. The award is not meant to
enrich the complainant at the expense of the defendant,
but to enable the injured party to obtain means,
diversion, or amusements that will serve to obviate the
moral suffering he has undergone. It is aimed at the
restoration, within the limits of the possible, of the
spiritual status quo ante, and should be proportionate
to the suffering inflicted. Trial courts must then guard
against the award of exorbitant damages; they should
exercise balanced restrained and measured objectivity
to avoid suspicion that it was due to passion, prejudice,
or corruption on the part of the trial court. We deem it
just and reasonable under the circumstances to award
petitioner moral damages in the amount of P100,000.00.
Likewise, attorney's fees and litigation expenses in the
amount of P50,000.00 as part of damages is reasonable
in view of Article 2208 of the Civil Code. However, the
award of exemplary damages is deleted considering the
absence of proof that respondents acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.
We note that the trial court held respondent De Jesus
solidarily liable with respondent FEU. In Powton
Conglomerate, Inc. v. Agcolicol, we held that:
[A] corporation is invested by law
with a personality separate and
distinct from those of the persons
composing it, such that, save for
certain exceptions, corporate officers
who entered into contracts in behalf
of the corporation cannot be held
personally liable for the liabilities of
287
the latter. Personal liability of a
corporate director, trustee or officer
along (although not necessarily) with
the corporation may so validly attach,
as a rule, only when — (1) he assents
to a patently unlawful act of the
corporation, or when he is guilty of
bad faith or gross negligence in
directing its affairs, or when there is a
conflict of interest resulting in
damages to the corporation, its
stockholders or other persons; (2) he
consents to the issuance of watered
down stocks or who, having
knowledge thereof, does not
forthwith file with the corporate
secretary his written objection
thereto; (3) he agrees to hold himself
personally and solidarily liable with
the corporation; or (4) he is made by a
specific provision of law personally
answerable for his corporate action.
None of the foregoing exceptions was established in the
instant case; hence, respondent De Jesus should not be
held solidarily liable with respondent FEU.
Incidentally, although the main cause of action in the
instant case is the breach of the school-student contract,
petitioner, in the alternative, also holds respondents
vicariously liable under Article 2180 of the Civil Code,
which provides:
Art. 2180. The obligation imposed by
Article 2176 is demandable not only
for one's own acts or omissions, but
also for those of persons for whom
one is responsible.
xxx xxx xxx
Employers shall be liable for the
damages caused by their employees
and household helpers acting within
the scope of their assigned tasks, even
though the former are not engaged in
any business or industry.
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.
We agree with the findings of the Court of Appeals that
respondents cannot be held liable for damages under
Art. 2180 of the Civil Code because respondents are not
the employers of Rosete. The latter was employed by
Galaxy. The instructions issued by respondents'
Security Consultant to Galaxy and its security guards
are ordinarily no more than requests commonly
envisaged in the contract for services entered into by a
principal and a security agency. They cannot be
construed as the element of control as to treat
respondents as the employers of Rosete.
As held in Mercury Drug Corporation v. Libunao:
In Soliman, Jr. v. Tuazon, we held that
where the security agency recruits,
hires and assigns the works of its
watchmen or security guards to a
client, the employer of such guards or
watchmen is such agency, and not the
client, since the latter has no hand in
selecting the security guards. Thus,
the duty to observe the diligence of a
good father of a family cannot be
demanded from the said client:
. . . [I]t is settled in our
jurisdiction that where the
security agency, as here,
recruits, hires and assigns
the work of its watchmen or
security guards, the agency
is the employer of such
guards or watchmen.
Liability for illegal or
harmful acts committed by
the security guards attaches
to the employer agency, and
not to the clients or
customers of such agency.
As a general rule, a client or
customer of a security
agency has no hand in
selecting who among the
pool of security guards or
watchmen employed by the
agency shall be assigned to
it; the duty to observe the
diligence of a good father of
a family in the selection of
the guards cannot, in the
ordinary course of events, be
demanded from the client
whose premises or property
are protected by the security
guards.
xxx xxx xxx
The fact that a client company may
give instructions or directions to the
security guards assigned to it, does
not, by itself, render the client
responsible as an employer of the
security guards concerned and liable
for their wrongful acts or omissions.
We now come to respondents' Third Party Claim
against Galaxy. In Firestone Tire and Rubber Company of
the Philippines v. Tempengko, we held that:
The third-party complaint is,
therefore, a procedural device
whereby a 'third party' who is neither
a party nor privy to the act or deed
complained of by the plaintiff, may
be brought into the case with leave of
court, by the defendant, who acts as
third-party plaintiff to enforce against
such third-party defendant a right for
contribution, indemnity, subrogation
or any other relief, in respect of the
plaintiff's claim. The third-party
complaint is actually independent of
and separate and distinct from the
plaintiff's complaint. Were it not for
this provision of the Rules of Court, it
would have to be filed independently
and separately from the original
complaint by the defendant against
the third-party. But the Rules permit
defendant to bring in a third-party
defendant or so to speak, to litigate
his separate cause of action in respect
of plaintiff's claim against a third-
party in the original and principal
case with the object of avoiding
circuitry of action and unnecessary
proliferation of law suits and of
disposing expeditiously in one
litigation the entire subject matter
arising from one particular set of
facts.
Respondents and Galaxy were able to litigate their
respective claims and defenses in the course of the trial
of petitioner's complaint. Evidence duly supports the
findings of the trial court that Galaxy is negligent not
only in the selection of its employees but also in their
supervision. Indeed, no administrative sanction was
imposed against Rosete despite the shooting incident;
moreover, he was even allowed to go on leave of
absence which led eventually to his disappearance.
Galaxy also failed to monitor petitioner's condition or
extend the necessary assistance, other than the
P5,000.00 initially given to petitioner. Galaxy and
Imperial failed to make good their pledge to reimburse
petitioner's medical expenses.
For these acts of negligence and for having supplied
respondent FEU with an unqualified security guard,
which resulted to the latter's breach of obligation to
petitioner, it is proper to hold Galaxy liable to
respondent FEU for such damages equivalent to the
above-mentioned amounts awarded to petitioner.
Unlike respondent De Jesus, we deem Imperial to be
solidarily liable with Galaxy for being grossly negligent
in directing the affairs of the security agency. It was
288
Imperial who assured petitioner that his medical
expenses will be shouldered by Galaxy but said
representations were not fulfilled because they
presumed that petitioner and his family were no longer
interested in filing a formal complaint against them.
WHEREFORE, the petition is GRANTED. The June 29,
2007 Decision of the Court of Appeals in CA-G.R. CV
No. 87050 nullifying the Decision of the trial court and
dismissing the complaint as well as the August 23, 2007
Resolution denying the Motion for Reconsideration are
REVERSED and SET ASIDE. The Decision of the
Regional Trial Court of Manila, Branch 2, in Civil Case
No. 98-89483 finding respondent FEU liable for
damages for breach of its obligation to provide students
with a safe and secure learning atmosphere, is
AFFIRMED with the following MODIFICATIONS:
a. respondent Far Eastern University (FEU) is
ORDERED to pay petitioner actual damages in the
amount of P35,298.25, plus 6% interest per annum
from the filing of the complaint until the finality of
this Decision. After this decision becomes final and
executory, the applicable rate shall be twelve
percent (12%) per annum until its satisfaction;
b. respondent FEU is also ORDERED to pay
petitioner temperate damages in the amount of
P20,000.00; moral damages in the amount of
P100,000.00; and attorney's fees and litigation
expenses in the amount of P50,000.00;
c. the award of exemplary damages is DELETED.
The Complaint against respondent Edilberto C. De
Jesus is DISMISSED. The counterclaims of respondents
are likewise DISMISSED.
Galaxy Development and Management Corporation
(Galaxy) and its president, Mariano D. Imperial are
ORDERED to jointly and severally pay respondent FEU
damages equivalent to the above-mentioned amounts
awarded to petitioner.
SO ORDERED.
Austria-Martinez, Chico-Nazario, Nachura and Reyes,
JJ., concur.
c. Owners and Managers of Establishments
ST. FRANCIS HIGH SCHOOL, ET AL. vs.
HONORABLE COURT OF APPEALS, ET AL.
G.R. No. 82465, 25 February 1991
PARAS, J p:
This is a petition for review of the decision of the Court
of Appeals, the dispositive portion of which reads:
“WHEREFORE, the decision under
appeal is hereby affirmed, with the
289
following modifications: (1)
Exemplary damages in the amount of
P20,000.00 are hereby awarded to
plaintiffs, in addition to the actual
damages of P30,000.00, moral
damages of P20,000.00 and attorney's
fees in the amount of P15,000.00
awarded to plaintiffs in the decision
under appeal; (2) St. Francis High
School, represented by the Spouses
Fernando Nantes and Rosario
Lacandula, and Benjamin Illumin, are
hereby held jointly and severally
liable with defendants Connie
Arquio, Tirso de Chaves, Luisito
Vinas and Patria Cadis for the
payment to plaintiffs of the
abovementioned actual damages,
moral damages, exemplary damages
and attorney's fees, and for costs; and
(3) Defendants Yoly Jaro and Nida
Aragones are hereby absolved from
liability, and the case against them,
together with their respective
counterclaims, is hereby ordered
dismissed.
"SO ORDERED." (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a
freshman student of Section 1-C at the St. Francis High
School, wanted to join a school picnic undertaken by
Class I-B and Class I-C at Talaan Beach, Sariaya,
Quezon. Ferdinand's parents, respondents spouses Dr.
Romulo Castillo and Lilia Cadiz Castillo, because of
short notice, did not allow their son to join but merely
allowed him to bring food to the teachers for the picnic,
with the directive that he should go back home after
doing so. However, because of persuasion of the
teachers, Ferdinand went on with them to the beach.
During the picnic and while the students, including
Ferdinand, were in the water, one of the female
teachers was apparently drowning. Some of the
students, including Ferdinand, came to her rescue, but
in the process, it was Ferdinand himself who drowned.
His body was recovered but efforts to resuscitate him
ashore failed. He was brought to a certain Dr. Luna in
Sariaya, Quezon and later to the Mt. Carmel General
Hospital where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint
docketed as Civil Case No. 8834, in the Regional Trial
Court, Branch LVIII of Lucena City, against the St.
Francis High School, represented by the spouses
Fernando Nantes and Rosario Lacandula, Benjamin
Illumin (its principal), and the teachers: Tirso de
Chaves, Luisito Vinas, Connie Arquio, Nida Aragones,
Yoly Jaro, and Patria Cadiz, for Damages which
respondents allegedly incurred from the death of their
13-year old son, Ferdinand Castillo. Contending that
the death of their son was due to the failure of the
petitioners to exercise the proper diligence of a good
father of the family in preventing their son's drowning,
respondents prayed of actual, moral and exemplary
damages, attorney's fees and expenses for litigation.
The trial court found in favor of the respondents and
against petitioners-teachers Arquio, de Chaves, Vinas,
Aragones, Jaro and Cadiz, ordering all of them jointly
and severally to pay respondents the sum of P30,000.00
as actual damages, P20,000.00 as moral damages,
P15,000.00 as attorney's fees, and to pay the costs. The
court a quo reasoned:
"Taking into consideration the
evidence presented, this Court
believes that the defendant teachers
namely: Connie Arquio, Luisito
Vinas, Tirso de Chaves, Yoly Jaro,
Nida Aragones and Patria Cadiz had
failed to exercise the diligence
required of them by law under the
circumstances to guard against the
harm they had foreseen." (pp, 29-30,
Rollo)
"xxx xxx xxx
"While it is alleged that when
defendants Yoly Jaro and Nida
Aragones arrived at the picnic site,
the drowning incident had already
occurred, such fact does not and
cannot excuse them from their
liability. In fact, it could be said that
by coming late, they were remiss in
their duty to safeguard the students."
(p. 30, Rollo)
"The students, young as they were
then (12 to 13 years old), were easily
attracted to the sea without
aforethought of the dangers it offers.
Yet, the precautions and reminders
allegedly performed by the
defendants-teachers definitely fell
short of the standard required by law
under the circumstances. While the
defendants-teachers admitted that
some parts of the sea where the
picnic was held are deep, the
supposed lifeguards of the children
did not even actually go to the water
to test the depth of the particular area
where the children would swim. And
indeed the fears of the plaintiffs that
the picnic area was dangerous was
confirmed by the fact that three
persons during the picnic got
drowned at the same time. Had the
defendant teachers made an actual
and physical observation of the water
before they allowed the students to
swim, they could have found out that
the area where the children were
swimming was indeed dangerous.
And not only that, the male teachers
who according to the female teachers
were there to supervise the children
to ensure their safety were not even
at the area where the children were
swimming. They were somewhere
and as testified to by plaintiffs'
witness they were having a drinking
spree. (pp. 55-56, Rollo)
On the other hand, the trial court dismissed the case
against the St. Francis High School, Benjamin Illumin
and Aurora Cadorna. Said the court a quo:
"As shown and adverted to above,
this Court cannot find sufficient
evidence showing that the picnic was
a school sanctioned one. Similarly, no
evidence has been shown to hold
defendants Benjamin Illumin and
Aurora Cadorna responsible for the
death of Ferdinand Castillo together
with the other defendant teachers. It
has been sufficiently shown that
Benjamin Illumin had himself not
consented to the picnic and in fact he
did not join it. On the other hand,
defendant Aurora Cadorna had then
her own class to supervise and in fact
she was not amongst those allegedly
invited by defendant Connie Arquio
to supervise class I-C to which
Ferdinand Castillo belongs." (p. 30,
Rollo)
Both petitioners and respondents appealed to the Court
of Appeals. Xxx
xxx xxx xxx
The petition is impressed with merit.
If at all petitioners are liable for negligence, this is
because of their own negligence or the negligence of
people under them. In the instant case however, as will
be shown hereunder, petitioners are neither guilty of
their own negligence or guilty of the negligence of
those under them.
Hence, it cannot be said that they are guilty at all of any
negligence. Consequently they cannot be held liable for
damages of any kind.
At the outset, it should be noted that respondent
spouses, parents of the victim Ferdinand, allowed their
son to join the excursion.
"Testimony of Dr. Castillo on cross
exam. by Atty. Flores
290

Q Now, when your son asked you
for money to buy food, did you
not ask him where he will bring
this?
A I asked him where he was going,
he answered, I am going to the
picnic, and when I asked him
where, he did not answer, sir.
Q And after giving the money, you
did not tell him anything more?
A No more, sir.
Q And after that you just learned
that your son joined the picnic?
A Yes, sir.
Q And you came to know of it after
the news that your son was
drowned in the picnic came to
you, is that correct?
A Yes, sir.
Q From 8:00 o'clock in the morning
up to 12:00 o'clock noon of
March 20, 1982, you did not
know that your son joined the
picnic?
A No, sir, I did not know.
Q Did you not look for your son
during that time?
A I am too busy with my
profession, that is why I was not
able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell
you that your son joined the
picnic?
A Later on after 12:00, sir.
Q And during that time you were
too busy that you did not inquire
whether your son have joined
that picnic?
A Yes, sir."
(TSN, pp. 16-17, hearing of April 2,
1984 witness Romulo Castillo)
The fact that he gave money to his son to buy food for
the picnic even without knowing where it will be held,
is a sign of consent for his son to join the same.
Furthermore.
"Testimony of Dr. Lazaro on cross
examination:
Q How did you conduct this
mental and physical
examination?
A I have interviewed several
persons and the patient herself.
She even felt guilty about the
death of her son because she
cooked adobo for him so he
291
could join the excursion where
her son died of drowning.
Q Why were you able to say she
was feeling guilty because she
was the one who personally
cooked the adobo for her son?
A It was during the interview that I
had gathered it from the patient
herself. She was very sorry had
she not allowed her son to join
the excursion her son would
have not drowned. I don't know
if she actually permitted her son
although she said she cooked
adobo so he could join.
(Emphasis Supplied) (TSN, p. 19,
hearing of April 30, 1984, Dr.
Lazaro — witness)
Respondent Court of Appeals committed an error in
applying Article 2180 of the Civil Code in rendering
petitioner school liable for the death of respondent's
son.
Article 2180, par. 4 states that:
"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."
Under this paragraph, it is clear that before an
employer may be held liable for the negligence of his
employee, the act or omission which caused damage or
prejudice must have occurred while an employee was
in the performance of his assigned tasks.
In the case at bar, the teachers/petitioners were not in
the actual performance of their assigned tasks. The
incident happened not within the school premises, not
on a school day and most importantly while the
teachers and students were holding a purely private
affair, a picnic. It is clear from the beginning that the
incident happened while some members of the I-C class
of St. Francis High School were having a picnic at
Talaan Beach. This picnic had no permit from the
school head or its principal, Benjamin Illumin because
this picnic is not a school sanctioned activity neither is
it considered as an extra-curricular activity.
As earlier pointed out by the trial court, mere
knowledge by petitioner/principal Illumin of the
planning of the picnic by the students and their
teachers does not in any way or in any manner show
acquiescence or consent to the holding of the same. The
application therefore of Article 2180 has no basis in law
and neither is it supported by any jurisprudence. If we
were to affirm the findings of respondent Court on this
score, employers will forever be exposed to the risk and
danger of being hailed to Court to answer for the
misdeeds or omissions of the employees even if such
act or omission he committed while they are not in the
performance of their duties.
Finally, no negligence could be attributable to the
petitioners-teachers to warrant the award of damages to
the respondents-spouses.
Petitioners Connie Arquio, the class adviser of I-C, the
section where Ferdinand belonged, did her best and
exercised diligence of a good father of a family to
prevent any untoward incident or damages to all the
students who joined the picnic.
In fact, Connie invited co-petitioners Tirso de Chavez
and Luisito Vinas who are both P.E. instructors and
scout masters who have knowledge in First Aid
application and swimming. Moreover, even
respondents' witness, Segundo Vinas, testified that "the
defendants (petitioners herein) had life savers
especially brought by the defendants in case of
emergency." (p. 85, Rollo) The records also show that
both petitioners Chavez and Vinas did all what is
humanly possible to save the child.
"Testimony of Luisito Vinas on cross
examination,
Q And when you saw the boy,
Ferdinand Castillo, you
approached the boy and claim
also having applied first aid on
him?
A Yes, sir.
Q And while you were applying
the so called first aid, the
children were covering you up
or were surrounding you?
A Yes, sir.
Q You were rattled at that time, is
it not?
A No, sir.
Q You mean you were in calm and
peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was
no longer responding to your
application of first aid?
A Yes, sir.
Q You have never been disturbed,
"nababahala" in the process of
your application of the first aid
on the body of Ferdinand
Castillo?
A No, sir, because we were
attending to the application of
first aid that we were doing, sir.
Q After you have applied back to
back pressure and which you
claimed the boy did not respond,
were you not disturbed anyway?
A I was disturbed during that time,
sir.
Q For how many minutes have you
applied the back to back
pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having
applied the pressure of your
body on the body of Ferdinand
Castillo?
A Yes, sir.
Q Will you please describe how
you applied a single act of back
to back pressure?
A This has been done by placing
the boy lay first downwards,
then the face was a little bit
facing right and doing it by
massaging the back of the child,
sir."
(TSN, pp. 32-35, hearing of July 30,
1984)
"Testimony of Tirso de Chavez on
direct examination.
ATTY. FLORES:
Q Who actually applied the first
aid or artificial respiration to the
child?
A Myself, sir.
Q How did you apply the first aid
to the guy?
A The first step that I took, with the
help of Mr. Luisito Vinas, was I
applied back to back pressure
and took notice of the condition
of the child. We placed the feet in
a higher position, that of the
head of the child, sir.
Q After you have placed the boy in
that particular position, where
the feet were on a higher level
than that of the head, what did
you do next?
A The first thing that we did,
particularly myself, was that
after putting the child in that
position, I applied the back to
back pressure and started to
massage from the waistline up,
but I noticed that the boy was
not responding, sir.
Q For how long did you apply this
back to back pressure on the
boy?
292
 A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer,
for 15 seconds, sir.
Q After you noticed that the boy
was not responding, what did
you do?
A When we noticed that the boy
was not responding, we changed
the position of the boy by
placing the child facing upwards
laying on the sand then we
applied the mouth to mouth
resuscitation, sir." (pp. 92-93,
Rollo)
With these facts in mind, no moral nor exemplary
damages may be awarded in favor of respondents-
spouses. The case at bar does not fall under any of the
grounds to grant moral damages.
"Art. 2217. Moral Damages
include physical suffering, mental
anguish, fright, serious anxiety,
besmirched reputation, wounded
feelings, moral shock, social
humiliation, and similar injury.
Though incapable of pecuniary
computation, moral damages may be
recovered if they are the proximate
result of the defendant's wrongful act
or omission."
Moreover, as already pointed out hereinabove,
petitioners are not guilty of any fault or negligence,
hence, no moral damages can be assessed against them.
While it is true that respondents-spouses did give their
consent to their son to join the picnic, this does not
mean that the petitioners were already relieved of their
duty to observe the required diligence of a good father
of a family in ensuring the safety of the children. But in
the case at bar, petitioners were able to prove that they
had exercised the required diligence. Hence, the claim
for moral or exemplary damages becomes baseless.
PREMISES CONSIDERED, the questioned decision
dated November 19, 1987, finding petitioners herein
guilty of negligence and liable for the death of
Ferdinand Castillo and awarding the respondents
damages, is hereby SET ASIDE insofar as the
petitioners herein are concerned, but the portion of the
said decision dismissing their counterclaim, there being
no merit, is hereby AFFIRMED.
SO ORDERED.
Sarmiento and Regalado, JJ., concur.
CASTILEX INDUSTRIAL CORPORATION vs.
VASQUEZ, JR., ET AL.
G.R. No. 132266, 21 December 1999, 321 SCRA 393
293
See supra.
d. Employers
MARTIN vs. COURT OF APPEALS, ET AL.
G.R. No. 82248, 30 January 1992, 205 SCRA 591
CRUZ, J p:
This case turns on the proper application of the familiar
rule that he who alleges must prove his allegation.
Ernesto Martin was the owner of a private car bearing
license plate No. NPA-930. At around 2 o'clock in the
morning of May 11, 1982, while being driven by Nestor
Martin, it crashed into a Meralco electric post on Valley
Gold Road, in Antipolo, Rizal. The car was wrecked
and the pole severely damaged. Meralco subsequently
demanded reparation from Ernesto Martin, but the
demand was rejected. It thereupon sued him for
damages in the Regional Trial Court of Pasig, alleging
inter alia that he was liable to it in the sum of P17,352.00
plus attorney's fees and litigation costs as the employer
of Nestor Martin. The petitioner's main defense was
that Nestor Martin was not his employee.
After the plaintiff had rested, the defendant moved to
dismiss the complaint on the ground that no evidence
had been adduced to show that Nestor Martin was his
employee. The motion was denied. The case was
considered submitted for decision with the express
waiver by the defendant of his right to present his own
evidence. The defendant thus did not rebut the
plaintiff's allegation that he was Nestor Martin's
employer.
In the decision dated August 27, 1985, Judge Eutropio
Migriño held in favor of the plaintiff, awarding him the
amount claimed, with 12% interest, and P4,000.00
attorney's fees, plus costs. 1 The decision was
seasonably elevated to the Court of Appeals, which
affirmed it in toto on February 22, 1988, 2 prompting
this petition for review.
The petition has merit.
It is important to stress that the complaint for damages
was filed by the private respondent against only
Ernesto Martin as alleged employer of Nestor Martin,
the driver of the car at the time of the accident. Nestor
Martin was not impleaded. The action was based on
tort under Article 2180 of the Civil Code, providing in
part that:
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.
The above rule is applicable only if there is an
employer-employee relationship although it is not
necessary that the employer be engaged in any business
or industry. It differs in this sense from Article 103 of
the Revised Penal Code, which requires that the
employer be engaged in an industry to be subsidiarily
liable for the felony committed by his employee in the
course of his employment.
Whether or not engaged in any business or industry,
the employer under Article 2180 is liable for the torts
committed by his employees within the scope of their
assigned task. But it is necessary first to establish the
employment relationship. Once this is done, the
plaintiff must show, to hold the employer liable, that
the employee was acting within the scope of his
assigned task when the tort complained of was
committed. It is only then that the defendant, as
employer, may find it necessary to interpose the
defense of due diligence in the selection and
supervision of the employee as allowed in that article.
In the case at bar, no evidence whatsoever was adduced
by the plaintiff to show that the defendant was the
employer of Nestor Martin at the time of the accident.
The trial court merely presumed the existence of the
employer-employee relationship and held that the
petitioner had not refuted that presumption. It noted
that although the defendant alleged that he was not
Nestor Martin's employer, "he did not present any
proof to substantiate his allegation."
As the trial court put it:
There is no need to stretch one's
imagination to realize that a car
owner entrusts his vehicle only to his
driver or to anyone whom he allows
to drive it. Since neither plaintiff nor
defendant has presented any
evidence on the status of Nestor
Martin, the Court presumes that he
was at the time of the incident, an
employee of the defendant. It is
elementary that he who makes an
allegation is required to prove the
same. Defendant alleges that Nestor
Martin was not his employee but he
did not present any proof to
substantiate his a legation. While it is
true plaintiff did not present evidence
on its allegation that Nestor Martin
was defendant's employee, the Court
believes and so holds, that there was
no need for such evidence. As above
adverted to, the Court can proceed on
the presumption that one who drives
the motor vehicle is an employee of
the owner thereof.
A presumption is defined as an inference as to the
existence of a fact not actually known, arising from its
usual connection with another which is known, or a
conjecture based on past experience as to what course
human affairs ordinarily take. It is either a presumption
juris, or of law, or a presumption hominis, or of fact.
There is no law directing the deduction made by the
courts below from the particular facts presented to
them by the parties. Such deduction is not among the
conclusive presumptions under Section 2 or the
disputable presumptions under Section 3 of Rule 131 of
the Rules of Court. In other words, it is not a
presumption juris.
Neither is it a presumption hominis, which is a reasonable
deduction from the facts proved without an express
direction of law to that effect. 7 The facts proved, or not
denied, viz., the ownership of the car and the
circumstances of the accident, are not enough bases for
the inference that the petitioner is the employer of
Nestor Martin.
In the modern urban society, most male persons know
how to drive and do not have to employ others to drive
for them unless this is needed for business reasons.
Many cannot afford this luxury, and even if they could,
may consider it an unnecessary expense and
inconvenience. In the present case, the more plausible
assumption is that Nestor Martin is a close relative of
Ernesto Martin and on the date in question borrowed
the car for some private purpose. Nestor would
probably not have been accommodated if he were a
mere employee for employees do not usually enjoy the
use of their employer's car at two o'clock in the
morning.
As the employment relationship between Ernesto
Martin and Nestor Martin could not be presumed, it
was necessary for the plaintiff to establish it by
evidence. Meralco had the burden of proof, or the duty
"to present evidence on the fact in issue necessary to
establish his claim" as required by Rule 131, Section 1 of
the Revised Rules of Court. Failure to do this was fatal
to its action.
It was enough for the defendant to deny the alleged
employment relationship, without more, for he was not
under obligation to prove this negative averment. Ei
incumbit probotio qui dicit, non qui negat. This Court has
consistently applied the ancient rule that "if the
plaintiff, upon whom rests the burden of proving his
cause of action, fails to show in a satisfactory manner
the facts upon which he bases his claim, the defendant
is under no obligation to prove his exception or
defense.
The case of Amor v. Soberano, a Court of Appeals
decision not elevated to this Court, was misapplied by
the respondent court in support of the petitioner's
position. The vehicle involved in that case was a six-by-
six truck, which reasonably raised the factual
presumption that it was engaged in business and that
its driver was employed by the owner of the vehicle.
294
The case at bar involves a private vehicle as its license
plate indicates. No evidence was ever offered that it
was being used for business purposes or that, in any
case, its driver at the time of the accident was an
employee of the petitioner.
It is worth mentioning in this connection that in Filamer
Christian Institute v. Court of Appeals, the owner of the
jeep involved in the accident was absolved from
liability when it was shown that the driver of the
vehicle was not employed as such by the latter but was
a "working scholar" as that term is defined by the
Omnibus Rules Implementing the Labor Code. He was
assigned to janitorial duties. Evidence was introduced
to establish the employment relationship but it failed
nonetheless to hold the owner responsible.
Significantly, no similar evidence was even presented
in the case at bar, the private respondent merely relying
on its mere allegation that Nestor Martin was the
petitioner's employee. Allegation is not synonymous
with proof.
The above observations make it unnecessary to
examine the question of the driver's alleged negligence
or the lack of diligence on the part of the petitioner in
the selection and supervision of his employee. These
questions have not arisen because the employment
relationship contemplated in Article 1860 of the Civil
Code has not been established.
WHEREFORE, the petition is GRANTED. The decision
of the respondent court is REVERSED, and Civil Case
No. 48045 in the Regional Trial Court of Pasig, Branch
151, is DISMISSED, with costs against the respondent. It
is so ordered.
Narvasa, C.J., Griño-Aquino and Medialdea, JJ., concur.
FILAMER CHRISTIAN INSTITUTE vs.
COURT OF APPEALS, ET AL.
G.R. No. 75112, 16 October 1990, 190 SCRA 485
FERNAN, C.J p:
This is a petition for review of the decision of the Court
of Appeals affirming the judgment of the Regional Trial
Court (RTC) of Roxas City, Branch 14 in Civil Case No.
V-4222 which found petitioner Filamer Christian
Institute and Daniel Funtecha negligent and therefore
answerable for the resulting injuries caused to private
respondent Potenciano Kapunan, Sr.
Private respondent Potenciano Kapunan, Sr., an eighty-
two-year old retired schoolteacher (now deceased), was
struck by the Pinoy jeep owned by petitioner Filamer
and driven by its alleged employee, Funtecha, as
Kapunan, Sr. was walking along Roxas Avenue, Roxas
City at 6:30 in the evening of October 20, 1977. As a
result of the accident, Kapunan, Sr. suffered multiple
injuries for which he was hospitalized for a total of
twenty (20) days.
295
Evidence showed that at the precise time of the
vehicular accident, only one headlight of the jeep was
functioning. Funtecha, who only had a student driver's
permit, was driving after having persuaded Allan
Masa, the authorized driver, to turn over the wheels to
him. The two fled from the scene after the incident. A
tricycle driver brought the unconscious victim to the
hospital.
Thereafter, Kapunan, Sr. instituted a criminal case
against Funtecha alone in the City Court of Roxas City
for serious physical injuries through reckless
imprudence. Kapunan, Sr. reserved his right to file an
independent civil action. The inferior court found
Funtecha guilty as charged and on appeal, his
conviction was affirmed by the then Court of First
Instance of Capiz.
Pursuant to his reservation, Kapunan, Sr. commenced a
civil case for damages before the RTC of Roxas City.
Named defendants in the complaint were petitioner
Filamer and Funtecha. Also included was Agustin
Masa, the director and president of Filamer Christian
Institute, in his personal capacity "in that he personally
authorized and allowed said Daniel Funtecha who was
his houseboy at the time of the incident, to drive the
vehicle in question despite his knowledge and
awareness that the latter did not have the necessary
license or permit to drive said vehicle. His son, Allan
Masa, who was with Funtecha at the time of the
accident, was not impleaded as a co-defendant.
On December 14, 1983, the trial court rendered
judgment finding not only petitioner Filamer and
Funtecha to be at fault but also Allan Masa, a non-
party. Thus:
xxx xxx xxx
Only petitioner Filamer and third-party defendant
Zenith Insurance Corporation appealed the lower
court's judgment to the Court of Appeals and as a
consequence, said lower court's decision became final
as to Funtecha. For failure of the insurance firm to pay
the docket fees, its appeal was dismissed on September
18, 1984. On December 17, 1985, the Appellate Court
rendered the assailed judgment affirming the trial
court's decision in toto. Hence, the present recourse by
petitioner Filamer.
It is petitioner Filamer's basic contention that it cannot
be held responsible for the tortious act of Funtecha on
the ground that there is no existing employer-employee
relationship between them. We agree.
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."
"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.
"xxx xxx xxx
"The responsibility treated of in this
article shall cease when the persons
herein mentioned prove that they
observe all the diligence of a good
father of a family to prevent damage."
(Emphasis supplied).
The legal issue in this appeal is whether or not the term
"employer" as used in Article 2180 is applicable to
petitioner Filamer with reference to Funtecha.
In disclaiming liability, petitioner Filamer has invoked
the provisions of the Labor Code, 7 specifically Section
14, Rule X of Book III which reads:
"Sec. 14. Working scholars. — There is
no employer-employee relationship
between students on the one hand,
and schools, colleges or universities
on the other, where students work for
the latter in exchange for the
privilege to study free of charge;
provided the students are given real
opportunity, including such facilities
as may be reasonable, necessary to
finish their chosen courses under
such arrangement." (Emphasis
supplied).
It is manifest that under the just-quoted provision of
law, petitioner Filamer cannot be considered as
Funtecha's employer. Funtecha belongs to that special
category of students who render service to the school in
exchange for free tuition. Funtecha worked for
petitioner for two hours daily for five days a week. He
was assigned to clean the school passageways from 4:00
a.m. to 6:00 a.m. with sufficient time to prepare for his
7:30 a.m. classes. As admitted by Agustin Masa in open
court, Funtecha was not included in the company
payroll.
The wording of Section 14 is clear and explicit and
leaves no room for equivocation. To dismiss the
implementing rule as one which governs only the
"personal relationship" between the school and its
students and not where there is already a third person
involved, as espoused by private respondents, is to
read into the law something that was not legislated
there in the first place. The provision of Section 14 is
obviously intended to eliminate an erstwhile gray area
in labor relations and seeks to define in categorical
terms the precise status of working scholars in relation
to the learning institutions in which they work for the
privilege of a free education.
But even if we were to concede the status of an
employee on Funtecha, still the primary responsibility
for his wrongdoing cannot be imputed to petitioner
Filamer for the plain reason that at the time of the
accident, it has been satisfactorily shown that Funtecha
was not acting within the scope of his supposed
employment. His duty was to sweep the school
passages for two hours every morning before his
regular classes. Taking the wheels of the Pinoy jeep
from the authorized driver at 6:30 in the evening and
then driving the vehicle in a reckless manner resulting
in multiple injuries to a third person were certainly not
within the ambit of his assigned tasks. In other words,
at the time of the injury, Funtecha was not engaged in
the execution of the janitorial services for which he was
employed, but for some purpose of his own. It is but
fair therefore that Funtecha should bear the full brunt
of his tortious negligence. Petitioner Filamer cannot be
made liable for the damages he had caused.
Private respondents' attempt to hold petitioner Filamer
directly and primarily answerable to the injured party
under Article 2180 of the Civil Code would have
prospered had they proceeded against Allan Masa, the
authorized driver of the Pinoy jeep and undisputably
an employee of petitioner. It was Allan's irresponsible
act of entrusting the wheels of the vehicle to the
inexperienced Funtecha which set into motion the chain
of events leading to the accident resulting in injuries to
Kapunan, Sr. But under the present set of
circumstances, even if the trial court did find Allan
guilty of negligence, such conclusion would not be
binding on Allan. It must be recalled that Allan was
never impleaded in the complaint for damages and
should be considered as a stranger as far as the trial
court's judgment is concerned. It is axiomatic that no
man shall be affected by a proceeding to which he is a
stranger.
WHEREFORE, in view of the foregoing, the decision
under review of the Court of Appeals is hereby SET
ASIDE. The complaint for damages 10 is ordered
DISMISSED as against petitioner Filamer Christian
Institute for lack of cause of action. No costs. LLpr
SO ORDERED.
296
Bidin and Cortes, JJ., concur.
Gutierrez, Jr., J., concurs but limit my concurrence on
the employee-employer relationship to labor law
situations.
Feliciano, J., is on leave.
FILAMER CHRISTIAN INSTITUTE vs.
INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 75112, 17 August 1992, 212 SCRA 637
GUTIERREZ, JR., J p:
The private respondents, heirs of the late Potenciano
Kapunan, seek reconsideration of the decision rendered
by this Court on October 16, 1990 (Filamer Christian
Institute v. Court Appeals, 190 SCRA 477) reviewing the
appellate court's conclusion that there exists an
employer-employee relationship between the petitioner
and its co-defendant Funtecha. The Court ruled that the
petitioner is not liable for the injuries caused by
Funtecha on the grounds that the latter was not an
authorized driver for whose acts the petitioner shall be
directly and primarily answerable, and that Funtecha
was merely a working scholar who, under Section 14,
Rule X, Book III of the Rules and Regulations
Implementing the Labor Code is not considered an
employee of the petitioner.
The private respondents assert that the circumstances
obtaining in the present case call for the application of
Article 2180 of the Civil Code since Funtecha is no
doubt an employee of the petitioner. The private
respondents maintain that under Article 2180 an
injured party shall have recourse against the servant as
well as the petitioner for whom, at the time of the
incident, the servant was performing an act in
furtherance of the interest and for the benefit of the
petitioner. Funtecha allegedly did not steal the school
jeep nor use it for a joy ride without the knowledge of
the school authorities.
After a re-examination of the laws relevant to the facts
found by the trial court and the appellate court, the
Court reconsiders its decision. We reinstate the Court of
Appeals' decision penned by the late Justice Desiderio
Jurado and concurred in by Justices Jose G. Campos, Jr.
and Serafin E. Camilon. Applying Civil Code
provisions, the appellate court affirmed the trial court
decision which ordered the payment of the P20,000.00
liability in the Zenith Insurance Corporation policy,
P10,000.00 moral damages, P4,000.00 litigation and
actual expenses, and P3,000.00 attorney's fees.
It is undisputed that Funtecha was a working student,
being a part-time Janitor and a scholar of petitioner
Filamer. He was, in relation to the school, an employee
even if he was assigned to clean the school premises for
only two (2) hours in the morning of each school day.
297
Having a student driver's license, Funtecha requested
the driver, Allan Masa, and was allowed, to take over
the vehicle while the latter was on his way home one
late afternoon. It is significant to note that the place
where Allan lives is also the house of his father, the
school president, Agustin Masa. Moreover, it is also the
house where Funtecha was allowed free board while he
was a student of Filamer Christian Institute.
Allan Masa turned over the vehicle to Funtecha only
after driving down a road, negotiating a sharp
dangerous curb, and viewing that the road was clear.
(TSN, April 4, 1983, pp. 78-79) According to Allan's
testimony, a fast moving truck with glaring lights
nearly hit them so that they had to swerve to the right
to avoid a collision. Upon swerving, they heard a sound
as if something had bumped against the vehicle, but
they did not stop to check. Actually, the Pinoy jeep
swerved towards the pedestrian, Potenciano Kapunan
who was walking in his lane in the direction against
vehicular traffic, and hit him. Allan affirmed that
Funtecha followed his advise to swerve to the right.
(Ibid., p. 79) At the time of the incident (6:30 P.M.) in
Roxas City, the jeep had only one functioning
headlight.
Allan testified that he was the driver and at the same
time a security guard of the petitioner-school. He
further said that there was no specific time for him to be
off-duty and that after driving the students home at
5:00 in the afternoon, he still had to go back to school
and then drive home using the same vehicle.
Driving the vehicle to and from the house of the school
president where both Allan and Funtecha reside is an
act in furtherance of the interest of the petitioner-
school. Allan's job demands that he drive home the
school jeep so he can use it to fetch students in the
morning of the next school day.
It is indubitable under the circumstances that the school
president had knowledge that the jeep was routinely
driven home for the said purpose. Moreover, it is not
improbable that the school president also had
knowledge of Funtecha's possession of a student
driver's license and his desire to undergo driving
lessons during the time that he was not in his
classrooms.
In learning how to drive while taking the vehicle home
in the direction of Allan's house, Funtecha definitely
was not, having a joy ride. Funtecha was not driving for
the purpose of his enjoyment or for a "frolic of his own"
but ultimately, for the service for which the jeep was
intended by the petitioner school. (See L. Battistoni v.
Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR 722 [1932];
See also Association of Baptists for World Evangelism, Inc. v.
Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]).
Therefore, the Court is constrained to conclude that the
act of Funtecha in taking over the steering wheel was
one done for and in behalf of his employer for which
act the petitioner-school cannot deny any responsibility
by arguing that it was done beyond the scope of his
janitorial duties. The clause "within the scope of their
assigned tasks" for purposes of raising the presumption
of liability of an employer, includes any act done by an
employee, in furtherance of the interests of the
employer or for the account of the employer at the time
of the infliction of the injury or damage. (Manuel Casada,
190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the
employee driving the vehicle derived some benefit
from the act, the existence of a presumptive liability of
the employer is determined by answering the question
of whether or not the servant was at the time of the
accident performing any act in furtherance of his
master's business. (Kohlman v. Hyland, 210 NW 643, 50
ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])
LexLib
Section 14, Rule X, Book III of the Rules implementing
the Labor Code, on which the petitioner anchors its
defense, was promulgated by the Secretary of Labor
and Employment only for the purpose of administering
and enforcing the provisions of the Labor Code on
conditions of employment. Particularly, Rule X of Book
III provides guidelines on the manner by which the
powers of the Labor Secretary shall be exercised; on
what records should be kept, maintained and
preserved; on payroll; and on the exclusion of working
scholars from, and inclusion of resident physicians in
the employment coverage as far as compliance with the
substantive labor provisions on working conditions,
rest periods, and wages, is concerned.
In other words, Rule X is merely a guide to the
enforcement of the substantive law on labor. The Court,
thus, makes the distinction and so holds that Section 14,
Rule X, Book III of the Rules is not the decisive law in a
civil suit for damages instituted by an injured person
during a vehicular accident against a working student
of a school and against the school itself.
The present case does not deal with a labor dispute on
conditions of employment between an alleged
employee and an alleged employer. It invokes a claim
brought by one for damages for injury caused by the
patently negligent acts of a person, against both doer-
employee and his employer. Hence, the reliance on the
implementing rule on labor to disregard the primary
liability of an employer under Article 2180 of the Civil
Code is misplaced. An implementing rule on labor
cannot be used by an employer as a shield to void
liability under the substantive provisions of the Civil
Code.
There is evidence to show that there exists in the
present case an extra-contractual obligation arising
from the negligence or reckless imprudence of a person
"whose acts or omissions are imputable, by a legal
fiction, to other(s) who are in a position to exercise an
absolute or limited control over (him)." (Bahia v. Litonjua
and Leynes, 30 Phil. 624 [1915])
Funtecha is an employee of petitioner Filamer. He need
not have an official appointment for a driver's position
in order that the petitioner may be held responsible for
his grossly negligent act, it being sufficient that the act
of driving at the time of the incident was for the benefit
of the petitioner. Hence, the fact that Funtecha was not
the school driver or was not acting with the scope of his
janitorial duties does not relieve the petitioner of the
burden of rebutting the presumption juris tantum that
there was negligence on its part either in the selection
of a servant or employee, or in the supervision over
him. The petitioner has failed to show proof of its
having exercised the required diligence of a good father
of a family over its employees Funtecha and Allan.
The Court reiterates that supervision includes the
formulation of suitable rules and regulation for the
guidance of its employees and the issuance of proper
instructions intended for the protection of the public
and persons with whom the employer has relations
through his employees. (Bahia v. Litonjua and Leynes,
supra, at p. 628; Phoenix Construction, Inc. v. Intermediate
Appellate Court, 148 SCRA 353 [1987])
An employer is expected to impose upon its employees
the necessary discipline called for in the performance of
any act indispensable to the business and beneficial to
their employer.
In the present case, the petitioner has not shown that it
has set forth such rules and guidelines as would
prohibit any one of its employees from taking control
over its vehicles if one is not the official driver or
prohibiting the driver and son of the Filamer president
from authorizing another employee to drive the school
vehicle. Furthermore, the petitioner has failed to prove
that it had imposed sanctions or warned its employees
against the use of its vehicles by persons other than the
driver.
The petitioner, thus, has an obligation to pay damages
for injury arising from the unskilled manner by which
Funtecha drove the vehicle. (Cangco v. Manila Railroad
Co. 38 Phil. 760, 772 [1918]) In the absence of evidence
that the petitioner had exercised the diligence of a good
father of a family in the supervision of its employees,
the law imposes upon it the vicarious liability for acts
or omissions of its employees. (Umali v. Bacani, 69
SCRA 263 [1976]; Poblete v. Fabros, 93 SCRA 200 [1979];
Kapalaran Bus Liner v. Coronado, 176 SCRA 792 [1989];
Franco v. Intermediate Appellate Court, 178 SCRA 331
[1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA
384 (1989]) The liability of the employer is, under
Article 2180, primary and solidary. However, the
employer shall have recourse against the negligent
employee for whatever damages are paid to the heirs of
the plaintiff.
It is an admitted fact that the actual driver of the school
jeep, Allan Masa, was not made a party defendant in
the civil case for damages. This is quite understandable
considering that as far as the injured pedestrian,
298
plaintiff Potenciano Kapunan, was concerned, it was
Funtecha who was the one driving the vehicle and
presumably was one authorized by the school to drive.
The plaintiff and his heirs should not now be left to
suffer without simultaneous recourse against the
petitioner for the consequent injury caused by a janitor
doing a driving chore for the petitioner even for a short
while. For the purpose of recovering damages under
the prevailing circumstances, it is enough that the
plaintiff and the private respondent heirs were able to
establish the existence of employer-employee
relationship between Funtecha and petitioner Filamer
and the fact that Funtecha was engaged in an act not for
an independent purpose of his own but in furtherance
of the business of his employer. A position of
responsibility on the part of the petitioner has thus been
satisfactorily demonstrated.
WHEREFORE, the motion for reconsideration of the
decision dated October 16, 1990 is hereby GRANTED.
The decision of the respondent appellate court
affirming the trial court decision is REINSTATED.
SO ORDERED.
Feliciano, Bidin, Davide, Jr. and Romero, JJ ., concur.
METRO MANILA TRANSIT CORPORATION vs.
COURT OF APPEALS, ET AL.
G.R. No. 104408, 21 June 1993, 223 SCRA 521
REGALADO, J p:
This appeal calls for a review of the legal validity and
sufficiency of petitioner's invocation of due diligence in
the selection and supervision of employees as its
defense against liability resulting from a vehicular
collision. With the facility by which such a defense can
be contrived and our country having reputedly the
highest traffic accident rate in its geographical region, it
is indeed high time for us to once again address this
matter which poses not only a litigation issue for the
courts but affects the very safety of our streets.
The facts of the case at bar are recounted for us by
respondent court, thus —
"At about six o'clock in the morning
of August 28, 1979, plaintiff-appellant
Nenita Custodio boarded as a paying
passenger a public utility jeepney
with plate No. D7 305 PUJ Pilipinas
1979, then driven by defendant
Agudo Calebag and owned by his co-
defendant Victorino Lamayo, bound
for her work at Dynetics Incorporated
located in Bicutan, Taguig, Metro
Manila, where she then worked as a
machine operator earning P16.25 a
day. While the passenger jeepney
was travelling at (a) fast clip along
299
DBP Avenue, Bicutan, Taguig, Metro
Manila another fast moving vehicle, a
Metro Manila Transit Corp. (MMTC,
for short) bus bearing plate no. 3Z
307 PUB (Philippines) '79 driven by
defendant Godofredo C. Leonardo
was negotiating Honeydew Road,
Bicutan, Taguig, Metro Manila bound
for its terminal at Bicutan. As both
vehicles approached the intersection
of DBP Avenue and Honeydew Road
they failed to slow down and slacken
their speed; neither did they blow
their horns to warn approaching
vehicles. As a consequence, a
collision between them occurred, the
passenger jeepney ramming the left
side portion of the MMTC bus. The
collision impact caused plaintiff-
appellant Nenita Custodio to hit the
front windshield of the passenger
jeepney and (she) was thrown out
therefrom, falling onto the pavement
unconscious with serious physical
injuries. She was brought to the
Medical City Hospital where she
regained consciousness only after one
(1) week. Thereat, she was confined
for twenty-four (24) days, and as a
consequence, she was unable to work
for three and one half months (3
1/2)."
A complaint for damages was filed by herein private
respondent, who being then a minor was assisted by
her parents, against all of therein named defendants
following their refusal to pay the expenses incurred by
the former as a result of the collision.
Said defendants denied all the material allegations in
the complaint and pointed an accusing finger at each
other as being the party at fault. Further, herein
petitioner Metro Manila Transit Corporation (MMTC),
a government-owned corporation and one of the
defendants in the court a quo, along with its driver,
Godofredo Leonardo, contrarily averred in its answer
with cross-claim and counterclaim that the MMTC bus
was driven in a prudent and careful manner by driver
Leonardo and that it was the passenger jeepney which
was driven recklessly considering that it hit the left
middle portion of the MMTC bus, and that it was
defendant Lamayo, the owner of the jeepney and
employer of driver Calebag, who failed to exercise due
diligence in the selection and supervision of employees
and should thus be held solidarily liable for damages
caused to the MMTC bus through the fault and
negligence of its employees.
Defendant Victorino Lamayo, for his part, alleged in his
answer with cross-claim and counterclaim that the
damages suffered by therein plaintiff should be borne
by defendants MMTC and its driver, Godofredo
Leonardo, because the latter's negligence was the sole
and proximate cause of the accident and that MMTC
failed to exercise due diligence in the selection and
supervision of its employees.
By order of the trial court, defendant Calebag was
declared in default for failure to file an answer.
Thereafter, as no amicable settlement was reached
during the pre-trial conference, trial on the merits
ensued with the opposing parties presenting their
respective witnesses and documentary evidence.
Herein private respondent Nenita Custodio, along with
her parents, were presented as witnesses for the
prosecution. In addition, Dr. Edgardo del Mundo, the
attending physician, testified on the cause, nature and
extent of the injuries she sustained as a result of the
vehicular mishap. On the other hand, defendant
MMTC presented as witnesses Godofredo Leonardo,
Christian Bautista and Milagros Garbo. Defendant
Lamayo, however, failed to present any witness.
Milagros Garbo testified that, as a training officer of
MMTC, she was in charge of the selection of the
company's bus drivers, conducting for this purpose a
series of training programs and examinations.
According to her, new applicants for job openings at
MMTC are preliminarily required to submit certain
documents such as National Bureau of Investigation
(NBI) clearance, birth or residence certificate, ID
pictures, certificate or diploma of highest educational
attainment, professional driver's license, and work
experience certification. Re-entry applicants, aside from
the foregoing requirements, are additionally supposed
to submit company clearance for shortages and
damages and revenue performance for the preceding
year. Upon satisfactory compliance with said requisites,
applicants are recommended for and subjected to a
preliminary interview, followed by a record check to
find out whether they are included in the list of
undesirable employees given by other companies.
Thereafter, she continued, if an applicant is found to be
acceptable, a final interview by the Chief Supervisor is
scheduled and followed by a training program which
consists of seminars and actual driving and psycho-
physical tests and X-ray examinations. The seminars,
which last for a total of eighteen (18) days, include
familiarization with assigned routes, existing traffic
rules and regulations, Constabulary Highway Patrol
Group (CHPG) seminar on defensive driving,
preventive maintenance, proper vehicle handling,
interpersonal relationship and administrative rules on
discipline and on-the-job training. Upon completion of
all the seminars and tests, a final clearance is issued, an
employment contract is executed and the driver is
ready to report for duty.
MMTC's Transport Supervisor, Christian Bautista,
testified that it was his duty to monitor the daily
operation of buses in the field, to countercheck the
dispatcher on duty prior to the operation of the buses in
the morning and to see to it that the bus crew follow
written guidelines of the company, which include
seeing to it that its employees are in proper uniform,
briefed in traffic rules and regulations before the start of
duty, fit to drive and, in general, follow other rules and
regulations of the Bureau of Land Transportation as
well as of the company.
The reorganized trial court, in its decision of August 1,
1989, found both drivers of the colliding vehicles
concurrently negligent for non-observance of
appropriate traffic rules and regulations and for failure
to take the usual precautions when approaching an
intersection. As joint tortfeasors, both drivers, as well as
defendant Lamayo, were held solidarily liable for
damages sustained by plaintiff Custodio. Defendant
MMTC, on the bases of the evidence presented was,
however, absolved from liability for the accident on the
ground that it was not only careful and diligent in
choosing and screening applicants for job openings but
was also strict and diligent in supervising its employees
by seeing to it that its employees were in proper
uniforms, briefed in traffic rules and regulations before
the start of duty, and that it checked its employees to
determine whether or not they were positive for alcohol
and followed other rules and regulations and
guidelines of the Bureau of Land Transportation and of
the company.
xxx xxx xxx
Plaintiff's motion to have that portion of the trial court's
decision absolving MMTC from liability reconsidered
having been denied for lack of merit, an appeal was
filed by her with respondent appellate court. After
consideration of the appropriate pleadings on appeal
and finding the appeal meritorious, the Court of
Appeals modified the trial court's decision by holding
MMTC solidarily liable with the other defendants for
the damages awarded by the trial court because of their
concurrent negligence, concluding that while there is
no hard and fast rule as to what constitutes sufficient
evidence to prove that an employer has exercised the
due diligence required of it in the selection and
supervision of its employees, based on the quantum of
evidence adduced the said appellate court was not
disposed to say that MMTC had exercised the diligence
required of a good father of a family in the selection
and supervision of its driver, Godofredo Leonardo.
The Court of Appeals was resolute in its conclusion and
denied the motions for reconsideration of appellee
Custodio and appellant MMTC in a resolution dated
February 17, 1982, thus prompting MMTC to file the
instant petition invoking the review powers of this
Court over the decision of the Court of Appeals, raising
as issues for resolution whether or not (1) the
documentary evidence to support the positive
testimonies of witnesses Garbo and Bautista are still
necessary; (2) the testimonies of witnesses Garbo and
Bautista may still be disturbed on appeal; and (3) the
evidence presented during the trial with respect to the
proof of due diligence of petitioner MMTC in the
300
selection and supervision of its employees, particularly
driver Leonardo, is sufficient.
xxx xxx xxx
1. The first two issues raised by petitioner shall be
correlatively discussed in view of their interrelation.
In its present petition, MMTC insists that the oral
testimonies of its employees who were presented as
witnesses in its behalf sufficiently prove, even without
the presentation of documentary evidence, that driver
Leonardo had complied with all the hiring and
clearance requirements and had undergone all
trainings, tests and examinations preparatory to actual
employment, and that said positive testimonies spell
out the rigid procedure for screening of job applicants
and the supervision of its employees in the field. It
underscored the fact that it had indeed complied with
the measure of diligence in the selection and
supervision of its employees as enunciated in Campo, et
al. vs. Camarote, et al. requiring an employer, in the
exercise of the diligence of a good father of a family, to
carefully examine the applicant for employment as to
his qualifications, experience and record service, and
not merely be satisfied with the possession of a
professional driver's license.
It goes on to say that since the testimonies of these
witnesses were allegedly neither discredited nor
impeached by the adverse party, they should be
believed and not arbitrarily disregarded or rejected nor
disturbed on appeal. It assiduously argues that
inasmuch as there is no law requiring that facts alleged
by petitioner be established by documentary evidence,
the probative force and weight of their testimonies
should not be discredited with the further note that the
lower court having passed upon the relevancy of the
oral testimonies and considered the same as
unrebutted, its consideration should no longer be
disturbed on appeal.
Private respondent, on the other hand, retorts that the
factual findings of respondent court are conclusive
upon the High Court which cannot be burdened with
the task of analyzing and weighing the evidence all
over again.
xxx xxx xxx
A perusal of the same shows that since there is no
dispute as to the finding of concurrent negligence on
the part of the defendant Calebag, the driver of the
passenger jeepney, and co-defendant Leonardo, the bus
driver of petitioner MMTC, both of whom were
solidarily held liable with defendant Lamayo, the
owner of the jeepney, we are spared the necessity of
determining the sufficiency of evidence establishing the
fact of negligence. The contrariety is in the findings of
the two lower courts, and which is the subject of this
present controversy, with regard to the liability of
MMTC as employer of one the erring drivers.
301
The trial court, in absolving MMTC from liability ruled
that —
"On the question as to whether
defendant MMTC was successful in
proving its defense that indeed it had
exercised the due diligence of a good
father of a family in the selection and
supervision of defendant Leonardo,
this Court finds that based on the
evidence presented during the trial,
defendant MMTC was able to prove
that it was not only careful and
diligent in choosing and screening
applicants for job openings but also
strict (and) diligent in supervising its
employees by seeing to it that its
employees were in proper uniforms,
briefed in traffic rules and regulations
before the start of duty, checked
employees to determine whether they
were positive for alcohol and
followed other rules and regulations
and guidelines of the Bureau of Land
Transportation as well as its
company. Having successfully
proven such defense, defendant
MMTC, therefore, cannot be held
liable for the accident.
"Having reached this conclusion, the
Court now holds that defendant
MMTC be totally absolved from
liability and that the complaint
against it be dismissed . . . "
whereas respondent court was of the opinion that —
"It is surprising though that witness
Milagros Garbo did not testify nor
present any evidence that defendant-
appellee's driver, defendant
Godofredo Leonardo has complied
with or has undergone all clearances
and trainings she referred to. The
clearances, result of seminars and
tests which Godofredo Leonardo
submitted and complied with, if any,
were not presented in court despite
the fact that they are obviously in the
possession and control of defendant-
appellee. Instead, it resorted to
generalities. This Court has ruled that
due diligence in (the) selection and
supervision of employee(s) are not
proved by mere testimonies to the
effect that its applicant has complied
with all the company requirements
before one is admitted as an
employee but without proof thereof. .
. ..

"On the part of Christian Bautista, the
transport supervisor of defendant-
appellee, he testified that it is his
duty to monitor the operation of
buses in the field; to countercheck the
dispatchers duty prior to the
operation of the buses in the
morning; to see to it that bus crew
follows written guidelines of the
company (t.s.n., April 29, 1988, 00 4-
5), but when asked to present in court
the alleged written guidelines of the
company he merely stated that he
brought with him a 'wrong
document' and defendant-appellee's
counsel asked for reservation to
present such written guidelines in the
next hearing but the same was (sic)
never presented in court."
A thorough and scrupulous review of the records of
this case reveals that the conclusion of respondent
Court of Appeals is more firmly grounded on
jurisprudence and amply supported by the evidence of
record than that of the court below.
xxx xxx xxx
Petitioner's attempt to prove its diligentissimi patris
familias in the selection and supervision of employees
through oral evidence must fail as it was unable to
buttress the same with any other evidence, object or
documentary, which might obviate the apparent biased
nature of the testimony.
Our view that the evidence for petitioner MMTC falls
short of the required evidentiary quantum as would
convincingly and undoubtedly prove its observance of
the diligence of a good father of a family has its
precursor in the underlying rationale pronounced in the
earlier case of Central Taxicab Corp. vs. Ex-Meralco
Employees Transportation Co., et al., set amidst an almost
identical factual setting, where we held that:
". . . This witness spoke of an
'affidavit of experience' which a
driver-applicant must accomplish
before he is employed by the
company, a written 'time schedule'
for each bus, and a record of the
inspections and thorough checks
pertaining to each bus before it leaves
the car barn; yet no attempt was ever
made to present in evidence any of
these documents, despite the fact that
they were obviously in the possession
and control of the defendant
company.
xxx xxx xxx
"Albert also testified that he kept
records of the preliminary and final
tests given him as well as a record of
the qualifications and experience of
each of the drivers of the company. It
is rather strange, therefore, that he
failed to produce in court the all
important record of Roberto, the
driver involved in this case.
"The failure of the defendant
company to produce in court any
'record' or other documentary proof
tending to establish that it had
exercised all the diligence of a good
father of a family in the selection and
supervision of its drivers and buses,
notwithstanding the calls therefor by
both the trial court and the opposing
counsel, argues strongly against its
pretensions.
"We are fully aware that there is no
hard-and-fast rule on the quantum of
evidence needed to prove due
observance of all the diligence of a
good father of a family as would
constitute a valid defense to the legal
presumption of negligence on the
part of an employer or master whose
employee has by his negligence,
caused damage to another. xxx
(R)educing the testimony of Albert to
its proper proportions, we do not
have enough thrustworthy evidence
left to go by. We are of the considered
opinion, therefore, that the believable
evidence on the degree of case and
diligence that has been exercised in
the selection and supervision of
Roberto Leon y Salazar, is not legally
sufficient to overcome the
presumption of negligence against
the defendant company."
Whether or not the diligence of a good father of a
family has been observed by petitioner is a matter of
proof which under the circumstances in the case at bar
has not been clearly established. It is not felt by the
Court that there is enough evidence on record as would
overturn the presumption of negligence, and for failure
to submit all evidence within its control, assuming the
putative existence thereof, petitioner MMTC must
suffer the consequences of its own inaction and
indifference.
2. In any event, we do not find the evidence
presented by petitioner sufficiently convincing to prove
the diligence of a good father of a family, which for an
employer doctrinally translates into its observance of
due diligence in the selection and supervision of its
employees but which mandate, to use an oft-quoted
302
phrase, is more often honored in the breach than in the
observance.
Petitioner attempted to essay in detail the company's
procedure for screening job applicants and supervising
its employees in the field, through the testimonies of
Milagros Garbo, as its training officer, and Christian
Bautista, as its transport supervisor, both of whom
naturally and expectedly testified for MMTC. It then
concluded with its sweeping pontifications that "thus,
there is no doubt that considering the nature of the
business of petitioner, it would not let any applicant-
drivers to be (sic) admitted without undergoing the
rigid selection and training process with the end (in)
view of protecting the public in general and its
passengers in particular; . . . thus, there is no doubt that
applicant had fully complied with the said
requirements otherwise Garbo should not have allowed
him to undertake the next set of requirements . . . and
the training conducted consisting of seminars and
actual driving tests were satisfactory otherwise he
should have not been allowed to drive the subject
vehicle."
These statements strike us as both presumptuous and
in the nature of petitio principii, couched in generalities
and shorn of any supporting evidence to boost their
verity. As earlier observed, respondent court could not
but express surprise, and thereby its incredulity, that
witness Garbo neither testified nor presented any
evidence that driver Leonardo had complied with or
had undergone all the clearances and trainings she took
pains to recite and enumerate. The supposed
clearances, results of seminars and tests which
Leonardo allegedly submitted and complied with were
never presented in court despite the fact that, if true,
then they were obviously in the possession and control
of petitioner.
The case at bar is clearly within the coverage of Articles
2176 and 2177, in relation to Article 2180, of the Civil
Code provisions on quasi-delicts, as all the elements
thereof are present, to wit: (1) damages suffered by the
plaintiff, (2) fault or negligence of the defendant or
some other person for whose act he must respond, and
(3) the connection of cause and effect between fault or
negligence of the defendant and the damages incurred
by plaintiff. 43 It is to be noted that petitioner was
originally sued as employer of driver Leonardo under
Article 2180, the pertinent parts of which provide that:
"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
damages caused by their employees
and household helpers acting within
303
the scope of their assigned tasks, even
though the former are not engaged in
any business or industry.
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."
The basis of the employer's vicarious liability has been
explained under this ratiocination:
"The responsibility imposed by this article arises by
virtue of a presumption juris tantum of negligence on
the part of the persons made responsible under the
article, derived from their failure to exercise due care
and vigilance over the acts of subordinates to prevent
them from causing damage. Negligence is imputed to
them by law, unless they prove the contrary. Thus, the
last paragraph of the article says that such
responsibility ceases if it is proved that the persons who
might be held responsible under it exercised the
diligence of a good father of a family (diligentissimi
patris familias) to prevent damage. It is clear, therefore,
that it is not representation, nor interest, nor even the
necessity of having somebody else answer for the
damages caused by the persons devoid of personality,
but it is the non-performance of certain duties of
precaution and prudence imposed upon the persons
who become responsible by civil bond uniting the actor
to them, which forms the foundation of such
responsibility."
The above rule is, of course, applicable only where
there is an employer-employee relationship, although it
is not necessary that the employer be engaged in
business or industry. Whether or not engaged in any
business or industry, the employer under Article 2180 is
liable for torts committed by his employees within the
scope of their assigned tasks. But, it is necessary first to
establish the employment relationship. Once this is
done, the plaintiff must show, to hold the employer
liable, that the employee was acting within the scope of
his assigned task when the tort complained of was
committed. It is only then that the defendant, as
employer, may find it necessary to interpose the
defense of due diligence in the selection and
supervision of employees. The diligence of a good
father of a family required to be observed by employers
to prevent damages under Article 2180 refers to due
diligence in the selection and supervision of employees
in order to protect the public.
With the allegation and subsequent proof of negligence
against the defendant driver and of an employer-
employee relation between him and his co-defendant
MMTC in this instance, the case is undoubtedly based
on a quasi-delict under Article 2180. When the
employee causes damage due to his own negligence
while performing his own duties, there arises the juris
tantum presumption that the employer is negligent,
rebuttable only by proof of observance of the diligence
of a good father of a family. For failure to rebut such
legal presumption of negligence in the selection and
supervision of employees, the employer is likewise
responsible for damages, the basis of the liability being
the relationship of pater familias or on the employer's
own negligence.
As early as the case of Gutierrez vs. Gutierrez, and
thereafter, we have consistently held that where the
injury is due to the concurrent negligence of the drivers
of the colliding vehicles, the drivers and owners of the
said vehicles shall be primarily, directly and solidarily
liable for damages and it is immaterial that one action is
based on quasi-delict and the other on culpa contractual,
as the solidarity of the obligation is justified by the very
nature thereof.
It should be borne in mind that the legal obligation of
employers to observe due diligence in the selection and
supervision of employees is not to be considered as an
empty play of words or a mere formalism, as appears to
be the fashion of the times, since the non-observance
thereof actually becomes the basis of their vicarious
liability under Article 2180.
On the matter of selection of employees, Cambo vs.
Camarote, supra, lays down this admonition.
". . .. In order that the owner of a
vehicle may be considered as having
exercised all diligence of a good
father of a family, he should not have
been satisfied with the mere
possession of a professional driver's
license; he should have carefully
examined the applicant for
employment as to his qualifications,
his experience and record of service.
These steps appellant failed to
observe; he has therefore, failed to
exercise all due diligence required of
a good father of a family in the choice
or selection of driver."
Due diligence in the supervision of employees, on the
other hand, includes the formulation of suitable rules
and regulations for the guidance of employees and the
issuance of proper instructions intended for the
protection of the public and persons with whom the
employer has relations through his or its employees
and the imposition of necessary disciplinary measures
upon employees in case of breach or as may be
warranted to ensure the performance of acts
indispensable to the business of and beneficial to their
employer. To this, we add that actual implementation
and monitoring of consistent compliance with said
rules should be the constant concern of the employer,
acting through dependable supervisors who should
regularly report on their supervisory functions.
In order that the defense of due diligence in the
selection and supervision of employees may be deemed
sufficient and plausible, it is not enough to emptily
invoke the existence of said company guidelines and
policies on hiring and supervision. As the negligence of
the employee gives rise to the presumption of
negligence on the part of the employer, the latter has
the burden of proving that it has been diligent not only
in the selection of employees but also in the actual
supervision of their work. The mere allegation of the
existence of hiring procedures and supervisory policies,
without anything more, is decidedly not sufficient to
overcome such presumption.
We emphatically reiterate our holding, as a warning to
all employers, that "(t)he mere formulation of various
company policies on safety without showing that they
were being complied with is not sufficient to exempt
petitioner from liability arising from negligence of its
employees. It is incumbent upon petitioner to show that
in recruiting and employing the erring driver the
recruitment procedures and company policies on
efficiency and safety were followed." Paying lip-service
to these injunctions or merely going through the
motions of compliance therewith will warrant stern
sanctions from the Court.
These obligations, imposed by the law and public
policy in the interests and for the safety of the
commuting public, herein petitioner failed to perform.
Respondent court was definitely correct in ruling that ".
. . due diligence in the selection and supervision of
employee (sic) not proved by mere testimonies to the
effect that its applicant has complied with all the
company requirements before one is admitted as an
employee but without proof thereof." It is further a
distressing commentary on petitioner that it is a
government-owned public utility, maintained by public
funds, and organized for the public welfare.
The Court feels it is necessary to once again stress the
following rationale behind these all-important statutory
and jurisprudential mandates, for it has been observed
that despite its pronouncement in Kapalaran Bus Line vs.
Coronado, et al., supra, there has been little improvement
in the transport situation in the country:
"In requiring the highest possible
degree of diligence from common
carriers and creating a presumption
of negligence against them, the law
compels them to curb the
recklessness of their drivers. While
the immediate beneficiaries of the
standard of extraordinary diligence
are, of course, the passengers and
owners of the cargo carried by a
common carrier, they are not the only
persons that the law seeks to benefit.
For if common carriers carefully
observe the statutory standard of
304
 extraordinary diligence in respect of
their own passengers, they cannot
help but simultaneously benefit
pedestrians and the owners and
passengers of other vehicles who are
equally entitled to the safe and
convenient use of our roads and
highways. The law seeks to stop and
prevent the slaughter and maiming of
people (whether passengers or not)
and the destruction of property
(whether freight or not) on our
highways by buses, the very size and
power of which seem often to inflame
the minds of their drivers. . . .."
Finally, we believe that respondent court acted in the
exercise of sound discretion when it affirmed the trial
court's award, without requiring the payment of
interest thereon as an item of damages just because of
delay in the determination thereof, especially since
private respondent did not specifically pray therefor in
her complaint. Article 2211 of the Civil Code provides
that in quasi-delicts, interest as a part of the damages
may be awarded in the discretion of the court, and not
as a matter of right. We do not perceive that there have
been intentional dilatory maneuvers or any special
circumstances which would justify that additional
award and, consequently, we find no reason to disturb
said ruling.
WHEREFORE, the impugned decision of respondent
Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J. and Nocon, J., concur.
Padilla, J., is on leave.
VALENZUELA vs. COURT OF APPEALS, ET AL.
G.R. Nos. 115024 and 117944, 7 February 1996,
253 SCRA 303
See supra.
JOSE, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. Nos. 118441-42, 18 January 2000, 322 SCRA 25
MENDOZA, J p:
This is a petition for review on certiorari of the decision
1 of the Court of Appeals, reversing the decision of the
Regional Trial Court, Branch 172, Valenzuela, Metro
Manila and ordering petitioners to pay damages for
injuries to persons and damage to property as a result
of a vehicular accident.
The facts are as follows:
Petitioner Manila Central Bus Lines Corporation (MCL)
is the operator-lessee of a public utility bus (hereafter
305
referred to as Bus 203) with plate number NVR-III-TB-
PIL and body number 203. Bus 203 is owned by the
Metro Manila Transit Corporation and is insured with
the Government Service Insurance System.
On February 22, 1985, at around six o’clock in the
morning, Bus 203, then driven by petitioner Armando
Jose, collided with a red Ford Escort driven by John
Macarubo on MacArthur Highway, in Marulas,
Valenzuela, Metro Manila. Bus 203 was bound for
Muntinlupa, Rizal, while the Ford Escort was headed
towards Malanday, Valenzuela on the opposite lane. As
a result of the collision, the left side of the Ford Escort’s
hood was severely damaged while its driver, John
Macarubo, and its lone passenger, private respondent
Rommel Abraham, were seriously injured. The driver
and conductress of Bus 203 rushed Macarubo and
Abraham to the nearby Fatima Hospital where
Macarubo lapsed into a coma. Despite surgery,
Macarubo failed to recover and died five days later.
Abraham survived, but he became blind on the left eye
which had to be removed. In addition, he sustained a
fracture on the forehead and multiple lacerations on the
face, which caused him to be hospitalized for a week.
On March 26, 1985, Rommel Abraham, represented by
his father, Felixberto, instituted Civil Case No. 2206-V-
85 for damages against petitioners MCL and Armando
Jose in the Regional Trial Court, Branch 172,
Valenzuela.
On July 17, 1986, the spouses Jose and Mercedes
Macarubo, parents of the deceased John Macarubo,
filed their own suit for damages in the same trial court,
where it was docketed as Civil Case No. 2428-V-86,
against MCL alone. On the other hand, MCL filed a
third-party complaint against Juanita Macarubo,
registered owner of the Ford Escort on the theory that
John Macarubo was negligent and that he was the
"authorized driver" of Juanita Macarubo. The latter, in
turn, filed a counterclaim for damages against MCL for
the damage to her car. Civil Case No. 2206-V-85 and
Civil Case No. 2428-V-86 were consolidated and later
tried jointly. The facts, as found by the trial court, are as
follows:
In Civil Case No. 2206-V-85, the
Court heard the testimonies that
during the night previous to the
accident of February 22, 1985 at 6:15
a.m., Rommel Abraham and John
Macarubo were at a party. There was
therefore, no sleep for them,
notwithstanding testimony to the
contrary and the service of drinks
cannot be totally discounted. After
the party at 11 p.m., while both
Rommel and John were en route
home to Valenzuela from La Loma,
the car encountered mechanical
trouble and had to be repaired as its
cross-joint was detached. The defect
 of a cross-joint is not minor and
repair thereof would as testified to by
Rommel lasted up to early dawn and
the car started to run only after five
o’clock in the morning. With lack of
sleep, the strains of a party still on
their bodies, and the attention to the
repair coupled with the wait until the
car was ready to run, are potentials in
a driver for possible accident. The
accident happened at 6:15 a.m. when
the physical and mental condition of
the driver John Macarubo was as
expected not too fit for the driving as
he could not anymore control the car.
The desire to be home quick for the
much needed sleep could have
prompted him to overtake the
preceding vehicle.
Indeed the pictures taken of the two
vehicles (Exh. 1, 2 and 3) will clearly
show that the MCL bus was at its
proper lane and not in an overtaking
position while the car driven by John
Macarubo was positioned in a
diagonal manner and crossed the line
of the MCL, which is an indication of
an overtaking act. If it were the bus
that was overtaking at the time, the
car would have been thrown farther
away from the point of the impact.
The court is convinced of the close
supervision and control of MCL over
their drivers, and its exercise of due
diligence in seeing to it that no
recklessness is committed by its
employees, drivers especially, from
the unrebutted testimonies of Cesar
Cainglet.
The Court noted the respective
damages of the two vehicles
especially the point of the impact.
From these damages as shown by the
picture, it can be clearly deduced
which vehicle did the bumping. It
was the car driven by John Macarubo
that hit the MCL which was on its
right and correct lane.
Based on the foregoing facts, the trial court rendered
judgment on September 28, 1989, dismissing both civil
cases against MCL and ruling favorably on its third-
party complaint against Juanita Macarubo, ordering the
latter to pay MCL P54,232.12 as actual damages,
P24,000.00 for lost income, and P10,000.00 as attorney’s
fees.
Rommel Abraham, the Macarubo spouses, and third-
party defendant Juanita Macarubo then appealed to the
Court of Appeals which, on December 21, 1994,
rendered a decision reversing the decision of the trial
court. It held (1) that the trial court erred in
disregarding Rommel Abraham’s uncontroverted
testimony that the collision was due to the fault of the
driver of Bus 203; (2) that the trial court erred in relying
on photographs (Exhs. 1-3) which had been taken an
hour after the collision as within that span of time, the
positions of the vehicles could have been changed; (3)
that the photographs do not show that the Ford Escort
was overtaking another vehicle when the accident
happened and that John Macarubo, its driver, was
negligent; and (4) that MCL failed to make a
satisfactory showing that it exercised due diligence in
the selection and supervision of its driver Armando
Jose. The dispositive portion of the decision reads:
xxx xxx xxx
Hence, this petition for review on certiorari. Petitioners
MCL and Armando Jose raise four issues which boil
down to the question whether it was the driver of Bus
203 or that of the Ford Escort who was at fault for the
collision of the two vehicles.
It is well-settled that a question of fact is to be
determined by the evidence offered to support the
particular contention. In the proceedings below,
petitioners relied mainly on photographs, identified in
evidence as Exhibits 1 to 3, showing the position of the
two vehicles after the collision. On the other hand,
private respondents offered the testimony of Rommel
Abraham to the effect that the collision took place
because Bus 203 invaded their lane.
The trial court was justified in relying on the
photographs rather than on Rommel Abraham’s
testimony which was obviously biased and
unsupported by any other evidence. Physical evidence
is a mute but an eloquent manifestation of truth, and it
ranks high in our hierarchy of trustworthy evidence. In
criminal cases such as murder or rape where the
accused stands to lose his liberty if found guilty, this
Court has, in many occasions, relied principally upon
physical evidence in ascertaining the truth. In People v.
Vasquez, where the physical evidence on record ran
counter to the testimonial evidence of the prosecution
witnesses, we ruled that the physical evidence should
prevail.
In this case, the positions of the two vehicles, as shown
in the photographs (Exhs. 1 to 3) taken by MCL line
inspector Jesus Custodio about an hour and fifteen
minutes after the collision, disputes Abraham’s self-
serving testimony that the two vehicles collided
because Bus 203 invaded the lane of the Ford Escort
and clearly shows that the case is exactly the opposite
of what he claimed happened. Contrary to Abraham’s
testimony, the photographs show quite clearly that Bus
203 was in its proper lane and that it was the Ford
Escort which usurped a portion of the opposite lane.
The three photographs show the Ford Escort positioned
306
diagonally on the highway, with its two front wheels
occupying Bus 203’s lane. As shown by the photograph
marked Exhibit 3, the portion of MacArthur Highway
where the collision took place is marked by a groove
which serves as the center line separating the right from
the left lanes. The photograph shows that the left side of
Bus 203 is about a few feet from the center line and that
the bus is positioned parallel thereto. This negates the
claim that Bus 203 was overtaking another vehicle and,
in so doing, encroached on the opposite lane occupied
by the Ford Escort.
Indeed, Bus 203 could not have been overtaking
another vehicle when the collision happened. It was
filled with passengers, 8 and it was considerably
heavier and larger than the Ford Escort. If it was
overtaking another vehicle, it necessarily had to
accelerate. The acceleration of its speed and its heavy
load would have greatly increased its momentum so
that the impact of the collision would have thrown the
smaller and lighter Ford Escort to a considerable
distance from the point of impact. Exhibit 1, however,
shows that the Ford Escort’s smashed hood was only
about one or two meters from Bus 203’s damaged left
front. If there had been a great impact, such as would
be the case if Bus 203 had been running at a high speed,
the two vehicles should have ended up far from each
other.
In discrediting the physical evidence, the appellate
court made the following observations:
We cannot believe that it was the car
which overtook another vehicle and
proceeded to the lane occupied by the
bus. There was a traffic jam on the
"bus lane" while traffic was light on
the "car lane." Indeed, we find it
inconceivable that the car, occupying the
lane without any traffic, would overtake
and traverse a heavy traffic lane. (Italics
supplied.)
This is correct. However, the fact remains that when the
Ford Escort finally came to a stop, it encroached on the
opposite lane occupied by Bus 203.
Significantly, Rommel Abraham testified that on
February 21, 1985, the night before the accident, he and
John Macarubo went to a friend’s house in La Loma
where they stayed until 11 p.m. Abraham’s explanation
as to why they did not reach Valenzuela until six
o’clock in the morning of the next day when the
accident happened indicates that the Ford Escort
careened and slammed against Bus 203 because of a
mechanical defect. Abraham told the court:
xxx xxx xxx
Thus, as Rommel Abraham himself admitted, the Ford
Escort’s rear cross-joint was cut/detached. This
mechanism controls the movement of the rear tires.
307
Since trouble in the cross-joint affects a car’s
maneuverability, the matter should have been treated
as a serious mechanical problem. In this case, when
asked if they were able to repair the cross-joint,
Abraham said "Ginawaan ng paraan, ma’am," by
simply welding them just so they could reach home.
His testimony indicates that the rear cross-joint was
hastily repaired and that, at most, the kind of repairs
made thereon were merely temporary; just enough to
enable Abraham and Macarubo to reach home. Given
such fact, the likelihood is that while the Ford Escort
might not have been overtaking another vehicle, it
actually strayed into the bus’ lane because of the
defective cross-joint, causing its driver to lose control of
the vehicle.
The appellate court refused to give credence to the
physical evidence on the ground that the photographs
were taken an hour after the collision and that within
such span of time the bus could have been moved
because there was no showing that the driver left the
scene of the accident. This is not correct. Constancia
Gerolada, Bus 203’s conductress, testified that,
immediately after the collision, she and bus driver,
petitioner Armando Jose, took the injured driver and
passenger of the Ford Escort to the Fatima Hospital.
This fact is not disputed by private respondents.
Rommel Abraham mentioned in his appellant’s brief in
the appellate court a sketch of the scene of the accident
allegedly prepared by one Patrolman Kalale, which
shows Bus 203 to be occupying the Ford Escort’s lane.
However, the records of this case do not show that such
a sketch was ever presented in evidence in the trial
court or that Patrolman Kalale was ever presented as a
witness to testify on the sketch allegedly prepared by
him. Under Rule 132, §3 of the Rules on Evidence,
courts cannot consider any evidence unless formally
offered by a party.
Finally, the appellate court also ruled that MCL failed
to make a satisfactory showing that it exercised the
diligence of a good father of a family in the selection
and supervision of its bus driver, Armando Jose. Under
the circumstances of this case, we hold that proof of due
diligence in the selection and supervision of employees
is not required.
The Civil Code provides in pertinent parts:
ARTICLE 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.
ARTICLE 2180. The obligation
imposed in Art. 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.
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.
Thus, the responsibility of employers is premised upon
the presumption of negligence of their employees. As
held in Poblete v. Fabros:
[I]t is such a firmly established
principle, as to have virtually formed
part of the law itself, that the
negligence of the employee gives rise
to the presumption of negligence on
the part of the employer. This is the
presumed negligence in the selection
and supervision of the employee. The
theory of presumed negligence, in
contrast with the American doctrine
of respondeat superior, where the
negligence of the employee is
conclusively presumed to be the
negligence of the employer, is clearly
deducible from the last paragraph of
Article 2180 of the Civil Code which
provides that the responsibility
therein mentioned shall cease if the
employers prove that they observed
all the diligence of a good father of a
family to prevent damages (12
Manresa, 657; Balica vs. Litonjua and
Leynes, 30 Phil. 624; Cangco vs. Manila
Railroad Co., 30 Phil. 768), as observed
in the same cases just cited.
Therefore, before the presumption of
the employer’s negligence in the
selection and supervision of its
employees can arise, the negligence
of the employee must first be
established. While the allegations of
negligence against the employee and
that of an employer-employee
relation in the complaint are enough
to make out a case of quasi-delict
under Art. 2180 of the Civil Code, the
failure to prove the employee’s
negligence during the trial is fatal to
proving the employer’s vicarious
liability. In this case, private
respondents failed to prove their
allegation of negligence against
driver Armando Jose who, in fact,
was acquitted in the case for criminal
negligence arising from the same
incident.
For the foregoing reasons, we hold that the appellate
court erred in holding petitioners liable to private
respondents. The next question then is whether, as the
trial court held, private respondent Juanita Macarubo is
liable to petitioners.
Article 2180 of the Civil Code makes the persons
specified therein responsible for the quasi-delicts of
others. The burden is upon MCL to prove that Juanita
Macarubo is one of those specified persons who are
vicariously liable for the negligence of the deceased
John Macarubo.
In its third-party complaint, MCL alleged that Juanita
Macarubo was the registered owner of the Ford Escort
car and that John Macarubo was the "authorized driver"
of the car. Nowhere was it alleged that John Macarubo
was the son, ward, employee or pupil of private
respondent Juanita Macarubo so as to make the latter
vicariously liable for the negligence of John Macarubo.
The allegation that John Macarubo was "the authorized
driver" of the Ford Escort is not equivalent to an
allegation that he was an employee of Juanita
Macarubo. That John Macarubo was the "authorized
driver" of the car simply means that he drove the Ford
Escort with the permission of Juanita Macarubo.
Nor did MCL present any evidence to prove that
Juanita Macarubo was the employer of John Macarubo
or that she is in any way liable for John Macarubo’s
negligence under Art. 2180 of the Civil Code. For
failure to discharge its burden, MCL’s third-party
complaint should be dismissed.
WHEREFORE, the decision of the Court of Appeals is
REVERSED and the complaints filed in Civil Cases Nos.
2206-V-85 and 24428-V-86 against Manila Central Bus
Lines and Armando Jose, as well as the third-party
complaint filed in Civil Case No. 2206-V-85 against
Juanita Macarubo, are hereby DISMISSED.
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ.,
concur.
YAMBAO vs. ZUÑIGA, ET AL.
G.R. No. 146173, 11 December 2003, 418 SCRA 266
QUISUMBING, J p:
308
This petition for review on certiorari seeks to reverse
and set aside the decision of the Court of Appeals,
dated September 8, 2000, in CA-G.R. CV No. 52275. The
appellate court affirmed the judgment of the Regional
Trial Court (RTC) of Malolos City, Bulacan, Branch 8, in
Civil Case No. 581-M-92, finding herein petitioner,
among others, liable for the untimely death of
Herminigildo Zuñiga in a vehicular accident and
ordering her to indemnify his legal heirs, the
respondents herein. Also challenged in this petition is
the resolution of the Court of Appeals, dated November
27, 2000, denying the petitioner's Motion for
Reconsideration.
Petitioner Cecilia Yambao is the registered owner of
"Lady Cecil and Rome Trans" passenger bus with Plate
No. CVK 606, with a public transport franchise to ply
the Novaliches-via Quirino-Alabang route.
The respondents are the legal heirs of the late
Herminigildo Zuñiga. Melchorita Zuñiga is the
surviving spouse, while Leovigildo, Reginaldo,
Herminigildo, Jr., and Lovely Emily are their children.
The facts, as established by the trial court and affirmed
by the appellate court, are as follows:
At around 3:30 p.m. of May 6, 1992, the bus owned by
the petitioner was being driven by her driver, one
Ceferino G. Venturina along the northbound lane of
Epifanio delos Santos Avenue (EDSA), within the
vicinity of Bagong Barrio, Kalookan City. With
Venturina was the bus conductor, Fernando
Dumaliang. Suddenly, the bus bumped Herminigildo
Zuñiga, a pedestrian. Such was the force of the impact
that the left side of the front windshield of the bus was
cracked. Zuñiga was rushed to the Quezon City
General Hospital where he was given medical
attention, but due to the massive injuries sustained, he
succumbed shortly thereafter.
Private respondents, as heirs of the victim, filed a
Complaint 4 against petitioner and her driver,
Venturina, for damages, docketed as Civil Case No.
581-M-92 at the RTC of Malolos City. The complaint
essentially alleged that Venturina drove the bus in a
reckless, careless and imprudent manner, in violation of
traffic rules and regulations, without due regard to
public safety, thus resulting in the victim's premature
death.
In her Answer, the petitioner vehemently denied the
material allegations of the complaint. She tried to shift
the blame for the accident upon the victim, theorizing
that Herminigildo bumped into her bus, while avoiding
an unidentified woman who was chasing him. She
further alleged that she was not liable for any damages
because as an employer, she exercised the proper
diligence of a good father of a family, both in the
selection and supervision of her bus driver.
309
On September 8, 1995, the trial court rendered
judgment, the dispositive portion of which reads:
xxx xxx xxx
In finding for the respondents herein, the trial court
observed:
[T]he allegations and evidence
presented by the defendants that it
was the victim Herminigildo Zuñiga
who bumped the bus owned by
defendant Cecilia Yambao and her
husband . . . is incredible if not
preposterous. No sane person would
bump his head or body against a
running bus along a big highway like
EDSA at Bagong Barrio, Caloocan
City and neither did any of the
defendants presented (sic) any
evidence or proof to show that the
victim was mentally deranged at the
time of the accident and the
presumption therefore is that he was
in his normal senses.
In holding the petitioner liable for Herminigildo's
death, the trial court applied Article 1756 7 of the Civil
Code, observing that petitioner had failed to prove that
she observed the diligence required by Articles 1733 8
and 1755 9 of the said Code.
Dissatisfied, Yambao filed an appeal with the Court of
Appeals, docketed as CA-G.R. CV No. 52275, faulting
the trial court for failing to appreciate that: (a) it was the
victim who ran into her bus, and (b) she had exercised
the proper diligence of a bonus pater familias in the
selection and supervision of her employee, the driver of
said bus.
On September 8, 2000, the Court of Appeals decided
CA-G.R. CV No. 52275 as follows:
xxx xxx xxx
While sustaining the trial court's findings that
Venturina had been reckless and negligent in driving
the petitioner's bus, thus hitting the victim with fatal
results, the appellate court, however, found the trial
court's reliance on Articles 1755 and 1756 of the Civil
Code misplaced. It held that this was a case of quasi-
delict, there being no pre-existing contractual
relationship between the parties. Hence, the law on
common carriers was inapplicable. The court a quo then
found the petitioner directly and primarily liable as
Venturina's employer pursuant to Article 2180 of the
Civil Code as she failed to present evidence to prove
that she has observed the diligence of a good father of a
family in the selection and supervision of her
employees.
Yambao then duly moved for reconsideration, but her
motion was denied for want of merit.
xxx xxx xxx
At the outset, we must state that the first issue raised by
the petitioner is a factual one. 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 our jurisdiction is limited to reviewing errors of law.
The resolution of factual issues is the function of the
trial court and its findings on these matters are, as a
general rule, binding on this Court, more so where
these have been affirmed by the Court of Appeals. We
have carefully examined and weighed the petitioner's
arguments on the first issue submitted, as well as the
evidence on record, and find no cogent reason to
disregard the cited general rule, much less to reverse
the factual findings of the trial court as upheld by the
court a quo. Hence, we sustain the trial court's finding,
as affirmed by the Court of Appeals, that it was
Venturina's reckless and imprudent driving of
petitioner's bus, which is the proximate cause of the
victim's death.
To our mind, therefore, the only issue before the Court
properly is whether petitioner exercised the diligence of
a good father of a family in the selection and
supervision of her employees, thus absolving her from
any liability.
Petitioner contends that as an employer, she observed
the proper diligence of a good father of a family, both in
the selection and supervision of her driver and
therefore, is relieved from any liability for the latter's
misdeed. To support her claim, she points out that
when Venturina applied with her as a driver in January
1992, she required him to produce not just his driver's
license, but also clearances from the National Bureau of
Investigation (NBI), the Philippine National Police, and
the barangay where he resides. She also required him to
present his Social Security System (SSS) Number prior
to accepting him for employment. She likewise stresses
that she inquired from Venturina's previous employer
about his employment record, and only hired him after
it was shown to her satisfaction that he had no blot
upon his record.
The petitioner's arguments ring hollow and fail to sway
this Court.
The law governing petitioner's liability, as the employer
of bus driver Venturina, is Article 2180 of the Civil
Code, the full text of which reads:
Art. 2180. The obligation
imposed by Article 2176 17 is
demandable not only for one's own
acts or omissions, but also for those of
persons for whom one is responsible.
The father and, in case of his death or
incapacity, the mother, are
responsible for the damages caused
by the minor children who live in
their company.
Guardians are liable for damages
caused by the minors or incapacitated
persons who are under their
authority and live in their company.
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.
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.
The State is responsible in like
manner when it acts through a
special agent; but not when the
damage has been caused by the
official to whom the task done
properly pertains, in which case what
is provided in Article 2176 shall be
applicable.
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.
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.
(Italics ours).
The "diligence of a good father" referred to in the last
paragraph of the aforecited statute means diligence in
the selection and supervision of employees. Thus, when
an employee, while performing his duties, causes
damage to persons or property due to his own
negligence, there arises the juris tantum presumption
that the employer is negligent, either in the selection of
the employee or in the supervision over him after the
selection. For the employer to avoid the solidary
liability for a tort committed by his employee, an
employer must rebut the presumption by presenting
adequate and convincing proof that in the selection and
supervision of his employee, he or she exercises the
care and diligence of a good father of a family. In the
310
instant case, we find that petitioner has failed to rebut
the presumption of negligence on her part.
Petitioner's claim that she exercised due diligence in the
selection and supervision of her driver, Venturina,
deserves but scant consideration. Her allegation that
before she hired Venturina she required him to submit
his driver's license and clearances is worthless, in view
of her failure to offer in evidence certified true copies of
said license and clearances. Bare allegations,
unsubstantiated by evidence, are not equivalent to
proof under the rules of evidence. Moreover, as the
court a quo aptly observed, petitioner contradicts
herself. She declared that Venturina applied with her
sometime in January 1992 and she then required him to
submit his license and clearances. However, the record
likewise shows that she did admit that Venturina
submitted the said requirements only on May 6, 1992,
or on the very day of the fatal accident itself (italics for
emphasis). In other words, petitioner's own admissions
clearly and categorically show that she did not exercise
due diligence in the selection of her bus driver.
In any case, assuming arguendo that Venturina did
submit his license and clearances when he applied with
petitioner in January 1992, the latter still fails the test of
due diligence in the selection of her bus driver. Case
law teaches that for an employer to have exercised the
diligence of a good father of a family, he should not be
satisfied with the applicant's mere possession of a
professional driver's license; he must also carefully
examine the applicant for employment as to his
qualifications, his experience and record of service.
Petitioner failed to present convincing proof that she
went to this extent of verifying Venturina's
qualifications, safety record, and driving history. The
presumption juris tantum that there was negligence in
the selection of her bus driver, thus, remains
unrebutted.
Nor did petitioner show that she exercised due
supervision over Venturina after his selection. For as
pointed out by the Court of Appeals, petitioner did not
present any proof that she drafted and implemented
training programs and guidelines on road safety for her
employees. In fact, the record is bare of any showing
that petitioner required Venturina to attend periodic
seminars on road safety and traffic efficiency. Hence,
petitioner cannot claim exemption from any liability
arising from the recklessness or negligence of
Venturina.
In sum, petitioner's liability to private respondents for
the negligent and imprudent acts of her driver,
Venturina, under Article 2180 of the Civil Code is both
manifest and clear. Petitioner, having failed to rebut the
legal presumption of negligence in the selection and
supervision of her driver, is responsible for damages,
the basis of the liability being the relationship of pater
familias or on the employer's own negligence. 23 Thus,
this Court has no option but to uphold the ruling of the
appellate court.
311
WHEREFORE, the instant petition is DENIED. The
assailed decision of the Court of Appeals, dated
September 8, 2000, in CA-G.R. CV No. 52275, as well as
its resolution dated November 27, 2000, denying
petitioner Cecilia Yambao's motion for reconsideration
are hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr., and Tinga, JJ .,
concur.
FILIPINAS BROADCASTING NETWORK, INC.
vs. AGO MEDICAL AND EDUCATIONAL CENTER,
ET AL.
G.R. No. 141994, 17 January 2005, 448 SCRA 413
CARPIO, J p:
The Case
This petition for review assails the 4 January 1999
Decision and 26 January 2000 Resolution of the Court of
Appeals in CA-G.R. CV No. 40151. The Court of
Appeals affirmed with modification the 14 December
1992 Decision of the Regional Trial Court of Legazpi
City, Branch 10, in Civil Case No. 8236. The Court of
Appeals held Filipinas Broadcasting Network, Inc. and
its broadcasters Hermogenes Alegre and Carmelo Rima
liable for libel and ordered them to solidarily pay Ago
Medical and Educational Center-Bicol Christian College
of Medicine moral damages, attorney's fees and costs of
suit.
The Antecedents
"Exposé" is a radio documentary program hosted by
Carmelo 'Mel' Rima ("Rima") and Hermogenes ‘Jun'
Alegre ("Alegre"). Exposé is aired every morning over
DZRC-AM which is owned by Filipinas Broadcasting
Network, Inc. ("FBNI"). "Exposé" is heard over Legazpi
City, the Albay municipalities and other Bicol areas.
In the morning of 14 and 15 December 1989, Rima and
Alegre exposed various alleged complaints from
students, teachers and parents against Ago Medical and
Educational Center-Bicol Christian College of Medicine
("AMEC") and its administrators. Claiming that the
broadcasts were defamatory, AMEC and Angelita Ago
("Ago"), as Dean of AMEC's College of Medicine, filed a
complaint for damages against FBNI, Rima and Alegre
on 27 February 1990. Quoted are portions of the
allegedly libelous broadcasts:
JUN ALEGRE:
Let us begin with the less
burdensome: if you have children
taking medical course at AMEC-
BCCM, advise them to pass all
subjects because if they fail in any
subject they will repeat their year
level, taking up all subjects including
those they have passed already.
Several students had approached me
stating that they had consulted with
the DECS which told them that there
is no such regulation. If [there] is no
such regulation why is AMEC doing
the same?
xxx xxx xxx
Second: Earlier AMEC students in
Physical Therapy had complained
that the course is not recognized by
DECS. . . .
Third: Students are required to take
and pay for the subject even if the
subject does not have an instructor —
such greed for money on the part of
AMEC's administration. Take the
subject Anatomy: students would
pay for the subject upon enrolment
because it is offered by the school.
However there would be no
instructor for such subject. Students
would be informed that course would
be moved to a later date because the
school is still searching for the
appropriate instructor.
xxx xxx xxx
It is a public knowledge that the Ago
Medical and Educational Center has
survived and has been surviving for
the past few years since its inception
because of funds support from
foreign foundations. If you will take a
look at the AMEC premises you'll
find out that the names of the
buildings there are foreign
soundings. There is a McDonald Hall.
Why not Jose Rizal or Bonifacio Hall?
That is a very concrete and
undeniable evidence that the support
of foreign foundations for AMEC is
substantial, isn't it? With the report
which is the basis of the expose in
DZRC today, it would be very easy
for detractors and enemies of the Ago
family to stop the flow of support of
foreign foundations who assist the
medical school on the basis of the
latter's purpose. But if the purpose of
the institution (AMEC) is to deceive
students at cross purpose with its
reason for being it is possible for
these foreign foundations to lift or
suspend their donations temporarily.
xxx xxx xxx
On the other hand, the administrators
of AMEC-BCCM, AMEC Science
High School and the AMEC-Institute
of Mass Communication in their
effort to minimize expenses in terms
of salary are absorbing or continues
to accept "rejects". For example how
many teachers in AMEC are former
teachers of Aquinas University but
were removed because of
immorality? Does it mean that the
present administration of AMEC
have the total definite moral
foundation from catholic
administrator of Aquinas University.
I will prove to you my friends, that
AMEC is a dumping ground,
garbage, not merely of moral and
physical misfits. Probably they only
qualify in terms of intellect. The Dean
of Student Affairs of AMEC is Justita
Lola, as the family name implies. She
is too old to work, being an old
woman. Is the AMEC administration
exploiting the very [e]nterprising or
compromising and undemanding
Lola? Could it be that AMEC is just
patiently making use of Dean Justita
Lola were if she is very old. As in
atmospheric situation — zero
visibility — the plane cannot land,
meaning she is very old, low pay
follows. By the way, Dean Justita Lola
is also the chairman of the committee
on scholarship in AMEC. She had
retired from Bicol University a long
time ago but AMEC has patiently
made use of her.
xxx xxx xxx
MEL RIMA:
. . . My friends based on the expose,
AMEC is a dumping ground for
moral and physically misfit people.
What does this mean? Immoral and
physically misfits as teachers.
May I say I'm sorry to Dean Justita
Lola. But this is the truth. The truth is
this, that your are no longer fit to
teach. You are too old. As an aviation,
your case is zero visibility. Don't
insist.
. . . Why did AMEC still absorb her as
a teacher, a dean, and chairman of the
scholarship committee at that. The
reason is practical cost saving in
312
 salaries, because an old person is not
fastidious, so long as she has money
to buy the ingredient of beetle juice.
The elderly can get by — that's why
she (Lola) was taken in as Dean.
xxx xxx xxx
. . . On our end our task is to attend to
the interests of students. It is likely
that the students would be influenced
by evil. When they become members
of society outside of campus will be
liabilities rather than assets. What do
you expect from a doctor who while
studying at AMEC is so much
burdened with unreasonable
imposition? What do you expect from
a student who aside from peculiar
problems — because not all students
are rich — in their struggle to
improve their social status are even
more burdened with false
regulations. . . . (Emphasis supplied)
The complaint further alleged that AMEC is a reputable
learning institution. With the supposed exposés, FBNI,
Rima and Alegre "transmitted malicious imputations,
and as such, destroyed plaintiffs' (AMEC and Ago)
reputation." AMEC and Ago included FBNI as
defendant for allegedly failing to exercise due diligence
in the selection and supervision of its employees,
particularly Rima and Alegre.
On 18 June 1990, FBNI, Rima and Alegre, through Atty.
Rozil Lozares, filed an Answer alleging that the
broadcasts against AMEC were fair and true. FBNI,
Rima and Alegre claimed that they were plainly
impelled by a sense of public duty to report the
"goings-on in AMEC, [which is] an institution imbued
with public interest."
Thereafter, trial ensued. During the presentation of the
evidence for the defense, Atty. Edmundo Cea,
collaborating counsel of Atty. Lozares, filed a Motion to
Dismiss on FBNI's behalf. The trial court denied the
motion to dismiss. Consequently, FBNI filed a separate
Answer claiming that it exercised due diligence in the
selection and supervision of Rima and Alegre. FBNI
claimed that before hiring a broadcaster, the
broadcaster should (1) file an application; (2) be
interviewed; and (3) undergo an apprenticeship and
training program after passing the interview. FBNI
likewise claimed that it always reminds its broadcasters
to "observe truth, fairness and objectivity in their
broadcasts and to refrain from using libelous and
indecent language." Moreover, FBNI requires all
broadcasters to pass the Kapisanan ng mga Brodkaster
sa Pilipinas ("KBP") accreditation test and to secure a
KBP permit.
313
On 14 December 1992, the trial court rendered a
Decision 12 finding FBNI and Alegre liable for libel
except Rima. The trial court held that the broadcasts are
libelous per se. The trial court rejected the broadcasters'
claim that their utterances were the result of straight
reporting because it had no factual basis. The
broadcasters did not even verify their reports before
airing them to show good faith. In holding FBNI liable
for libel, the trial court found that FBNI failed to
exercise diligence in the selection and supervision of its
employees.
In absolving Rima from the charge, the trial court ruled
that Rima's only participation was when he agreed with
Alegre's exposé. The trial court found Rima's statement
within the "bounds of freedom of speech, expression,
and of the press." The dispositive portion of the
decision reads:
xxx xxx xxx
Both parties, namely, FBNI, Rima and Alegre, on one
hand, and AMEC and Ago, on the other, appealed the
decision to the Court of Appeals. The Court of Appeals
affirmed the trial court's judgment with modification.
The appellate court made Rima solidarily liable with
FBNI and Alegre. The appellate court denied Ago's
claim for damages and attorney's fees because the
broadcasts were directed against AMEC, and not
against her. The dispositive portion of the Court of
Appeals' decision reads:
xxx xxx xxx
The Court's Ruling
We deny the petition.
This is a civil action for damages as a result of the
allegedly defamatory remarks of Rima and Alegre
against AMEC. While AMEC did not point out clearly
the legal basis for its complaint, a reading of the
complaint reveals that AMEC's cause of action is based
on Articles 30 and 33 of the Civil Code. Article 30
authorizes a separate civil action to recover civil
liability arising from a criminal offense. On the other
hand, Article 33 particularly provides that the injured
party may bring a separate civil action for damages in
cases of defamation, fraud, and physical injuries.
AMEC also invokes Article 19 20 of the Civil Code to
justify its claim for damages. AMEC cites Articles 2176
and 2180 of the Civil Code to hold FBNI solidarily liable
with Rima and Alegre.
xxx xxx xxx
IV.
Whether FBNI is solidarily liable with Rima and Alegre
for moral damages, attorney's fees and costs of suit
FBNI contends that it is not solidarily liable with Rima
and Alegre for the payment of damages and attorney's
fees because it exercised due diligence in the selection
and supervision of its employees, particularly Rima and
Alegre. FBNI maintains that its broadcasters, including
Rima and Alegre, undergo a "very regimented process"
before they are allowed to go on air. "Those who apply
for broadcaster are subjected to interviews,
examinations and an apprenticeship program."
FBNI further argues that Alegre's age and lack of
training are irrelevant to his competence as a
broadcaster. FBNI points out that the "minor
deficiencies in the KBP accreditation of Rima and
Alegre do not in any way prove that FBNI did not
exercise the diligence of a good father of a family in
selecting and supervising them." Rima's accreditation
lapsed due to his non-payment of the KBP annual fees
while Alegre's accreditation card was delayed allegedly
for reasons attributable to the KBP Manila Office. FBNI
claims that membership in the KBP is merely voluntary
and not required by any law or government regulation.
FBNI's arguments do not persuade us.
The basis of the present action is a tort. Joint tort feasors
are jointly and severally liable for the tort which they
commit. Joint tort feasors are all the persons who
command, instigate, promote, encourage, advise,
countenance, cooperate in, aid or abet the commission
of a tort, or who approve of it after it is done, if done for
their benefit. Thus, AMEC correctly anchored its cause
of action against FBNI on Articles 2176 and 2180 of the
Civil Code.
As operator of DZRC-AM and employer of Rima and
Alegre, FBNI is solidarily liable to pay for damages
arising from the libelous broadcasts. As stated by the
Court of Appeals, "recovery for defamatory statements
published by radio or television may be had from the
owner of the station, a licensee, the operator of the
station, or a person who procures, or participates in, the
making of the defamatory statements." An employer
and employee are solidarily liable for a defamatory
statement by the employee within the course and scope
of his or her employment, at least when the employer
authorizes or ratifies the defamation. In this case, Rima
and Alegre were clearly performing their official duties
as hosts of FBNI's radio program Exposé when they
aired the broadcasts. FBNI neither alleged nor proved
that Rima and Alegre went beyond the scope of their
work at that time. There was likewise no showing that
FBNI did not authorize and ratify the defamatory
broadcasts.
Moreover, there is insufficient evidence on record that
FBNI exercised due diligence in the selection and
supervision of its employees, particularly Rima and
Alegre. FBNI merely showed that it exercised diligence
in the selection of its broadcasters without introducing
any evidence to prove that it observed the same
diligence in the supervision of Rima and Alegre. FBNI
did not show how it exercised diligence in supervising
its broadcasters. FBNI's alleged constant reminder to its
broadcasters to "observe truth, fairness and objectivity
and to refrain from using libelous and indecent
language" is not enough to prove due diligence in the
supervision of its broadcasters. Adequate training of
the broadcasters on the industry's code of conduct,
sufficient information on libel laws, and continuous
evaluation of the broadcasters' performance are but a
few of the many ways of showing diligence in the
supervision of broadcasters.
FBNI claims that it "has taken all the precaution in the
selection of Rima and Alegre as broadcasters, bearing in
mind their qualifications." However, no clear and
convincing evidence shows that Rima and Alegre
underwent FBNI's "regimented process" of application.
Furthermore, FBNI admits that Rima and Alegre had
deficiencies in their KBP accreditation, which is one of
FBNI's requirements before it hires a broadcaster.
Significantly, membership in the KBP, while voluntary,
indicates the broadcaster's strong commitment to
observe the broadcast industry's rules and regulations.
Clearly, these circumstances show FBNI's lack of
diligence in selecting and supervising Rima and Alegre.
Hence, FBNI is solidarily liable to pay damages
together with Rima and Alegre.
WHEREFORE, we DENY the instant petition. We
AFFIRM the Decision of 4 January 1999 and Resolution
of 26 January 2000 of the Court of Appeals in CA-G.R.
CV No. 40151 with the MODIFICATION that the award
of moral damages is reduced from P300,000 to P150,000
and the award of attorney's fees is deleted.
Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago and
Azcuna, JJ., concur.
ESTACION vs. BERNARDO, ET AL.
G.R. No. 144723, 27 February 2006, 483 SCRA 222
See supra.
MERCURY DRUG CORPORATION, ET AL. vs.
SPOUSES HUANG, ET AL.
G.R. No. 172122, 22 June 2007, 525 SCRA 427
PUNO, C.J p:
On appeal are the Decision and Resolution of the Court
of Appeals in CA-G.R. CV No. 83981, dated February
16, 2006 and March 30, 2006, respectively which
affirmed with modification the Decision 3 of the
Regional Trial Court (RTC) of Makati City, dated
September 29, 2004. The trial court found petitioners
jointly and severally liable to pay respondents damages
for the injuries sustained by respondent Stephen
Huang, son of respondent spouses Richard and Carmen
Huang.
314
First, the facts:
Petitioner Mercury Drug Corporation (Mercury Drug)
is the registered owner of a six-wheeler 1990 Mitsubishi
Truck with plate number PRE 641 (truck). It has in its
employ petitioner Rolando J. del Rosario as driver.
Respondent spouses Richard and Carmen Huang are
the parents of respondent Stephen Huang and own the
red 1991 Toyota Corolla GLI Sedan with plate number
PTT 775 (car).
These two vehicles figured in a road accident on
December 20, 1996 at around 10:30 p.m. within the
municipality of Taguig, Metro Manila. Respondent
Stephen Huang was driving the car, weighing 1,450 kg.,
while petitioner Del Rosario was driving the truck,
weighing 14,058 kg. Both were traversing the C-5
Highway, north bound, coming from the general
direction of Alabang going to Pasig City. The car was
on the left innermost lane while the truck was on the
next lane to its right, when the truck suddenly swerved
to its left and slammed into the front right side of the
car. The collision hurled the car over the island where it
hit a lamppost, spun around and landed on the
opposite lane. The truck also hit a lamppost, ran over
the car and zigzagged towards, and finally stopped in
front of Buellah Land Church.
At the time of the accident, petitioner Del Rosario only
had a Traffic Violation Receipt (TVR). His driver's
license had been confiscated because he had been
previously apprehended for reckless driving.
The car, valued at P300,000.00, was a total wreck.
Respondent Stephen Huang sustained massive injuries
to his spinal cord, head, face, and lung. Despite a series
of operations, respondent Stephen Huang is paralyzed
for life from his chest down and requires continuous
medical and rehabilitation treatment.
Respondents fault petitioner Del Rosario for
committing gross negligence and reckless imprudence
while driving, and petitioner Mercury Drug for failing
to exercise the diligence of a good father of a family in
the selection and supervision of its driver.
In contrast, petitioners allege that the immediate and
proximate cause of the accident was respondent
Stephen Huang's recklessness. According to petitioner
Del Rosario, he was driving on the left innermost lane
when the car bumped the truck's front right tire. The
truck then swerved to the left, smashed into an electric
post, crossed the center island, and stopped on the
other side of the highway. The car likewise crossed over
the center island and landed on the same portion of C-
5. Further, petitioner Mercury Drug claims that it
exercised due diligence of a good father of a family in
the selection and supervision of all its employees.
The trial court, in its Decision dated September 29, 2004,
found petitioners Mercury Drug and Del Rosario jointly
and severally liable to pay respondents actual,
315
compensatory, moral and exemplary damages,
attorney's fees, and litigation expenses. The dispositive
portion reads:
xxx xxx xxx
On February 16, 2006, the Court of Appeals affirmed
the decision of the trial court but reduced the award of
moral damages to P1,000,000.00. The appellate court
also denied the motion for reconsideration filed by
petitioners.
Hence, this appeal.
xxx xxx xxx
We affirm the findings of the trial court and the
appellate court that petitioner Del Rosario was
negligent. The evidence does not support petitioners'
claim that at the time of the accident, the truck was at
the left inner lane and that it was respondent Stephen
Huang's car, at its right, which bumped the right front
side of the truck. Firstly, petitioner Del Rosario could
not precisely tell which part of the truck was hit by the
car, 6 despite the fact that the truck was snub-nosed
and a lot higher than the car. Petitioner Del Rosario
could not also explain why the car landed on the
opposite lane of C-5 which was on its left side. He said
that "the car did not pass in front of him after it hit him
or under him or over him or behind him." If the truck
were really at the left lane and the car were at its right,
and the car hit the truck at its front right side, the car
would not have landed on the opposite side, but would
have been thrown to the right side of the C-5 Highway.
Noteworthy on this issue is the testimony of Dr. Marlon
Rosendo H. Daza, an expert in the field of physics. He
conducted a study based on the following assumptions
provided by respondents:
1. Two vehicles collided;
2. One vehicle is ten times heavier, more massive than
the other;
3. Both vehicles were moving in the same direction
and at the same speed of about 85 to 90 kilometers
per hour;
4. The heavier vehicle was driving at the innermost
left lane, while the lighter vehicle was at its right.
Dr. Daza testified that given the foregoing assumptions,
if the lighter vehicle hits the right front portion of the
heavier vehicle, the general direction of the light vehicle
after the impact would be to the right side of the heavy
vehicle, not the other way around. The truck, he
opined, is more difficult to move as it is heavier. It is
the car, the lighter vehicle, which would move to the
right of, and away from the truck. Thus, there is very
little chance that the car will move towards the opposite
side, i.e., to the left of the truck.
Dr. Daza also gave a further study on the basis of the
same assumptions except that the car is on the left side
of the truck, in accordance with the testimony of
respondent Stephen Huang. Dr. Daza concluded that
the general direction of the car after impact would be to
the left of the truck. In this situation, the middle island
against which the car was pinned would slow down the
car, and enable the truck to catch up and hit the car
again, before running over it.
To support their thesis, petitioners tried to show the
damages that the truck sustained at its front right side.
The attempt does not impress. The photographs
presented were taken a month after the accident, and
Rogelio Pantua, the automechanic who repaired the
truck and authenticated the photographs, admitted that
there were damages also on the left side of the truck.
Worse still, petitioner Del Rosario further admitted that
after the impact, he lost control of the truck and failed
to apply his brakes. Considering that the car was
smaller and lighter than the six-wheeler truck, the
impact allegedly caused by the car when it hit the truck
could not possibly be so great to cause petitioner to lose
all control that he failed to even step on the brakes. He
testified, as follows:
ATTY. DIAZ:
May I proceed, Your Honor. You
were able to apply the brakes,
were you sir?
WITNESS:
No more, sir, because I went
over the island.
ATTY. DIAZ:
Because as you said you lost
control, correct sir?
WITNESS:
Yes, sir.
ATTY. DIAZ:
In other words, sir from the time
your truck was hit according to
you up to the time you rested on
the shoulder, you traveled fifty
meters?
WITNESS:
Yes, sir, about that distance.
ATTY. DIAZ:
And this was despite the fact
that you were only traveling at
the speed of seventy five
kilometers per hour, jumped
over the island, hit the lamppost,
and traveled the three lanes of
the opposite lane of C-5
highway, is that what you want
to impress upon this court?
WITNESS:
Yes, sir.
We therefore find no cogent reason to disturb the
findings of the RTC and the Court of Appeals. The
evidence proves petitioner Del Rosario's negligence as
the direct and proximate cause of the injuries suffered
by respondent Stephen Huang. Petitioner Del Rosario
failed to do what a reasonable and prudent man would
have done under the circumstances.
We now come to the liability of petitioner Mercury
Drug as employer of Del Rosario. Articles 2176 and
2180 of the Civil Code provide:
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.
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
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 liability of the employer under
Art. 2180 of the Civil Code is direct or
immediate. It is not conditioned on a
prior recourse against the negligent
employee, or a prior showing of
insolvency of such employee. It is
also joint and solidary with the
employee.
To be relieved of liability, petitioner Mercury Drug
should show that it exercised the diligence of a good
father of a family, both in the selection of the employee
and in the supervision of the performance of his duties.
Thus, in the selection of its prospective employees, the
employer is required to examine them as to their
qualifications, experience, and service records. With
respect to the supervision of its employees, the
employer should formulate standard operating
procedures, monitor their implementation, and impose
disciplinary measures for their breach. To establish
compliance with these requirements, employers must
submit concrete proof, including documentary
evidence.
In the instant case, petitioner Mercury Drug presented
testimonial evidence on its hiring procedure. According
to Mrs. Merlie Caamic, the Recruitment and Training
316
Manager of petitioner Mercury Drug, applicants are
required to take theoretical and actual driving tests, and
psychological examination. In the case of petitioner Del
Rosario, however, Mrs. Caamic admitted that he took
the driving tests and psychological examination when
he applied for the position of Delivery Man, but not
when he applied for the position of Truck Man. Mrs.
Caamic also admitted that petitioner Del Rosario used a
Galant which is a light vehicle, instead of a truck during
the driving tests. Further, no tests were conducted on
the motor skills development, perceptual speed, visual
attention, depth visualization, eye and hand
coordination and steadiness of petitioner Del Rosario.
No NBI and police clearances were also presented.
Lastly, petitioner Del Rosario attended only three
driving seminars — on June 30, 2001, February 5, 2000
and July 7, 1984. In effect, the only seminar he attended
before the accident which occurred in 1996 was held
twelve years ago in 1984.
It also appears that petitioner Mercury Drug does not
provide for a back-up driver for long trips. At the time
of the accident, petitioner Del Rosario has been out on
the road for more than thirteen hours, without any
alternate. Mrs. Caamic testified that she does not know
of any company policy requiring back-up drivers for
long trips.
Petitioner Mercury Drug likewise failed to show that it
exercised due diligence on the supervision and
discipline over its employees. In fact, on the day of the
accident, petitioner Del Rosario was driving without a
license. He was holding a TVR for reckless driving. He
testified that he reported the incident to his superior,
but nothing was done about it. He was not suspended
or reprimanded. No disciplinary action whatsoever was
taken against petitioner Del Rosario. We therefore
affirm the finding that petitioner Mercury Drug has
failed to discharge its burden of proving that it
exercised due diligence in the selection and supervision
of its employee, petitioner Del Rosario.
We now consider the damages which respondents
should recover from the petitioners.
The trial court awarded the following amounts:
1. Two Million Nine Hundred Seventy-Three
Thousand Pesos (P2,973,000.00) actual damages;
2. As compensatory damages:
a. Twenty-Three Million Four Hundred Sixty
One Thousand, and Sixty-Two Pesos
(P23,461,062.00) for life care cost of Stephen;
b. Ten Million Pesos (P10,000,000.00) as and for
lost or impaired earning capacity of Stephen;
3. Four Million Pesos (P4,000,000.00) as moral
damages;
4. Two Million Pesos (P2,000,000.00) as exemplary
damages; and
5. One Million Pesos (P1,000,000.00) as attorney's fees
and litigation expense.
317
The Court of Appeals affirmed the decision of the trial
court but reduced the award of moral damages to
P1,000,000.00.
With regard to actual damages, Art. 2199 of the Civil
Code provides that "[E]xcept 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 . . . ." In the instant case, we uphold the
finding that the actual damages claimed by respondents
were supported by receipts. The amount of
P2,973,000.00 represented cost of hospital expenses,
medicines, medical services and supplies, and nursing
care services provided respondent Stephen from
December 20, 1996, the day of the accident, until
December 1998.
Petitioners are also liable for all damages which are the
natural and probable consequences of the act or
omission complained of. 16 The doctors who attended
to respondent Stephen are one in their prognosis that
his chances of walking again and performing basic
body functions are nil. For the rest of his life, he will
need continuous rehabilitation and therapy to prevent
further complications such as pneumonia, bladder and
rectum infection, renal failure, sepsis and severe bed
sores, osteoporosis and fractures, and other spinal cord
injury-related conditions. He will be completely
dependent on the care and support of his family. We
thus affirm the award of P23,461,062.00 for the life care
cost of respondent Stephen Huang, based on his
average monthly expense and the actuarial
computation of the remaining years that he is expected
to live; and the conservative amount of P10,000,000.00,
as reduced by the trial court, for the loss or impairment
of his earning capacity, 17 considering his age, probable
life expectancy, the state of his health, and his mental
and physical condition before the accident. He was only
seventeen years old, nearly six feet tall and weighed 175
pounds. He was in fourth year high school, and a
member of the school varsity basketball team. He was
also class president and editor-in-chief of the school
annual. He had shown very good leadership qualities.
He was looking forward to his college life, having just
passed the entrance examinations of the University of
the Philippines, De La Salle University, and the
University of Asia and the Pacific. The University of
Sto. Tomas even offered him a chance to obtain an
athletic scholarship, but the accident prevented him
from attending the basketball try-outs. Without doubt,
he was an exceptional student. He excelled both in his
academics and extracurricular undertakings. He is
intelligent and motivated, a go-getter, as testified by
Francisco Lopez, respondent Stephen Huang's
godfather and a bank executive. 18 Had the accident
not happened, he had a rosy future ahead of him. He
wanted to embark on a banking career, get married and
raise children. Taking into account his outstanding
abilities, he would have enjoyed a successful
professional career in banking. But, as Mr. Lopez
stated, it is highly unlikely for someone like respondent
to ever secure a job in a bank. To his knowledge, no
bank has ever hired a person suffering with the kind of
disability as Stephen Huang's.
We likewise uphold the award of moral and exemplary
damages and attorney's fees.
"The award of moral damages is aimed at a restoration,
within the limits of the possible, of the spiritual status
quo ante." Moral damages are designed to compensate
and alleviate in some way the physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly caused a
person. Although incapable of pecuniary computation,
they must be proportionate to the suffering inflicted.
The amount of the award bears no relation whatsoever
with the wealth or means of the offender.
In the instant case, respondent Stephen Huang and
respondent spouses Richard and Carmen Huang
testified to the intense suffering they continue to
experience as a result of the accident. Stephen
recounted the nightmares and traumas he suffers
almost every night when he relives the accident. He
also gets depression when he thinks of his bleak future.
He feels frustration and embarrassment in needing to
be helped with almost everything and in his inability to
do simple things he used to do. Similarly, respondent
spouses and the rest of the family undergo their own
private suffering. They live with the day-to-day
uncertainty of respondent Stephen Huang's condition.
They know that the chance of full recovery is nil.
Moreover, respondent Stephen Huang's paralysis has
made him prone to many other illnesses. His family,
especially respondent spouses, have to make
themselves available for Stephen twenty-four hours a
day. They have patterned their daily life around taking
care of him, ministering to his daily needs, altering the
lifestyle to which they had been accustomed.
Respondent Carmen Huang's brother testified on the
insensitivity of petitioner Mercury Drug towards the
plight of respondent. Stephen, viz.:
Maybe words cannot describe the
anger that we feel towards the
defendants. All the time that we were
going through the crisis, there was
none (sic) a single sign of nor offer of
help, any consolation or anything
whatsoever. It is funny because, you
know, I have many colleagues,
business associates, people even as
far as United States, Japan, that I
probably met only once, when they
found out, they make a call, they sent
card, they write small notes, but from
the defendant, absolute silence. They
didn't care, and worst, you know, this
is a company that have (sic) all the
resources to help us. They were (sic)
on our part, it was doubly painful
because we have no choice but to go
back to them and buy the medicines
that we need for Stephen. So, I don't
know how someone will really have
no sense of decency at all to at least
find out what happened to my son,
what is his condition, or if there is
anything that they can do to help us.
On the matter of exemplary damages, Art. 2231 of the
Civil Code provides that in cases of quasi-delicts,
exemplary damages may be granted if the defendant
acted with gross negligence. The records show that at
the time of the accident, petitioner Del Rosario was
driving without a license because he was previously
ticketed for reckless driving. The evidence also shows
that he failed to step on his brakes immediately after
the impact. Had petitioner Del Rosario done so, the
injuries which respondent Stephen sustained could
have been greatly reduced. Wanton acts such as that
committed by petitioner Del Rosario need be
suppressed; and employers like petitioner Mercury
Drug should be more circumspect in the observance of
due diligence in the selection and supervision of their
employees. The award of exemplary damages in favor
of the respondents is therefore justified.
With the award of exemplary damages, we also affirm
the grant of attorney's fees to respondents. 23 In
addition, attorney's fees may be granted when a party
is compelled to litigate or incur expenses to protect his
interest by reason of an unjustified act of the other
party.
Cost against petitioners.
IN VIEW THEREOF, the petition is DENIED. The
Decision and Resolution of the Court of Appeals dated
February 16, 2006 and March 30, 2006, respectively, in
CA-G.R. CV No. 83981, are AFFIRMED.
SO ORDERED.
Sandoval-Gutierrez, Corona, Azcuna and Garcia, JJ.,
concur.
e. State
MERRITT vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS
G.R. No. 11154, 21 March 1916, 34 Phil. 311
TRENT, J p:
This is an appeal by both partied from a judgment of
the Court of First Instance of the city of Manila in favor
of the plaintiff for the sum of P14,741, together with the
costs of the cause.
xxx xxx xxx
The trial court's findings of fact, which are fully
supported by the record, are as follows:
318

"It is a fact not disputed by counsel
for the defendant that when the
plaintiff, riding on a motorcycle, was
going toward the western part of
Calle Padre Faura, passing along the
west side thereof at a speed of ten to
twelve miles and hour, upon crossing
Taft Avenue and when he was ten
feet from the southwestern
intersection of said streets, the
General Hospital ambulance, upon
reaching said avenue, instead of
turning toward the south, after
passing the center thereof, so that it
would be on the left side of said
avenue, as is prescribed by the
ordinance and the Motor Vehicle Act,
turned suddenly and unexpectedly
and long before reaching the center of
the street, into the right side of Taft
Avenue, without having sounded
any whistle or horn, by which
movement it struck the plaintiff, who
was already six feet from the
southwestern point or from the post
placed there.
"By reason of the resulting collision,
the plaintiff was so severely injured
that, according to Dr. Saleeby, who
examined him on the very same day
that he was taken to the General
Hospital, he was suffering from a
depression in the left parietal region,
a wound in the same place and in
beck part of his head, while blood
issued from his nose and he was
entirely unconscious.
"The marks revealed that he had one
or more fractures of the skull and that
the grey matter and brain mass had
suffered material injury. At ten
o'clock of the night in question,
which was the time set for
performing the operation, his pulse
was so weak and so irregular that, in
his opinion, there was little hope that
he would live. His right leg was
broken in such a way that the fracture
extended to the outer skin in such
manner that it might be regarded as
double and the wound would be
expose to infection, for which reason
it was of the most serious nature.
"At another examination six days
before the day of the trial, Dr. Saleeby
notice that the plaintiff's leg showed a
contraction of an inch and a half and
a curvature that made his leg very
319
weak and painful at the point of the
fracture. Examination of his head
revealed a notable re-adjustment of
the functions of the brain and nerves.
The patient apparently was slightly
deaf, had a slight weakness in his
eyes and in his mental condition. This
latter weakness was always noticed
when the plaintiff had to do any
difficult mental labor, especially
when he attempted to use his
memory for mathematical
calculations.
"According to the various merchants
who testified as witnesses, the
plaintiff's mental and physical
condition prior to the accident was
excellent, and that after having
received the injuries that have been
discussed, his physical condition had
undergone a noticeable depreciation,
for he had lost the agility, energy,
and ability that he had constantly
displayed before the accident as one
of the best constructors of wooden
buildings and he could not now earn
even a half of the income that he had
secured for his work because he had
lost 50 per cent of his efficiency. As a
contractor, he could no longer, as he
had before done, climb up ladders
and scaffoldings to reach the highest
parts of the building.
"As a consequence of the loss the
plaintiff suffered in the efficiency of
his work as a contractor, he had to
dissolve the partnership he had
formed with the engineer, Wilson,
because he was incapacitated from
making mathematical calculations on
account of the condition of his leg
and of his mental faculties, and he
had to give up a contract he had for
the construction of the Uy Chaco
building."
We may say at the outset that we are in full accord with
the trial court to the effect that the collision between the
plaintiff's motorcycle and the ambulance of the General
Hospital was due solely to the negligence of the
chauffeur.
The two items which constitute a part of the P14,741
and which are drawn in question by the plaintiff are (a)
P5,000, the amount awarded for permanent injuries,
and (b) the P2,666, the amount allowed for the loss of
wages during the time the plaintiff was incapacitated
from pursuing his occupation. We fund nothing in the
record which would justify us in increasing the amount
of the first. as to the second, the record shows, and the
trial court so found, that the plaintiff's services as a
contractor were worth P1,000 per month. The court,
however, limited the time to two months and twenty-
one days, which the plaintiff was actually confined in
the hospital. In this we think there was error, because it
was clearly established that the plaintiff was wholly
incapacitated for a period of sex months. The mere fact
that he remained in the hospital only two months and
twenty-one days while the remainder of the six months
was spent in his home, would not prevent recovery for
the whole time. We, therefore, find that the amount of
damages sustained by the plaintiff, without any fault
on his part, is P18,075.
As the negligence which caused the collision is a tort
committed by an agent or employee of the Government,
the inquiry at once arises whether the Government is
legally liable for the damages resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
"An act authorizing E. Merritt to
bring suit against the Government of
the Philippine Islands and
authorizing the Attorney-General of
said Islands to appear in said suit.
"Whereas a claim has been filed
against the Government of the
Philippine Islands by Mr. E. Merritt,
of Manila, for damages resulting
from a collision between his
motorcycle and the ambulance of the
General Hospital on March twenty-
fifth, nineteen hundred and thirteen;
"Whereas it is not known who is
responsible for the accident nor is it
possible to determine the amount of
damages, if any , to which the
claimant is entitled; and
"Whereas the Director of Public
Works and the Attorney-General
recommend that an act be passed by
the Legislature authorizing Mr. E.
Merritt to bring suit in the courts
against the Government, in order that
said questions may be decided: Now,
therefore,
"By authority of the United States, be
it enacted by the Philippine
Legislature, that:
"SECTION 1. E. Merritt is hereby
authorized to bring suit in the Court
of First Instance of the city of Manila
against the Government of the
Philippine Islands in order to fix the
responsibility for the collision
between his motorcycle and the
ambulance of the General Hospital,
and to determine the amount of the
damages, if any, to which Mr. E.
Merritt is entitled on account of said
collision, and the attorney-General of
the Philippine Islands is hereby
authorized and directed to appear at
the trial on the behalf of the
Government of said Islands, to
defend said Government at the same.
"SEC. 2. This Act shall take effect on
its passage.
"Enacted, February 3, 1915."
Did the defendant, in enacting the above quoted act,
simply waive its immunity from suit or did it also
concede its liability to the plaintiff? If only the former,
then it cannot be held that the Act created any new
cause of action in favor of the plaintiff or extended the
defendant's liability to any case not previously
recognized.
All admit that the Insular Government (the defendant)
cannot be sued by an individual without its consent. It
is also admitted that the instant case is one against the
Government. As the consent of the Government to be
sued by the plaintiff was entirely voluntary on its part,
it is our duty to look carefully into the terms of the
consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against
the Government "in order to fix the responsibility for
the collision between his motorcycle and the ambulance
of the General Hospital and to determine the amount of
the damages, if any, to which Mr. E. Merritt is entitled
on account of said collision, . . . ." These were the two
questions submitted to the court for determination. The
Act was passed "in order that said questions may be
decided." We have "decided" that the accident was due
solely to the negligence of the chauffeur, who was at
the time an employee of the defendant, and we have
also fixed the amount of damages sustained by the
plaintiff as a result of the collision. Does the Act
authorize us to hold that the Government is legally
liable for that amount? If not, we must look elsewhere
for such authority, if it exists.
The Government of the Philippine Islands having been
"modeled after the Federal and state Governments in
the United States," we may look to the decisions of the
high courts of that country for aid in determining the
purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable
for the torts committed by its officers or agents whom it
employs, except when expressly made so by legislative
enactment, is well settled. "The Government," says
Justice Story, "does not undertake to guarantee to any
person the fidelity of the officers or agents whom it
employs, since that would involve it in all its operations
320
in endless embarrassments, difficulties and losses,
which would be subversive of the public interest."
(Claussen vs. City of Luverne, 103 Minn., 491, citing U.S.
vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs.
State, 20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff
sought to recover damages from the state for personal
injuries received on account of the negligence of the
state officers at the state fair, a state institution created
by the legislature for the purpose of improving
agricultural and kindred industries; to disseminate
information calculated to educate and benefit the
industrial classes; and to advance to educate and
benefit the industrial classes; and to advance by such
means the material interests of the state, being objects
similar to those sought by the public school system. In
passing upon the question of the state's liability for the
negligent acts of its officers or agents, the court said:
"No claim arises against any
government in favor of an individual,
by reason of the misfeasance, laces, or
unauthorized exercise of powers by
its officers or agents." (Citing Gibbons
vs. U.S., 8 Wall., 269; Clodfelter vs.
State, 86 N.C., 51, 53; 41 Am. Rep.,
440; Chapman vs. State, 104 Cal., 690;
43 Am. St. Rep., 158; Green vs. State,
73 Cal., 29; Bourn vs. Hart, 93 Cal.,
321; 27 Am. St. Rep., 203; Story on
Agency, sec. 319.)
As to the scope of legislative enactments permitting
individuals to sue the state where the cause of action
arises out of either tort or contract, the rule is stated in
36 Cyc., 915, thus:
"By consenting to be sued a state
simply waives its immunity from
suit. It does not thereby concede its
liability to plaintiff, or create any
cause of action in his favor, or extend
its liability to any cause not
previously recognized. It merely
gives a remedy to enforce a
preexisting liability and submits itself
to the jurisdiction of the court, subject
to its right to interpose any lawful
defense."
In Apfelbacher vs. State (152 N. W., 144, advanced
sheets), decided April 16, 1915, the Act of 1913, which
authorized the bringing of this suit, read:
"SECTION 1. Authority is hereby
given to George Apfelbacher, of the
town of Summit, Waukesha County,
Wisconsin, to bring suit in such court
or courts and in such form or forms
as he may be advised for the purpose
of settling and determining all
321
controversies which he may now
have with the State of Wisconsin, or
its duly authorizes officers and
agents, relative to the mill property of
said George Apfelbacher, the fish
hatchery of the State Wisconsin on
the Bark River, and the mill property
of Evan Humphrey at the lower end
of Nagawicka Lake, and relative to
the use of the waters of said Bark
River and Nagawicka Lake, all in the
county of Waukesha, Wisconsin."
In determining the scope of this act, the court said;
"Plaintiff claims that by the
enactment of this law the legislature
admitted liability on the part of the
state for the acts of its officers, and
that the suit now stands just as it
would stand between private parties.
It is difficult to see how the act does,
or was intended to do, more than
remove the state's immunity from
suit. It simply gives authority
commence suit for the purpose of
settling plaintiff's controversies with
the state. Nowhere in the act is there
a whisper or suggestion that the court
or courts in the disposition of the suit
shall depart from well established
principles of law, or that the amount
of damages is the only question to be
settled. The act opened the door of
the court to the plaintiff. It did not
pass upon the question of liability,
but left the suit just where it would
be in the absence of the state's
immunity from suit. If the Legislature
had intended to change the rule that
obtained in this state so long and to
declare liability on the part of the
state, it would not have left so
important a matter to mere inference
but would have done so in express
terms. (Murdoc Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N.
E., 854; 8 L. R.A., 399)"
In Denning vs. state (123 Cal., 316), the provisions of the
Act of 1893, relied upon and considered, are as follows:
"All persons who have, or shall
hereafter have claims on contract or
for negligence against the state not
allowed by the state board of
examiners, are hereby authorized, on
the terms and conditions herein
contained, to bring suit thereon
against the state in any of the courts
of this state of competent jurisdiction,
and prosecute the same to final
 judgment. The rules of practice in
civil cases shall apply to such suits,
except as herein otherwise provided."
And the court said:
"This statute has been considered by this court
in at least two cases, arising under different
facts, and in both it was held that said statute
did not create any liability or cause of action
against the state where none existed before,
but merely gave an additional remedy to
enforce such liability as would have existed if
the statute had not been enacted. (Chapman vs.
State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin
vs. State, 121 Cal., 16.)"
A statute of Massachusetts enacted in 1887 gave to the
superior court "jurisdiction of all claims against the
commonwealth, whether at law or in equity," with an
exception not necessary to be here mentioned. In
construing this statute the court, in Murdock Grate Co.
vs. Commonwealth (152 Mass., 28), said:
"The statute we are discussing
discloses no intention to create
against the state a new and heretofore
unrecognized class of liabilities, but
only an intention to provide a judicial
tribunal where well recognized
existing liabilities can be
adjudicated."
In Sipple vs. State (99 N. Y., 284), where the board of the
canal claims had, by the terms of the statute of New
York, jurisdiction of claims for damages for injuries in
the management of the canals such as the plaintiff had
sustained, Chief Justice Ruger remarks; "It must be
conceded that the state can be made liable for injuries
arising from the negligence of its agents or servants,
only by force of some positive statute assuming such
liability."
It being quite clear that Act No. 2457 does not operate
to extend the Government's liability to any cause not
previously recognized, we will now examine the
substantive law touching the defendant's liability for
the negligent acts of its officers, agents, and employees.
Paragraph 5 of article 1903 of the civil Code reads:
"The state is liable in this sense when
it acts through a special agent, but
not when the damage 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."
The supreme court of Spain in defining the scope of this
paragraph said:
"That the obligation to indemnify for
damages which a third person causes
another by his fault or negligence is
based, as is evidenced by the same
Law 3, Title 15, Partida 7, on that the
person obligated, by his own fault or
negligence, takes part in the act or
omission of the third party who
caused the damage. It follows
therefrom that the state by virtue of
such provision of law, is not
responsible for the damages suffered
by private individuals in
consequence of acts performed by its
employees in the discharge of the
functions pertaining to their office,
because neither fault nor even
negligence can be presumed on the
part of the state in the organization of
branches of the public service and in
the appointment of its agents; on the
contrary, we must presuppose all
foresight humanly possible on its part
in order that each branch of service
serves the general weal and that of
private persons interested in its
operation. Between these latter and
the state therefore, no relations of a
private nature governed by the civil
law can arise except in a case where
the state acts as a judicial person
capable of acquiring rights and
contracting obligations." (Supreme
Court of Spain, January 7, 1898; 83
Jur. Civ., 24.)
"That the Civil Code in chapter 2, title
16, book 4, regulates the obligations
which arise out of fault or negligence;
and whereas in the first articles
thereof, No. 1902, where the general
principle is laid down that where a
person who by an act or omission
causes damage to another through
fault or negligence, shall be obliged
to repair the damage so done,
reference is made to acts or omissions
of the persons who directly or
indirectly cause the damage, the
following article refers to third
persons and imposes an identical
obligation upon those who maintain
fixed relations of authority and
superiority over the authors of the
damage, because the law presumes
that in consequence of such relations
the evil caused by their own fault or
negligence is imputable to them. This
legal presumption gives way to
proof, however, because, as held in
the last paragraph of article 1903,
responsibility for acts of third
322
 persons ceases when the persons
mentioned in said article prove that
they employed all the diligence of a
good father of a family to avoid the
damage, and among these persons,
called up[on to answer in a direct and
not a subsidiary manner, are found,
in addition to the mother or the father
in a proper case, guardians and
owners or director of an
establishment or enterprise, the state,
but not always, except when it acts
through the agency of a special agent,
doubtless because and only in this
case, the fault or negligence, which is
the original basis of this kind of
objections, must be presumed to lie
with the state.
"That although in some cases the state
might by virtue of the general
principle set forth in article 1902
respond for all the damage that is
occasioned to private parties by
orders or resolutions which by fault
or negligence are made by branches
of the central administration acting in
the name and representation of the
state itself and as an external
expression of its sovereignty in the
exercise of its executive powers, yet
said article is not applicable in the
case of damages said to have been
occasioned to the petitioners by an
executive official, acting in the
exercise of his powers, in proceedings
to enforce the collections of certain
property taxes owing by the owner of
the property which they hold in
sublease.
"That the responsibility of the state is
limited by article 1903 to the case
wherein it acts through a special
agent (and a special agent, in the
sense in which these words are
employed, is one who receives a
definite and fixed order or
commission, foreign to the exercise of
the duties of his office if he is a
special official) so that in
representation of the state and being
bound to act as an agent thereof he
executed the trust confided to him.
this concept does not apply to any
executive agent who is an employee
of the active administration and who
in his own responsibility performs
the functions which are inherent in
and naturally pertain to his office and
which are regulated by law and the
regulations." (Supreme Court of
323
Spain, May 18, 1904; 98 Jur. Civ., 389,
390.)
"That according to paragraph 5 of
article 1903 of the Civil Code and the
principle laid down in a decision,
among others, of the 18th of May,
1904, in a damage case, the
responsibility of the state is limited to
that which it contracts through a
special agent, duly empowered by a
definite order or commission to
perform some act or charged with
some definite purpose which gives
rise to the claim, and not where the
claim is based on acts or omissions
imputable to a public official charge
with some administrative or technical
office who can be held to the proper
responsibility in the manner laid
down by the law of civil
responsibility. Consequently, the trial
court in not so deciding and in
sentencing the said entity to the
payment of damages, caused by an
official of the second class referred to,
has by erroneous interpretation
infringed the provisions of articles
1902 and 1903 of the Civil Code."
(Supreme Court of Spain, July 30,
1911; 122 Jur. Civ., 146)
It is, therefore, evident that the State (the Government
of the Philippine Islands) is only liable, according to the
above quoted decisions of the Supreme Court of Spain,
for the acts of its agents, officers and employees when
they act as special agents within the meaning of
paragraph 5 of article 1903, supra, and that the
chauffeur of the ambulance of the General Hospital was
not such an agent.
For the foregoing reasons, the judgment appealed from
must be reversed, without costs in this instance.
Whether the Government intends to make itself legally
liable for the amount of damages above set forth, which
the plaintiff has sustained by reason of the negligent
acts of one of its employees, by legislative enactment
and by appropriating sufficient funds therefor, we are
not called upon to determine. This matter rests solely
with the Legislature and not with the courts.
Arellano, C.J., Torres, Johnson and Moreland, JJ.,
concur.
SPOUSES FONTANILLA, ET AL. vs.
MALIAMAN, ET AL.
G.R. No. 55963, 1 December 1989.
PARAS, J p:
In G.R. No. 55963, the petition for review on certiorari
seeks the affirmance of the decision dated March 20,
1980 of the then Court of First Instance of Nueva Ecija,
Branch VIII, at San Jose City, and its modification with
respect to the denial of petitioner's claim for moral and
exemplary damages and attorney's fees.
In G.R. No. 61045, respondent National Irrigation
Administration seeks the reversal of the aforesaid
decision of the lower court. The original appeal of this
case before the Court of Appeals was certified to this
Court and in the resolution of July 7, 1982, it was
docketed with the aforecited number. And in the
resolution of April 3, this case was consolidated with
G.R. No. 55963.
It appears that on August 21, 1976 at about 6:30 P.M., a
pick-up owned and operated by respondent National
Irrigation Administration, a government agency
bearing Plate No. IN-651, then driven officially by
Hugo Garcia, an employee of said agency as its regular
driver, bumped a bicycle ridden by Francisco
Fontanilla, son of herein petitioners, and Restituto
Deligo, at Maasin, San Jose City along the Maharlika
Highway. As a result of the impact, Francisco
Fontanilla and Restituto Deligo were injured and
brought to the San Jose City Emergency Hospital for
treatment. Fontanilla was later transferred to the
Cabanatuan Provincial Hospital where he died.
Garcia was then a regular driver of respondent
National Irrigation Administration who, at the time of
the accident, was a licensed professional driver and
who qualified for employment as such regular driver of
respondent after having passed the written and oral
examinations on traffic rules and maintenance of
vehicles given by National Irrigation Administration
authorities.
The within petition is thus an offshot of the action (Civil
Case No. SJC-56) instituted by petitioners-spouses on
April 17, 1978 against respondent NIA before the then
Court of First Instance of Nueva Ecija, Branch VIII at
San Jose City, for damages in connection with the death
of their son resulting from the aforestated accident.
After trial, the trial court rendered judgment on March
20, 1980 which directed respondent National Irrigation
Administration to pay damages (death benefits) and
actual expenses to petitioners. The dispositive portion
of the decision reads thus.
". . . Judgment is hereby rendered
ordering the defendant National
Irrigation Administration to pay to
the heirs of the deceased P12,000.00
for the death of Francisco Fontanilla;
P3,389.00 which the parents of the
deceased had spent for the
hospitalization and burial of the
deceased Francisco Fontanilla; and to
pay the costs." (Brief for the
petitioners spouses Fontanilla, p. 4;
Rollo, p. 132).
Respondent National Irrigation Administration filed on
April 21, 1980, its motion for reconsideration of the
aforesaid decision which respondent trial court denied
in its Order of June 13, 1980. Respondent National
Irrigation Administration thus appealed said decision
to the Court of Appeals (C.A.-G.R. No. 67237-R) where
it filed its brief for appellant in support of its position.
Instead of filing the required brief in the aforecited
Court of Appeals case, petitioners filed the instant
petition with this Court.
xxx xxx xxx
The sole legal question on whether or not petitioners
may be entitled to an award of moral and exemplary
damages and attorney's fees can very well be answered
with the application of Arts. 2176 and 2180 of the New
Civil Code.
Art. 2176 thus provides:
"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."
Paragraphs 5 and 6 of Art. 2180 read as follows:
"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."
"The State is responsible in like
manner when it acts through a
special agent; but not when the
damage has been caused by the
official to whom the task done
properly pertains, in which case what
is provided in Art. 2176 shall be
applicable."
The liability of the State has two aspects, namely:
1. Its public or governmental aspects where it is
liable for the tortious acts of special agents
only.
2 Its private or business aspects (as when it
engages in private enterprises) where it
becomes liable as an ordinary employer. (p.
961, Civil Code of the Philippines; Annotated,
Paras, 1986 Ed.).
324
In this jurisdiction, the State assumes a limited liability
for the damage caused by the tortious acts or conduct of
its special agent.
Under the aforequoted paragraph 6 of Art. 2180, the
State has voluntarily assumed liability for acts done
through special agents. The State's agent, if a public
official, must not only be specially commissioned to do
a particular task but that such task must be foreign to
said official's usual governmental functions. If the
State's agent is not a public official, and is
commissioned to perform non-govern mental functions,
then the State assumes the role of an ordinary employer
and will be held liable as such for its agent's tort. Where
the government commissions a private individual for a
special governmental task, it is acting through a special
agent within the meaning of the provision. (Torts and
Damages, Sangco, p. 347, 1984 Ed.).
Certain functions and activities, which can be
performed only by the government, are more or less
generally agreed to be "governmental" in character, and
so the State is immune from tort liability. On the other
hand, a service which might as well be provided by a
private corporation, and particularly when it collects
revenues from it, the function is considered a
"proprietary" one, as to which there may be liability for
the torts of agents within the scope of their
employment.
The National Irrigation Administration is an agency of
the government exercising proprietary functions, by
express provision of Rep. Act No. 3601. Section 1 of said
Act provides:
"Section 1. Name and
domicile. — A body corporate is
hereby created which shall be known
as the National Irrigation
Administration, hereinafter called the
NIA for short, which shall be
organized immediately after the
approval of this Act. It shall have its
principal seat of business in the City
of Manila and shall have
representatives in all provinces for
the proper conduct of its business.'
Section 2 of said law spells out some of the NIA's
proprietary functions. Thus —
"Sec. 2. Powers and objectives. —
The NIA shall have the following
powers and objectives:
"(a) ...
"(b) ...
"(c) To collect from the users of
each irrigation system constructed by
it such fees as may be necessary to
325
finance the continuous operation of
the system and reimburse within a
certain period not less than twenty-
five years cost of construction thereof;
and
"(d) To do all such other things
and to transact all such business as
are directly or indirectly necessary,
incidental or conducive to the
attainment of the above objectives."
Indubitably, the NIA is a government corporation with
juridical personality and not a mere agency of the
government. Since it is a corporate body performing
non-governmental functions, it now becomes liable for
the damage caused by the accident resulting from the
tortious act of its driver-employee. In this particular
case, the NIA assumes the responsibility of an ordinary
employer and as such, it becomes answerable for
damages.
This assumption of liability, however, is predicated
upon the existence of negligence on the part of
respondent NIA. The negligence referred to here is the
negligence of supervision.
At this juncture, the matter of due diligence on the part
of respondent NIA becomes a crucial issue in
determining its liability since it has been established
that respondent is a government agency performing
proprietary functions and as such, it assumes the
posture of an ordinary employer which, under Par. 5 of
Art. 2180, is responsible for the damages caused by its
employees provided that it has failed to observe or
exercise due diligence in the selection and supervision
of the driver.
It will be noted from the assailed decision of the trial
court that "as a result of the impact, Francisco
Fontanilla was thrown to a distance 50 meters away from
the point of impact while Restituto Deligo was thrown a
little bit further away. The impact took place almost at
the edge of the cemented portion of the road."
(Emphasis supplied) [page 26, Rollo].
The lower court further declared that "a speeding
vehicle coming in contact with a person causes force
and impact upon the vehicle that anyone in the vehicle
cannot fail to notice. As a matter of fact, the impact was
so strong as shown by the fact that the vehicle suffered
dents on the right side of the radiator guard, the hood, the
fender and a crack on the radiator as shown by the
investigation report (Exhibit "E"). (Emphasis supplied)
[page 29, Rollo].
It should be emphasized that the accident happened
along the Maharlika National Road within the city
limits of San Jose City, an urban area. Considering the
fact that the victim was thrown 50 meters away from
the point of impact, there is a strong indication that
driver Garcia was driving at a high speed. This is
confirmed by the fact that the pick-up suffered
substantial and heavy damage as above-described and
the fact that the NIA group was then "in a hurry to
reach the campsite as early as possible", as shown by
their not stopping to find out what they bumped as
would have been their normal and initial reaction.
Evidently, there was negligence in the supervision of
the driver for the reason that they were traveling at a
high speed within the city limits and yet the supervisor
of the group, Ely Salonga, failed to caution and make
the driver observe the proper and allowed speed limit
within the city. Under the situation, such negligence is
further aggravated by their desire to reach their
destination without even checking whether or not the
vehicle suffered damage from the object it bumped,
thus showing imprudence and recklessness on the part
of both the driver and the supervisor in the group.
Significantly, this Court has ruled that even if the
employer can prove the diligence in the selection and
supervision (the latter aspect has not been established
herein) of the employee, still if he ratifies the wrongful
acts, or take no step to avert further damage, the
employer would still be liable. (Maxion vs. Manila
Railroad Co., 44 Phil. 597).
Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus
Co. (L-26810, August 31, 1970, 34 SCRA 618), this Court
held that a driver should be especially watchful in
anticipation of others who may be using the highway,
and his failure to keep a proper look out for reasons
and objects in the line to be traversed constitutes
negligence.
Considering the foregoing, respondent NIA is hereby
directed to pay herein petitioners-spouses the amounts
of P12,000.00 for the death of Francisco Fontanilla;
P3,389.00 for hospitalization and burial expenses of the
aforenamed deceased; P30,000.00 as moral damages;
P8,000.00 as exemplary damages and attorney's fees of
20% of the total award.
SO ORDERED.
Padilla, Sarmiento and Regalado, JJ., concur.
Melencio-Herrera (Chairman), J., is on leave.
SPOUSES JOSE FONTANILLA and VIRGINIA
FONTANILLA vs. HONORABLE INOCENCIO D.
MALIAMAN and NATIONAL IRRIGATION
ADMINISTRATION
G.R. Nos. 55963 & 61045, 27 February 1991.
PARAS, J p:
In its Motion for Reconsideration of the Court's Second
Division decision in G.R. No. 55963 and G.R. No. 61045,
the National Irrigation Administration (NIA, for
brevity), through the Solicitor General, maintains that,
on the strength of Presidential Decree No. 552 (which
amended certain provisions of Republic Act 3601, the
law creating the NIA) and the case of Angat River
Irrigation System, et al. vs. Angat River Workers' Union, et
al., 102 Phil. 790 "the NIA does not perform solely and
primarily proprietary functions but is an agency of the
government tasked with governmental functions, and is
therefore not liable for the tortious act of its driver
Hugo Garcia, who was not its special agent."
Although the majority opinion in the cited case of
Angat System declares that the Angat System (like the
NIA) exercised a governmental function because the
nature of the powers and functions of said agency does
not show that it was intended to "bring to the
Government any special corporate benefit or pecuniary
profit," there is a strong dissenting opinion penned by
then Associate Justice and later Chief Justice Roberto
Concepcion and concurred in by then Associate Justice
J.B.L. Reyes which held the contrary view that the
Angat River System is a government entity exercising
proprietary functions. To buttress said stand, the
former Chief Justice cited some authorities which will
be useful in the proper resolution of this case.
Quoting from said dissenting opinion which cited
McQuillin's The Law of Municipal Corporations, 3rd
ed., Vol. 18, pp. 423-424:
"In undertaking to supply water at
price, municipality is not performing
governmental function but is
engaged in trade, and is liable first as
private company would be for any
negligence in laying out of its pipes,
in keeping them in repair, or in
furnishing potable water through
them. Harvard Furniture Co., Inc. vs.
City of Cambridge, 320 Mass. 227, 68
N.E. (2d) 684."
"Municipality in contracting to
provide water supply acts under its
proprietary power and not under its
legislative, public or governmental
powers. Farmers' State Bank vs.
Conrad, 100 Mont. 415, 47 P. (2d)
853."
In this connection, the opinion is that irrigation districts
in the United States are basically identical to our
irrigation systems under Act No. 2152. Because of such
similarity, it is found appropriate to consider certain
doctrines from American jurisprudence, which are as
follows, to wit:
"An irrigation district is a public
quasi corporation, organized,
however, to conduct a business for
the private benefit of the owners of
land within its limits. They are
members of the corporation, control
its affairs, and alone are benefited by
326
 its operations. It is, in the
administration of its business, the
owner of its system in a proprietary
rather than a public capacity, and
must assume and bear the burdens of
proprietary ownership." (Nampa vs.
Nampa & M. Irrig. Dist. 19 Idaho,
779, 115 Pac. 979)
". . . the plaintiff sought damages for
injuries to crops on his land during
1923, 1924, 1925, and 1926, caused by
water seeping, percolating, and
escaping from the defendant's canal.
The defendant contended that
irrigation districts were agencies of
the state, and were, therefore, not
liable for the negligent construction
or operation of their canals or ditches.
The court, after a careful review of
the authorities defining an irrigation
district, conceded that such a quasi
public corporation possessed some
governmental powers and exercised
some governmental functions, but
held that the construction and
operation of its irrigation canals and
ditches was a proprietary rather than
a governmental function, and hence
the district was responsible in
damages for the negligent
construction or operation of its canal
system." (69 A.L.R., p. 1233)
It may not be amiss to state at this point that the
functions of government have been classified into
governmental or constituent and proprietary or
ministrant. The former involves the exercise of
sovereignty and considered as compulsory; the latter
connotes merely the exercise of proprietary functions
and thus considered as optional. The Solicitor General
argues that the reasons presented by P.D. 552 for the
existence of the NIA (the WHEREAS clauses of said
decree) indubitably reveal that the responsibility vested
in said agency concerns public welfare and public
benefit, and is therefore an exercise of sovereignty. On
the contrary, We agree with the former Chief Justice
Concepcion in saying that the same purpose such as
public benefit and public welfare may be found in the
operation of certain enterprises (those engaged in the
supply of electric power, or in supplying telegraphic,
telephonic, and radio communication, or in the
production and distribution of prime necessities, etc.)
yet it is certain that the functions performed by such
enterprises are basically proprietary in nature. Thus, as
held in Holderbaum vs. Hidalgo County Water
Improvement District (297 S.W. 865, aff'd in 11 S.W.
[2d] 506) — cited in the dissenting opinion by Justice
Concepcion:
". . . Primarily, a water improvement
district is in no better position than a
327
city is when exercising its purely
local powers and duties. Its general
purposes are not essentially public in
their nature, but are only incidentally
so; those purposes may be likened to
those of a city which is operating a
waterworks system, or an irrigation
system. . . . A water improvement
district can do nothing, it has and
furnishes no facilities, for the
administration of the sovereign
government. Its officers have no
power or authority to exercise any of
the functions of the general
government, or to enforce any of the
laws of the state or any of its other
subdivisions, or collect taxes other
than those assessed by the district.
They have no more power or
authority than that of the officers of a
private corporation organized for like
purposes. As a practical matter, the
primary objects and purposes of such
district are of a purely local nature,
for the district is created and
operated for the sole benefit of its
own members, and an analysis of
those objects and purposes discloses
that they directly benefit only the
landowners who reside within and
whose lands form a part of the
district, to the exclusion of all other
residents therein. It is true, of course,
that the state and the general public
are greatly benefited by the proper
operation of the district, and to that
extent its objects and
accomplishments are public in their
nature, but this characteristic is only
incidental to the primary and chief
object of the corporation, which is the
irrigation of lands forming a part of
the district. It is obvious, then, that
the purposes and duties of such
districts do not come within the
definition of public rights, purposes,
and duties which would entitle the
district to the exemption raised by the
common law as a protection to
corporations having a purely public
purpose and performing essentially
public duties."
Of equal importance is the case of National Waterworks
and Sewerage Authority (NAWASA) vs. NWSA
Consolidated Unions, 11 SCRA 766, which propounds the
thesis that "the NAWASA is not an agency performing
governmental functions; rather it performs proprietary
functions . . . ." The functions of providing water supply
and sewerage service are regarded as mere optional
functions of government even though the service
rendered caters to the community as a whole and the
goal is for the general interest of society. The business funds or portions thereof expended
of furnishing water supply and sewerage service, as for the construction and/or
held in the case of Metropolitan Water District vs. Court of rehabilitation of communal irrigation
Industrial Relations, et al., 91 Phil. 840, "may for all systems which funds shall accrue to a
practical purposes be likened to an industry engaged in special fund for irrigation
by coal companies, gas companies, power plants, ice development under section 2 hereof;
plants, and the like." Withal, it has been enunciated that
"although the State may regulate the service and rates Unpaid irrigation fees or
of water plants owned and operated by municipalities, administration charges shall be
such property is not employed for governmental preferred liens first, upon the land
purposes and in the ownership and operation thereof benefited, and then on the crops
the municipality acts in its proprietary capacity, free raised thereon, which liens shall have
from legislative interference." (1 McQuillin, p. 683) preference over all other liens except
for taxes on the land, and such
Like the NAWASA, the National Irrigation preferred liens shall not be removed
Administration was not created for purposes of local until all fees or administration
government. While it may be true that the NIA was charges are paid or the property is
essentially a service agency of the government aimed at levied upon and sold by the National
promoting public interest and public welfare, such fact Irrigation Administration for the
does not make the NIA essentially and purely a satisfaction thereof. . . ."
"government-function" corporation. NIA was created
for the purpose of "constructing, improving, The same section also provides that NIA may sue and
rehabilitating, and administering all national irrigation be sued in court. Thus,
systems in the Philippines, including all communal and
pump irrigation projects." Certainly, the state and the "b) . . . Judicial actions for the
community as a whole are largely benefited by the collection of unpaid irrigation fees or
services the agency renders, but these functions are charges, drainage fees or other
only incidental to the principal aim of the agency, charges which the National Irrigation
which is the irrigation of lands. Administration is authorized to
impose and collect, shall henceforth
We must not lose sight of the fact that the NIA is a be governed by the provisions of the
government agency invested with a corporate Rules of Court of the Philippines for
personality separate and distinct from the government, similar actions, the provisions of
thus is governed by the Corporation Law. Section 1 of other laws to the contrary
Republic Act No. 3601 provides: notwithstanding."

"Section 1. Name and Domicile xxx xxx xxx

— A body corporate is hereby created
which shall be known as the National "(e) ...
Irrigation Administration. . . . which xxx xxx xxx
shall be organized immediately after xxx xxx xxx
the approval of this Act. It shall have
its principal seat of business in the All actions for the recovery of
City of Manila and shall have compensation and damages against
representatives in all provinces, for the National Irrigation
the proper conduct of its business." Administration under paragraphs (1),
(Emphasis supplied). (2), and (3) hereof, shall be filed with
a competent court within five (5)
Besides, Section 2, subsection b of P.D. 552 provides years from the date of entry of the
that: land or destruction of the
improvements or crops, after which
"(b) To charge and collect from period, the right of possession
the beneficiaries of the water from all and/or ownership of the National
irrigation systems constructed by or Irrigation Administration shall be
under its administration, such fees or considered vested and absolute. All
administration charges as may be other actions for the recovery of
necessary to cover the cost of compensation and damages to
operation, maintenance and private property and improvements
insurance, and to recover the cost of occasioned by the construction,
construction within a reasonable operation and maintenance of
period of time to the extent consistent irrigation facilities and other
with government policy; to recover hydraulic structures under the

328
 administration of the National
Irrigation Administration, which
have accrued ten (10) or more years
prior to the approval of this decree
are deemed to have prescribed and
are barred forever."
It has its own assets and liabilities. It also has corporate
powers to be exercised by a Board of Directors. To
quote Section 2, subsection (f):
"(f) . . . and to transact such business,
as are directly or indirectly necessary,
incidental or conducive to the
attainment of the above powers and
objectives, including the power to
establish and maintain subsidiaries,
and in general, to exercise all the powers
of a corporation under the Corporation
Law, insofar as they are not
inconsistent with the provisions of
this Act." (Emphasis supplied).
On the basis of the foregoing considerations, We
conclude that the National Irrigation Administration is
a government agency with a juridical personality
separate and distinct from the government. It is not a
mere agency of the government but a corporate body
performing proprietary functions. Therefore, it may be
held liable for the damages caused by the negligent act
of its driver who was not its special agent.
ACCORDINGLY, the Motion for Reconsideration dated
January 26, 1990 is DENIED WITH FINALITY. The
decision of this Court in G.R. No. 55963 and G.R. No.
61045 dated December 1, 1989 is hereby AFFIRMED.
Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea
and Regalado, JJ., concur.
Fernan, C.J., Melencio-Herrera and Gutierrez, Jr., JJ.,
concur in the result.
IV. PRIMARY LIABILITY
a. Possessors/users of animals
ARTICLE 2183. The possessor of an animal or
whoever may make use of the same is responsible for
the damage which it may cause, although it may
escape or be lost. This responsibility shall cease only
in case the damage should come from force majeure
or from the fault of the person who has suffered
damage. (1905)
PURITA MIRANDA VESTIL and AGUSTIN VESTIL
vs. INTERMEDIATE APPELLATE COURT, DAVID
UY and TERESITA UY
G.R. No. 74431, 6 November 1989.
CRUZ, J p:
329
Little Theness Tan Uy was dead at the age of three. Her
parents said she died because she was bitten by a dog
of the petitioners, but the latter denied this, claiming
they had nothing to do with the dog. The Uys sued the
Vestils, who were sustained by the trial court. On
appeal, the decision of the court a quo was reversed in
favor of the Uys. The Vestils are now before us. They
ask us to set aside the judgment of the respondent court
and to reinstate that of the trial court.
On July 29, 1975, Theness was bitten by a dog while she
was playing with a child of the petitioners in the house
of the late Vicente Miranda, the father of Purita Vestil,
at F. Ramos Street in Cebu City. She was rushed to the
Cebu General Hospital, where she was treated for
"multiple lacerated wounds on the forehead" and
administered an anti-rabies vaccine by Dr. Antonio
Tautjo. She was discharged after nine days but was re-
admitted one week later due to "vomiting of saliva."
The following day, on August 15, 1975, the child died.
The cause of death was certified as broncho-
pneumonia.
Seven months later, the Uys sued for damages, alleging
that the Vestils were liable to them as the possessors of
"Andoy," the dog that bit and eventually killed their
daughter. The Vestils rejected the charge, insisting that
the dog belonged to the deceased Vicente Miranda, that
it was a tame animal, and that in any case no one had
witnessed it bite Theness. After trial, Judge Jose R.
Ramolete of the Court of First Instance of Cebu
sustained the defendants and dismissed the complaint.
The respondent court arrived at a different conclusion
when the case was appealed. It found that the Vestils
were in possession of the house and the dog and so
should be responsible under Article 2183 of the Civil
Code for the injuries caused by the dog. It also held that
the child had died as a result of the dog bites and not
for causes independent thereof as submitted by the
appellees. Accordingly, the Vestils were ordered to pay
the Uys damages in the amount of P30,000.00 for the
death of Theness, P12,000.00 for medical and
hospitalization expenses, and P2,000.00 as attorney's
fees.
In the proceedings now before us, Purita Vestil insists
that she is not the owner of the house or of the dog left
by her father as his estate has not yet been partitioned
and there are other heirs to the property. Pursuing the
logic of the Uys, she claims, even her sister living in
Canada would be held responsible for the acts of the
dog simply because she is one of Miranda's heirs.
However, that is hardly the point. What must be
determined is the possession of the dog that admittedly
was staying in the house in question, regardless of the
ownership of the dog or of the house.
Article 2183 reads as follows:
 The possessor of an animal or
whoever may make use of the same is
responsible for the damage which it
may cause, although it may escape or
be lost. This responsibility shall cease
only in case the damage should come
from force majeure or from the fault of
the person who has suffered damage.
Thus, in Afialda v. Hisole, a person hired as caretaker of
a carabao gored him to death and his heirs thereupon
sued the owner of the animal for damages. The
complaint was dismissed on the ground that it was the
caretaker's duty to prevent the carabao from causing
injury to any one, including himself.
Purita Vestil's testimony that she was not in possession
of Miranda's house is hardly credible. She said that the
occupants of the house left by her father were related to
him ("one way or the other") and maintained
themselves out of a common fund or by some kind of
arrangement (on which, however, she did not
elaborate). She mentioned as many as ten of such
relatives who had stayed in the house at one time or
another although they did not appear to be close kin. 8
She at least implied that they did not pay any rent,
presumably because of their relation with Vicente
Miranda notwithstanding that she herself did not seem
to know them very well.
There is contrary evidence that the occupants of the
house were boarders (or more of boarders than
relatives) who paid the petitioners for providing them
with meals and accommodations. It also appears that
Purita Vestil had hired a maid, Dolores Jumao-as, who
did the cooking and cleaning in the said house for its
occupants. Her mother, Pacita, who was a nursemaid
of Purita herself, categorically declared that the
petitioners were maintaining boarders in the house
where Theness was bitten by a dog. Another witness,
Marcial Lao, testified that he was indeed a boarder and
that the Vestils were maintaining the house for business
purposes. And although Purita denied paying the
water bills for the house, the private respondents
submitted documentary evidence of her application for
water connection with the Cebu Water District, which
strongly suggested that she was administering the
house in question.
While it is true that she is not really the owner of the
house, which was still part of Vicente Miranda's estate,
there is no doubt that she and her husband were its
possessors at the time of the incident in question. She
was the only heir residing in Cebu City and the most
logical person to take care of the property, which was
only six kilometers from her own house. Moreover,
there is evidence showing that she and her family
regularly went to the house, once or twice weekly,
according to at least one witness, and used it virtually
as a second house. Interestingly, her own daughter was
playing in the house with Theness when the little girl
was bitten by the dog. The dog itself remained in the
house even after the death of Vicente Miranda in 1973
and until 1975, when the incident in question occurred.
It is also noteworthy that the petitioners offered to
assist the Uys with their hospitalization expenses
although Purita said she knew them only casually.
The petitioners also argue that even assuming that they
were the possessors of the dog that bit Theness, there
was no clear showing that she died as a result thereof.
On the contrary, the death certificate declared that she
died of broncho-pneumonia, which had nothing to do
with the dog bites for which she had been previously
hospitalized.
The Court need not involve itself in an extended
scientific discussion of the causal connection between
the dog bites and the certified cause of death except to
note that, first, Theness developed hydrophobia, a
symptom of rabies, as a result of the dog bites, and
second, that asphyxia broncho-pneumonia, which
ultimately caused her death, was a complication of
rabies.
That Theness became afraid of water after she was
bitten by the dog is established by the following
testimony of Dr. Tautjo:
COURT: I think there was mention of
rabies in the report in the
second admission?
A: Now, the child was continuously
vomiting just before I referred to
Dr. Co earlier in the morning
and then the father, because the
child was asking for water, the
father tried to give the child
water and this child went under
the bed, she did not like to drink
the water and there was fright in
her eyeballs. For this reason,
because I was in danger there
was rabies, I called Dr. Co.
Q: In other words, the child had
hydrophobia?
A: Yes, sir.
As for the link between rabies
and broncho-pneumonia, the
doctor had the following to say
under oath:
A: Now, as I said before, broncho-
pneumonia can result from
physical, chemical and bacterial
means . . . It can be the result of
infection, now, so if you have
any other disease which can
lower your resistance you can
also get pneumonia.
xxx xxx xxx
Q: Would you say that a person
who has rabies may die of
330
 complication which is broncho-
pneumonia?
A: Yes.
Q: For the record, I am manifesting
that this book shown the witness
is known as CURRENT
DIANOSIS & TREATMENT,
1968 by Henry Brainerd, Sheldon
Margen and Milton Chaton.
Now, I invite your attention,
doctor, to page 751 of this book
under the title "Rabies." There is
on this page, "Prognosis" as a
result of rabies and it says:
Once the symptoms have
appeared death inevitably occurs
after 2-3 days as a result of
cardiac or respiratory failure or
generalized paralysis.
After a positive diagnosis of
rabies or after a bite by a
suspected animal if the animal
cannot be observed or if the bite
is on the head, give rabies
vaccine (duck embryo). Do you
believe in this statement?
A: Yes.
Q: Would you say therefore that
persons who have rabies may die
of respiratory failure which leave
in the form of broncho-
pneumonia?
A: Broncho-pneumonia can be a
complication of rabies.
On the strength of the foregoing testimony, the Court
finds that the link between the dog bites and the
certified cause of death has been satisfactorily
established. We also reiterate our ruling in Sison v. Sun
Life Assurance Company of Canada, that the death
certificate is not conclusive proof of the cause of death
but only of the fact of death. Indeed, the evidence of the
child's hydrophobia is sufficient to convince us that she
died because she was bitten by the dog even if the
death certificate stated a different cause of death.
The petitioner's contention that they could not be
expected to exercise remote control of the dog is not
acceptable. In fact, Article 2183 of the Civil Code holds
the possessor liable even if the animal should "escape or
be lost" and so be removed from his control. And it
does not matter either that as the petitioners also
contend, the dog was tame and was merely provoked
by the child into biting her. The law does not speak
only of vicious animals but covers even tame ones as
long as they cause injury. As for the alleged
provocation, the petitioners forget that Theness was
only three years old at the time she was attacked and
can hardly be faulted for whatever she might have done
to the animal.
331
It is worth observing that the above defenses of the
petitioners are an implied rejection of their original
posture that there was no proof that it was the dog in
their father's house that bit Theness.
According to Manresa, the obligation imposed by
Article 2183 of the Civil Code is not based on the
negligence or on the presumed lack of vigilance of the
possessor or user of the animal causing the damage. It
is based on natural equity and on the principle of social
interest that he who possesses animals for his utility,
pleasure or service must answer for the damage which
such animal may cause.
We sustain the findings of the Court of Appeals and
approve the monetary awards except only as to the
medical and hospitalization expenses, which are
reduced to P2,026.69, as prayed for in the complaint.
While there is no recompense that can bring back to the
private respondents the child they have lost, their pain
should at least be assuaged by the civil damages to
which they are entitled.
WHEREFORE, the challenged decision is AFFIRMED
as above modified. The petition is DENIED, with costs
against the petitioners. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ.,
concur.
b. Owners of motor vehicles
ARTICLE 2184. In motor vehicle mishaps, the owner
is solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of the due
diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been
found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding
two months.
If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable. (n)
CAEDO, ET AL. vs. YU KHE THAI
and RAFAEL BERNARDO
G.R. No. L-20392, 18 December 1968.
See supra.
MALAYAN INSURANCE CO., INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. L-36413, 26 September 1988, 165 SCRA 536
PADILLA, J p:
Review on certiorari of the judgment of the respondent
appellate court in CA-G.R. No. 47319-R, dated 22
February 1973, which affirmed, with some
modifications, the decision dated 27 April 1970,
rendered in Civil Case No. U-2021 of the Court of First
Instance of Pangasinan.

The antecedent facts of the case are as follows:
On 29 March 1967, herein petitioner, Malayan
Insurance Co., Inc., issued in favor of private
respondent Sio Choy Private Car Comprehensive Policy
No. MRO/PV-15753, effective from 18 April 1967 to 18
April 1968, covering a Willys jeep with Motor No. ET-
03023, Serial No. 351672, and Plate No. J-21536, Quezon
City, 1967. The insurance coverage was for "own
damage" not to exceed P600.00 and "third-party
liability" in the amount of P20,000.00.
During the effectivity of said insurance policy, and
more particularly on 19 December 1967, at about 3:30
o'clock in the afternoon, the insured jeep, while being
driven by one Juan P. Campollo, an employee of the
respondent San Leon Rice Mill, Inc., collided with a
passenger bus belonging to the respondent Pangasinan
Transportation Co., Inc. (PANTRANCO, for short) at
the national highway in Barrio San Pedro, Rosales
Pangasinan, causing damage to the insured vehicle and
injuries to the driver, Juan P. Campollo, and the
respondent Martin C. Vallejos, who was riding in the
ill-fated jeep.
As a result, Martin C. Vallejos filed an action for
damages against Sio Choy, Malayan Insurance Co., Inc.
and the PANTRANCO before the Court of First
Instance of Pangasinan, which was docketed as Civil
Case No. U-2021. He prayed therein that the defendants
be ordered to pay him, jointly and severally, the
amount of P15,000.00, as reimbursement for medical
and hospital expenses; P6,000.00, for lost income;
P51,000.00 as actual, moral and compensatory damages;
and P5,000.00, for attorney's fees.
Answering, PANTRANCO claimed that the jeep of Sio
Choy was then operated at an excessive speed and
bumped the PANTRANCO bus which had moved to,
and stopped at, the shoulder of the highway in order to
avoid the jeep; and that it had observed the diligence of
a good father of a family to prevent damage, especially
in the selection and supervision of its employees and in
the maintenance of its motor vehicles. It prayed that it
be absolved from any and all liability.
Defendant Sio Choy and the petitioner insurance
company, in their answer, also denied liability to the
plaintiff, claiming that the fault in the accident was
solely imputable to the PANTRANCO.
Sio Choy, however, later filed a separate answer with a
cross-claim against the herein petitioner wherein he
alleged that he had actually paid the plaintiff, Martin C.
Vallejos, the amount of P5,000.00 for hospitalization
and other expenses, and, in his cross-claim against the
herein petitioner, he alleged that the petitioner had
issued in his favor a private car comprehensive policy
wherein the insurance company obligated itself to
indemnify Sio Choy, as insured, for the damage to his
motor vehicle, as well as for any liability to third
persons arising out of any accident during the
effectivity of such insurance contract, which policy was
in full force and effect when the vehicular accident
complained of occurred. He prayed that he be
reimbursed by the insurance company for the amount
that he may be ordered to pay.
Also later, the herein petitioner sought, and was
granted, leave to file a third-party complaint against the
San Leon Rice Mill, Inc. for the reason that the person
driving the jeep of Sio Choy, at the time of the accident,
was an employee of the San Leon Rice Mill, Inc.
performing his duties within the scope of his assigned
task, and not an employee of Sio Choy; and that, as the
San Leon Rice Mill, Inc. is the employer of the deceased
driver, Juan P. Campollo, it should be liable for the acts
of its employee, pursuant to Art. 2180 of the Civil Code.
The herein petitioner prayed that judgment be rendered
against the San Leon Rice Mill, Inc., making it liable for
the amounts claimed by the plaintiff and/or ordering
said San Leon Rice Mill, Inc. to reimburse and
indemnify the petitioner-for any sum that it may be
ordered to pay the plaintiff.
After trial, judgment was rendered as follows:
xxx xxx xxx
On appeal, the respondent Court of Appeals affirmed
the judgment of the trial court that Sio Choy, the San
Leon Rice Mill, Inc. and the Malayan Insurance Co., Inc.
are jointly and severally liable for the damages
awarded to the plaintiff Martin C. Vallejos. It ruled,
however, that the San Leon Rice Mill, Inc. has no
obligation to indemnify or reimburse the petitioner
insurance company for whatever amount it has been
ordered to pay on its policy, since the San Leon Rice
Mill, Inc. is not a privy to the contract of insurance
between Sio Choy and the insurance company.
Hence, the present recourse by petitioner insurance
company.
The petitioner prays for the reversal of the appellate
court's judgment, or, in the alternative, to order the San
Leon Rice Mill, Inc. to reimburse petitioner any amount,
in excess of one-half (1/2) of the entire amount of
damages, petitioner may be ordered to pay jointly and
severally with Sio Choy.
The Court, acting upon the petition, gave due course to
the same, but "only insofar as it concerns the alleged
liability of respondent San Leon Rice Mill, Inc. to
petitioner, it being understood that no other aspect of
the decision of the Court of Appeals shall be reviewed,
hence, execution may already issue in favor of
respondent Martin C. Vallejos against the respondents,
without prejudice to the determination of whether or
not petitioner shall be entitled to reimbursement by
respondent San Leon Rice Mill, Inc. for the whole or
part of whatever the former may pay on the P20,000.00
it has been adjudged to pay respondent Vallejos."
332

However, in order to determine the alleged liability of
respondent San Leon Rice Mill, Inc. to petitioner, it is
important to determine first the nature or basis of the
liability of petitioner to respondent Vallejos, as
compared to that of respondents Sio Choy and San
Leon Rice Mill, Inc.
Therefore, the two (2) principal issues to be resolved are
(1) whether the trial court, as upheld by the Court of
Appeals, was correct in holding petitioner and
respondents Sio Choy and San Leon Rice Mill, Inc.
"solidarily liable" to respondent Vallejos; and (2)
whether petitioner is entitled to be reimbursed by
respondent San Leon Rice Mill, Inc. for whatever
amount petitioner has been adjudged to pay
respondent Vallejos on its insurance policy.
As to the first issue, it is noted that the trial court found,
as affirmed by the appellate court, that petitioner and
respondents Sio Choy and San Leon Rice Mill, Inc. are
jointly and severally liable to respondent Vallejos.
We do not agree with the aforesaid ruling. We hold
instead that it is only respondents Sio Choy and San
Leon Rice Mill, Inc., (to the exclusion of the petitioner)
that are solidarily liable to respondent Vallejos for the
damages awarded to Vallejos.
It must be observed that respondent Sio Choy is made
liable to said plaintiff as owner of the ill-fated Willys
jeep, pursuant to Article 2184 of the Civil Code which
provides:
"Art. 2184. In motor vehicle
mishaps, the owner is solidarily liable
with his driver, if the former, who
was in the vehicle, could have, by the
use of due diligence, prevented the
misfortune it is disputably presumed
that a driver was negligent, if he had
been found guilty of reckless driving
or violating traffic regulations at least
twice within the next preceding two
months.
"If the owner was not in the motor
vehicle, the provisions of article 2180
are applicable."
On the other hand, it is noted that the basis of liability
of respondent San Leon Rice Mill, Inc. to plaintiff
Vallejos, the former being the employer of the driver of
the Willys jeep at the time of the motor vehicle mishap,
is Article 2180 of the Civil Code which reads:
"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.
333
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.
xxx xxx xxx
"The responsibility treated in this
article shall cease when the persons
herein mentioned proved that they
observed all the diligence of a good
father of a family to prevent damage."
It thus appears that respondents Sio Choy and San
Leon Rice Mill, Inc. are the principal tortfeasors who
are primarily liable to respondent Vallejos. The law
states that the responsibility of two or more persons
who are liable for a quasi-delict is solidary.
xxx xxx xxx
WHEREFORE, the petition is GRANTED. The decision
of the trial court, as affirmed by the Court of Appeals, is
hereby AFFIRMED, with the modification above-
mentioned. Without pronouncement as to costs.
SO ORDERED.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ .,
concur.
c. Manufacturers and processors
ARTICLE 2187. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar goods
shall be liable for death or injuries caused by any
noxious or harmful substances used, although no
contractual relation exists between them and the
consumers. (n)
d. Municipal Corporations
ARTICLE 2189. Provinces, cities and municipalities
shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the
defective condition of roads, streets, bridges, public
buildings, and other public works under their control
or supervision. (n)
LOCAL GOVERNMENT CODE OF 1991 (R.A. No.
7160)
SECTION 24. Liability for Damages. — Local
government units and their officials are not exempt
from liability for death or injury to persons or damage
to property
 CITY OF MANILA vs. GENERO M. TEOTICO and
THE COURT OF APPEALS
G.R. No. L-23052, 29 January 1968, 22 SCRA 267
CONCEPCION, C.J p:
Appeal by certiorari from a decision of the Court of
Appeals.
On January 27, 1958, at about 8:00 p.m., Genaro N.
Teotico was at the corner of the Old Luneta and P.
Burgos Avenue, Manila, within a "loading and
unloading" zone, waiting for a jeepney to take him
down town. After waiting for about five minutes, he
managed to hail a jeepney that came along to a stop. As
he stepped down from the curb to board the jeepney,
and took a few steps, he fell inside an uncovered and
unlighted catchbasin or manhole on P. Burgos Avenue.
Due to the fall, his head hit the rim of the manhole
breaking his eyeglasses and causing broken pieces
thereof to pierce his left eyelid. As blood flowed
therefrom, impairing his vision, several persons came
to his assistance and pulled him out of the manhole.
One of them brought Teotico to the Philippine General
Hospital, where his injuries were treated, after which
he was taken home. In addition to the lacerated wound
in his left upper eyelid, Teotico suffered contusions on
the left thigh, the left upper arm, the right leg and the
upper lip, apart from an abrasion on the right infra-
patella region. These injuries and the allergic eruptions
caused by anti-tetanus injections administered to him in
the hospital, required further medical treatment by a
private practitioner who charged therefor P1,400.00.
As a consequence of the foregoing occurrence, Teotico
filed, with the Court of First Instance of Manila, a
complaint — which was, subsequently, amended — for
damages against the City of Manila, its mayor, city
engineer, city health officer, city treasurer and chief of
police. As stated in the decision of the trial court, and
quoted with approval by the Court of Appeals,
"At the time of the incident, plaintiff
was a practicing public accountant, a
businessman and a professor at the
University of the East. He held
responsible positions in various
business firms like the Philippine
Merchandising Co., the A. U.
Valencia and Co., the Silver Swan
Manufacturing Company and the
Sincere Packing Corporation. He was
also associated with several civic
organizations such as the Wack Wack
Golf Club, the Chamber of Commerce
of the Philippines, Y's Men Club of
Manila and the Knight's of Rizal. As a
result of the incident, plaintiff was
prevented from engaging in his
customary occupation for twenty
days. Plaintiff has lost a daily income
of about P50.00 during his incapacity
to work. Because of the incident, he
was subjected to humiliation and
ridicule by his business associates
and friends. During the period of his
treatment, plaintiff was under
constant fear and anxiety for the
welfare of his minor children since he
was their only support. Due to the
filing of this case, plaintiff has
obligated himself to pay his counsel
the sum of P2,000.00.
"On the other hand, the defense
presented evidence, oral and
documentary, to prove that the Storm
Drain Section, Office of the City
Engineer of Manila, received a report
of the uncovered condition of a
catchbasin at the corner of P. Burgos
and Old Luneta Streets, Manila, on
January 24, 1958, but the same was
covered on the same day (Exhibit 4);
that again the iron cover of the same
catchbasin was reported missing on
January 30, 1958, but the said cover
was replaced the next day (Exhibit 5);
that the Office of the City Engineer
never received any report to the effect
that the catchbasin in question was
not covered between January 25 and
29, 1958; that it has always been a
policy of the said office, which is
charged with the duty of installation,
repair and care of storm drains in the
City of Manila, that whenever a
report is received from whatever
source of the loss of a catchbasin
cover, the matter is immediately
attended to, either by immediately
replacing the missing cover or
covering the catchbasin with steel
matting; that because of the lucrative
scrap iron business then prevailing,
stealing of iron catchbasin covers was
rampant; that the Office of the City
Engineer has filed complaints in
court resulting from theft of said iron
covers; that in order to prevent such
thefts, the city government has
changed the position and layout of
catch basins in the City by
constructing them under the
sidewalk with concrete cement covers
and openings on the sides of the
gutter; and that these changes had
been undertaken by the city from
time to time whenever funds were
available."
After appropriate proceedings the Court of First
Instance of Manila rendered the aforementioned
334
decision sustaining the theory of the defendants and
dismissing the amended complaint, without costs.
On appeal taken by plaintiff, this decision was affirmed
by the Court of Appeals, except insofar as the City of
Manila is concerned, which was sentenced to pay
damages in the aggregate sum of P6,750.00.
Hence, this appeal by the City of Manila.
The first issue raised by the latter is whether the present
case is governed by Section 4 of Republic Act No. 409
(Charter of the City of Manila) reading:
"The city shall not be liable or held
for damages or injuries to persons or
property arising from the failure of
the Mayor, the Municipal Board, or
any other city officer, to enforce the
provisions of this chapter, or any
other law or ordinance, or from
negligence of said Mayor, Municipal
Board, or other officers while
enforcing or attempting to enforce
said provisions."
or by Article 2189 of the Civil Code of the Philippines,
which provides:
"Provinces, cities and municipalities
shall be liable for damages for the
death of, or injuries suffered by, any
person by reason of the defective
condition of roads, streets, bridges,
public buildings, and other public
works under their control or
supervision."
Manila maintains that the former provision should
prevail over the latter, because Republic Act 409 is a
special law, intended exclusively for the City of Manila,
whereas the Civil Code is a general law, applicable to
the entire Philippines.
The Court of Appeals, however, applied the Civil Code,
and, we think, correctly. It is true that, insofar as its
territorial application is concerned, Republic Act No.
409 is a special law and the Civil Code a general
legislation; but, as regards the subject- matter of the
provisions above quoted, Section 4 of Republic Act 409
establishes a general rule regulating the liability of the
City of Manila for "damages or injury to persons or
property arising from the failure of" city officers "to
enforce the provisions of" said Act "or any other law or
ordinance, or from negligence" of the city "Mayor,
Municipal Board, or other officers while enforcing or
attempting to enforce said provisions." Upon the other
hand, Article 2189 of the Civil Code constitutes a
particular prescription making "provinces, cities and
municipalities . . . liable for damages for the death of, or
injury suffered by, any person by reason" — specifically
— "of the defective condition of roads, streets, bridges,
335
public buildings, and other public works under their
control or supervision." In other words, said section 4
refers to liability arising from negligence, in general,
regardless of the object thereof, whereas Article 2189
governs liability due to "defective streets, "in particular.
Since the present action is based upon the alleged
defective condition of a road, said Article 2189 is
decisive thereon.
It is urged that the City of Manila cannot be held liable
to Teotico for damages: 1) because the accident
involving him took place in a national highway; and 2)
because the City of Manila has not been negligent in
connection therewith.
As regards the first issue, we note that it is based upon
an allegation of fact not made in the answer of the City.
Moreover, Teotico alleged in his complaint, as well as
in his amended complaint, that his injuries were due to
the defective condition of a street which is "under the
supervision and control" of the City. In its answer to the
amended complaint, the City, in turn, alleged that "the
streets aforementioned were and have been constantly
kept in good condition and regularly inspected and the
storm drains and manholes thereof covered, by the
defendant City and its officers concerned" who "have
been ever vigilant and zealous in the performance of
their respective functions and duties as imposed upon
them by law." Thus, the City had, in effect, admitted
that P. Burgos Avenue was and is under its control and
supervision.
Moreover, the assertion to the effect that said avenue is
a national highway was made, for the first time, in its
motion for reconsideration of the decision of the Court
of Appeals. Such assertion raised, therefore, a question
of fact, which had not been put in issue in the trial
court, and can not be set up, for the first time, on
appeal, much less after the rendition of the decision of
the appellate court, in a motion for the reconsideration
thereof.
At any rate, under Article 2189 of the Civil Code, it is
not necessary for the liability therein established to
attach that the defective roads or streets belong to the
province, city or municipality from which
responsibility is exacted. What said article requires is
that the province, city or municipality have either
"control or supervision" over said street or road. Even if
P. Burgos avenue were, therefore, a national highway,
this circumstance would not necessarily detract from its
"control or supervision" by the City of Manila, under
Republic Act 409. In fact Section 18(x) thereof provides:
"SEC. 18. Legislative powers. — The
Municipal Board shall have the
following legislative powers:
xxx xxx xxx
"(x) Subject to the provisions of
existing law to provide for the laying
 out, construction and improvement,
and to regulate the use of streets,
avenues, alleys, sidewalks, wharves,
piers, parks, cemeteries, and other
public places; to provide for lighting,
cleaning, and sprinkling of streets
and public places; . . . to provide for
the inspection of, fix the license fees
for and regulate the openings in the
same for the laying of gas, water,
sewer and other pipes, the building
and repair of tunnels, sewers, and
drains, and all structures in and
under the same and the erecting of
poles and the stringing of wires
therein; to provide for and regulate
cross-walks, curbs, and gutters
therein; . . . to regulate traffic and
sales upon the streets and other
public places; to provide for the
abatement of nuisances in the same
and punish the authors or owners
thereof; to provide for the
construction and maintenance, and
regulate the use, of bridges, viaducts,
and culverts; to prohibit and regulate
ball playing, kiteflying, hoop rolling,
and other amusements which may
annoy persons using the streets and
public places, or frighten horses or
other animals; to regulate the speed
of horses and other animals, motor
and other vehicles, cars, and
locomotives within the limits of the
city; to regulate the lights used on all
such vehicles, cars, and locomotives; .
. . to provide for and change the
location, grade, and crossing of
railroads, and compel any such
railroad to raise or lower its tracks to
conform to such provisions or
changes; and to require railroad
companies to fence their property, or
any part thereof, to provide suitable
protection against injury to persons
or property, and to construct and
repair ditches, drains, sewers, and
culverts along and under their tracts,
so that the natural drainage of the
streets and adjacent property shall
not be obstructed."
This authority has been neither withdrawn nor
restricted by Republic Act No. 917 and Executive Order
No. 113, dated May 2, 1955, upon which the City relies.
Said Act governs the disposition or appropriation of the
highway funds and the giving of aid to provinces,
chartered cities and municipalities in the construction
of roads and streets within their respective boundaries,
and Executive Order No. 113 merely implements the
provisions of said Republic Act No. 917, concerning the
disposition and appropriation of the highway funds.
Moreover, it provides that "the construction,
maintenance and improvement of national primary,
national secondary and national aid provincial and city
roads shall be accomplished by the Highway District
Engineers and Highway City Engineers under the
supervision of the Commissioner of Public Highways
and shall be financed from such appropriations as may
be authorized by the Republic of the Philippines in
annual or special appropriation Acts."
Then, again, the determination of whether or not P.
Burgos Avenue is under the control or supervision of
the City of Manila and whether the latter is guilty of
negligence, in connection with the maintenance of said
road, which were decided by the Court of Appeals in
the affirmative, is one of fact, and the findings of said
Court, thereon are not subject to our review.
WHEREFORE, the decision appealed from should be as
it is hereby affirmed, with costs against the City of
Manila. It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar,
Sanchez, Ruiz Castro, Angeles and Fernando, JJ.,
concur.
TORIO, ET AL. vs. FONTANILLA, ET AL.
G.R. Nos. L-30183 and L-29993, 23 October 1978.
MUÑOZ PALMA, J p:
These Petitions for review present the issue of whether
or not the celebration of a town fiesta authorized by a
municipal council under Sec. 2282 of the Municipal
Law as embodied in the Revised Administrative Code
is a governmental or a corporate or proprietary
function of the municipality.
A resolution of that issue will lead to another, viz: the
civil liability for damages of the Municipality of
Malasiqui, and the members of the Municipal Council
of Malasiqui, province of Pangasinan, for a death which
occurred during the celebration of the town fiesta on
January 22, 1959, and which was attributed to the
negligence of the municipality and its council members.
The following facts are not in dispute:
On October 21, 1958, the Municipal Council of
Malasiqui, Pangasinan, passed Resolution No. 159
whereby "it resolved to manage the 1959 Malasiqui
town fiesta celebration on January 21, 22, and 23, 1959."
Resolution No. 182 was also passed creating the "1959
Malasiqui Town Fiesta Executive Committee" which in
turn organized a subcommittee on entertainment and
stage, with Jose Macaraeg as Chairman. The council
appropriated the amount of P100.00 for the
construction of 2 stages, one for the "zarzuela" and
another for the "cancionan". Jose Macaraeg supervised
the construction of the stage and as constructed the
stage for the "zarzuela" was "5-1/2 meters by 8 meters
in size, had a wooden floor high at the rear and was
336
supported by 24 bamboo posts — 4 in a row in front, 4
in the rear and 5 on each side — with bamboo braces."
The "zarzuela" entitled "Midas Extravaganza" was
donated by an association of Malasiqui employees of
the Manila Railroad Company in Caloocan, Rizal. The
troupe arrived in the evening of January 22 for the
performance and one of the members of the group was
Vicente Fontanilla. The program started at about 10:15
o'clock that evening with some speeches, and many
persons went up the stage. The "zarzuela" then began
but before the dramatic part of the play was reached,
the stage collapsed and Vicente Fontanilla who was at
the rear of the stage was pinned underneath. Fontanilla
was taken to the San Carlos General Hospital where he
died in the afternoon of the following day.
The heirs of Vicente Fontanilla filed a complaint with
the Court of First Instance of Manila on September 11,
1959 to recover damages. Named party-defendants
were the Municipality of Malasiqui, the Municipal
Council of Malasiqui and all the individual members of
the Municipal Council in 1959.
Answering the complaint defendant municipality
invoked inter alia the principal defense that as a legally
and duly organized public corporation it performs
sovereign functions and the holding of a town fiesta
was an exercise of its governmental functions from
which no liability can arise to answer for the negligence
of any of its agents.
The defendant councilors in turn maintained that they
merely acted as agents of the municipality in carrying
out the municipal ordinance providing for the
management of the town fiesta celebration and as such
they are likewise not liable for damages as the
undertaking was not one for profit; furthermore. they
had exercised due care and diligence in implementing
the municipal ordinance.
After trial, the Presiding Judge, Hon. Gregorio T.
Lantin, narrowed the issue to whether or not the
defendants exercised due diligence in the construction
of the stage. From his findings he arrived at the
conclusion that the Executive Committee appointed by
the municipal council had exercised due diligence and
care like a good father of the family in selecting a
competent man to construct a stage strong enough for
the occasion and that if it collapsed that was due to
forces beyond the control of the committee on
entertainment, consequently, the defendants were not
liable for damages for the death of Vicente Fontanilla.
The complaint was accordingly dismissed in a decision
dated July 10, 1962.
The Fontanillas appealed to the Court of Appeals. In a
decision promulgated on October 31, 1968, the Court of
Appeals through its Fourth Division composed at the
time of Justices Salvador V. Esguerra, Nicasio A. Yatco
and Eulogio S. Serrano reversed the trial court's
decision and ordered all the defendants-appellees to
337
pay jointly and severally the heirs of Vicente Fontanilla
the sums of P12,000.00 by way of moral and actual
damages: P1,200.00 as attorney's fees; and the costs.
The case is now before Us on various assignments of
errors all of which center on the proposition stated at
the opening sentence of this Opinion and which We
repeat:
Is the celebration of a town fiesta an undertaking in the
exercise of a municipality's governmental or public
function or is it of a private or proprietary character?
1. Under Philippine laws municipalities are political
bodies corporate and as such as endowed with the
faculties of municipal corporations to be exercised by
and through their respective municipal governments in
conformity with law, and in their proper corporate
name, they may, inter alia, sue and be sued, and
contract and be contracted with.
The powers of a municipality are twofold in character
— public, governmental, or political on the one hand,
and corporate, private, or proprietary on the other.
Governmental powers are those exercised by the
corporation in administering the powers of the state
and promoting the public welfare and they include the
legislative, judicial, public, and political, Municipal
powers on the other hand are exercised for the special
benefit and advantage of the community and include
those which are ministerial, private and corporate.
As to when a certain activity is governmental and when
proprietary or private, that is generally a difficult
matter to determine. The evolution of the municipal
law in American Jurisprudence, for instance, has shown
that none of the tests which have evolved and are stated
in textbooks have set down a conclusive principle or
rule, so that each case will have to be determined on the
basis of attending circumstances.
In McQuillin on Municipal Corporations, the rule is
stated thus: "A municipal corporation proper has . . . a
public character as regards the state at large insofar as it
is its agent in government, and private (so-cases)
insofar as it is to promote local necessities and
conveniences for its own community."
Another statement of the test is given in City of Kokomo
v. Loy, decided by the Supreme Court of Indiana in
1916, thus:
"Municipal corporations exist in a
dual capacity, and their functions are
twofold. In one they exercise the right
springing from sovereignty, and
while in the performance of the
duties pertaining thereto, their acts
are political and governmental. Their
officers and agents in such capacity,
though elected or appointed by them,
are nevertheless public functionaries
 performing a public service, and as
such they are officers, agents, and
servants of the state. In the other
capacity the municipalities exercise a
private, proprietary or corporate
right, arising from their existence as
legal persons and not as public
agencies. Their officers and agents in
the performance of such functions act
in behalf of the municipalities in their
corporate or individual capacity, and
not for the state or sovereign power."
(112 N.E., 994-995)
In the early Philippine case of Mendoza v. de Leon, 1916,
the Supreme Court, through Justice Grant T. Trent,
relying mainly on American Jurisprudence classified
certain activities of the municipality as governmental,
e.g.: regulations against fire, disease, preservation of
public peace, maintenance of municipal prisons,
establishment of schools, post-offices, etc. while the
following are corporate or proprietary in character, viz:
municipal waterwork, slaughterhouses, markets,
stables, bathing establishments, wharves, ferries, and
fisheries. 8 Maintenance of parks, golf courses,
cemeteries and airports among others, are also
recognized as municipal or city activities of a
proprietary character. 9
2. This distinction of powers becomes important for
purposes of determining the liability of the
municipality for the acts of its agents which result in an
injury to third persons.
If the injury is caused in the course of the performance
of a governmental function or duty no recovery, as a
rule, can be had from the municipality unless there is
an existing statute on the matter, 10 nor from its
officers, so long as they performed their duties honestly
and in good faith or that they did not act wantonly and
maliciously. In Palafox, et al. v. Province of Ilocos Norte, et
al., 1958, a truck driver employed by the provincial
government of Ilocos Norte ran over Proceto Palafox in
the course of his work at the construction of a road. The
Supreme Court in affirming the trial court's dismissal of
the complaint for damages held that the province could
not be made liable because its employee was in the
performance of a governmental function — the
construction and maintenance of roads — and however
tragic and deplorable it may be, the death of Palafox
imposed on the province no duty to pay monetary
consideration.
With respect to proprietary functions, the settled rule is
that a municipal corporation can be held liable to third
persons ex contractu or ex delicto.
"Municipal corporations are subject
to be sued upon contracts and in tort.
...
xxx xxx xxx
"The rule of law is a general one, that
the superior or employer must
answer civilly for the negligence or
want of skill of its agent or servant in
the course or line of his employment,
by which another, who is free from
contributory fault, is injured.
Municipal corporations under the
conditions herein stated, fall within
the operation of this rule of law, and
are liable, accordingly, to civil actions
for damages when the requisite
elements of liability coexist . . ."
(Dillon on Municipal Corporations,
5th ed. Secs, 1610, 1647, cited in
Mendoza v. de Leon, supra, 514)
3. Coming to the case before Us, and applying the
general tests given above, We hold that the holding of
the town fiesta in 1959 by the municipality of Malasiqui
Pangasinan, was an exercise of a private or proprietary
function of the municipality.
Section 2282 of the Chapter on Municipal Law of the
Revised Administrative Code provides:
"Section 2282. Celebration of
fiesta. — A fiesta may be held in each
municipality not oftener than once a
year upon a date fixed by the
municipal council. A fiesta shall not
be held upon any other date than that
lawfully fixed therefor, except when,
for weighty reasons, such as
typhoons, inundations, earthquakes,
epidemics, or other public calamities,
the fiesta cannot be held in the date
fixed, in which case it may be held at
a later date in the same year, by
resolution of the council."
This provision simply gives authority to the
municipality to celebrate a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta
even if the purpose is to commemorate a religious or
historical event of the town is in essence an act for the
special benefit of the community and not for the general
welfare of the public performed in pursuance of a
policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to
provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks
is not a source of income for the town, nonetheless it is
private undertaking as distinguished from the
maintenance of public schools, jails, and the like which
are for public service.
As stated earlier, there can be no hard and fast rule for
purposes of determining the true nature of an
undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be
338
considered and will be decisive. The basic element,
however beneficial to the public the undertaking may
be, is that it is governmental in essence, otherwise, the
function becomes private or proprietary in character.
Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta.
4. It follows that under the doctrine of respondent
superior, petitioner-municipality is to be held liable for
damages for the death of Vicente Fontanilla if that was
attributable to the negligence of the municipality's
officers, employees, or agents.
"Art. 2176, Civil Code: Whoever by
act or omission causes damage to
another, there being fault or
negligence, is obliged to pay for the
damage done. . . ."
"Art. 2180. Civil Code: The obligation
imposed by article 2176 is
demandable not only for one's own
acts or omission, but also for those of
persons for whom one is responsible .
. ."
On this point, the Court of Appeals found and held that
there was negligence.
The trial court gave credence to the testimony of Angel
Novado, a witness of the defendants (now petitioners),
that a member of the "extravaganza troupe" removed
two principal braces located on the front portion of the
stage and used them to hang the screen or "telon", and
that when many people went up the stage the latter
collapsed. This testimony was not believed however by
respondent appellate court, and rightly so. According
to said defendants, those two braces were "mother" or
"principal" braces located semi-diagonally from the
front ends of the stage to the front posts of the ticket
booth located at the rear of the stage and were fastened
with a bamboo twine. That being the case, it becomes
incredible that any person in his right mind would
remove those principal braces and leave the front
portion of the stage practically unsupported. Moreover,
if that did happen, there was indeed negligence as there
was lack of supervision over the use of the stage to
prevent such an occurrence.
At any rate, the guitarist who was pointed to by
Novado as the person who removed the two bamboo
braces denied having done so. The Court of Appeals
said. "Amor by himself alone could not have removed
the two braces which must be about ten meters long
and fastened them on top of the stage for the curtain.
The stage was only five and a half meters wide Surely,
it would be impractical and unwieldy to use a ten meter
bamboo pole, much more two poles, for the stage
curtain."
The appellate court also found that the stage was not
strong enough considering that only P100.00 was
339
appropriate for the construction of two stages and
while the floor of the "zarzuela" stage was of wooden
planks, the posts and braces used were of bamboo
material. We likewise observe that although the stage
was described by the petitioners as being supported by
"24" posts, nevertheless there were only 4 in front, 4 at
the rear, and 5 on each side. Where were the rest?
The Court of Appeals thus concluded:
"The court a quo itself attributed the
collapse of the stage to the great
number of onlookers who mounted
the stage. The municipality and/or its
agents had the necessary means
within its command to prevent such
an occurrence. Having failed to take
the necessary steps to maintain the
safety of the stage for the use of the
participants in the stage presentation
prepared in connection with the
celebration of the town fiesta,
particularly, in preventing
nonparticipants or spectators from
mounting and accumulating on the
stage which was not constructed to
meet the additional weight, the
defendants-appellees were negligent
and are liable for the death of Vicente
Fontanilla." (pp. 30-31, rollo, L-29993)
The findings of the respondent appellate court that the
facts as presented to it establish negligence as a matter
of law and that the Municipality failed to exercise the
due diligence of a good father of the family, will not
disturbed by Us in the absence of a clear showing of an
abuse of discretion or a gross misapprehension of facts.
Liability rests on negligence which is "the want of such
care as a person of ordinary prudence would exercise
under the circumstances of the case."
Thus, private respondents argue that the "Midas
Extravaganza" which was to be performed during the
town fiesta was a "donation" offered by an association
of Malasiqui employees of the Manila Railroad Co. in
Caloocan, and that when the Municipality of Malasiqui
accepted the donation of services and constructed
precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect
that the Municipality through its "Committee on
entertainment and stage" would build or put up a stage
or platform strong enough to sustain the weight or
burden of the performance and take the necessary
measures to insure the personal safety of the
participants. We agree.
Quite relevant to that argument is the American case of
Sanders v. City of Long Beach, 1942, which was an action
against the city for injuries sustained from a fall when
plaintiff was descending the steps of the city
auditorium. The city was conducting a "Know your
City Week" and one of the features was the showing of
a motion picture in the city auditorium to which the
general public was invited and plaintiff Sanders was
one of those who attended. In sustaining the award for
damages in favor of plaintiff, the District Court of
Appeal, Second district, California, held inter alia that
the "Know your City Week" was a "proprietary activity"
and not a "governmental one" of the city, that
defendant owed to plaintiff, an "invitee", the duty of
exercising ordinary care for her safety, and plaintiff was
entitled to assume that she would not be exposed to a
danger (which in this case consisted of lack of sufficient
illumination of the premises) that would come to her
through a violation of defendant's duty.
We can say that the deceased Vicente Fontanilla was
similarly situated as Sanders. The Municipality of
Malasiqui resolved to celebrate the town fiesta in
January of 1959; it created a committee in charge of the
entertainment and stage; an association of Malasiqui
residents responded to the call for the festivities and
volunteered to present a stage show; Vicente Fontanilla
was one of the participants who like Sanders had the
right to expect that he would be exposed to danger on
that occasion.
Lastly, petitioner or appellant Municipality cannot
evade responsibility and/or liability under the claim
that it was Jose Macaraeg who constructed the stage.
The municipality acting through its municipal council
appointed Macaraeg as chairman of the sub-committee
on entertainment and in charge of the construction of
the "zarzuela" stage. Macaraeg acted merely as an agent
of the Municipality. Under the doctrine of respondent
superior mentioned earlier, petitioner is responsible or
liable for the negligence of its agent acting within his
assigned tasks.
". . . when it is sought to render a
municipal corporation liable for the
act of servants or agents, a cardinal
inquiry is, whether they are the
servants or agents of the corporation.
If the corporation appoints or elects
them, can control them in the
discharge of their duties, can
continue or remove them, can hold
them responsible for the manner in
which they discharge their trust, and
if those duties relate to the exercise of
corporate powers, and are for the
peculiar benefit of the corporation in
its local or special interest, they may
justly be regarded as its agents or
servants, and the maxim of
respondent superior applies." . . .
(Dillon on Municipal Corporations,
5th Ed., Vol. IV, p. 2879)
5. The remaining question to be resolved centers on
the liability of the municipal councilors who enacted
the ordinance and created the fiesta committee.
The Court of Appeals held the councilors jointly and
solidarily liable with the municipality for damages
under Article 27 of the Civil Code which provides that
"any person suffering material or moral loss because a
public servant or employee refuses or neglects, without
just cause, to perform his official duty may file an
action for damages and other relief against the latter."
In their Petition for review the municipal councilors
allege that the Court of Appeals erred in ruling that the
holding of a town fiesta is not a governmental function
and that there was negligence on their part for not
maintaining and supervising the safe use of the stage,
in applying Article 27 of the Civil Code against them,
and in not holding Jose Macaraeg liable for the collapse
of the stage and the consequent death of Vicente
Fontanilla.
We agree with petitioners that the Court of Appeals
erred in applying Article 27 of the Civil Code against
them, for this particular article covers a case of non-
feasance or non-performance by a public officer of his
official duty; it does not apply to a case of negligence or
misfeasance in carrying out an official duty.
If We are led to set aside the decision of the Court of
Appeals insofar as these petitioners are concerned, it is
because of plain error committed by respondent court
which however is not invoked in petitioners' brief.
In Miguel v. The Court of Appeals, et al., the Court,
through Justice, now Chief Justice, Fred Ruiz Castro,
held that the Supreme Court is vested with ample
authority to review matters not assigned as errors in an
appeal if it finds that their consideration and resolution
are indispensable or necessary in arriving at a just
decision in a given case, and that this is authorized
under Sec. 7, Rule 51 of the Rules of Court. We believe
that this pronouncement can well be applied in the
instant case.
The Court of Appeals in its decision now under review
held that the celebration of a town fiesta by the
Municipality of Malasiqui was not a governmental
function. We upheld that ruling. The legal consequence
thereof is that the Municipality stands on the same
footing as an ordinary private corporation with the
municipal council acting as its board of directors. It is
an elementary principle that a corporation has a
personality, separate and distinct from its officers,
directors, or persons composing it and the latter are not
as a rule co-responsible in an action for damages for
tort or negligence (culpa aquiliana) committed by the
corporation's employees or agents unless there is a
showing of bad faith or gross or wanton negligence on
their part.
xxx xxx xxx
"The ordinary doctrine is that a
Director, merely by reason of his
340
 office, is not personally liable for the
torts of his corporation; he must be
shown to have personally voted for
or otherwise participated in them." . .
. (Fletcher Cyclopedia Corporations,
Vol. 3A, Chapt. 11, p. 207)
"Officers of a corporation 'are not
held liable for the negligence of the
corporation merely because of their
official relation to it, but because of
some wrongful or negligent act by
such officer amounting to a breach of
duty which resulted in an injury . . .
To make an officer of a corporation
liable for the negligence of the
corporation there must have been
upon his part such a breach of duty
as contributed to, or helped to bring
about, the injury; that is to say, he
must be a participant in the wrongful
act." . . . (pp. 207-208, ibid.)
xxx xxx xxx
"Directors who merely employ one to
give n fireworks exhibition on the
corporate grounds are not personally
liable for the negligent acts of the
exhibitor." (p. 211, ibid.)
On these principles We absolve the municipal
councilors from any liability for the death of Vicente
Fontanilla. The records do not show that said
petitioners directly participated in the defective
construction of the "zarzuela" stage or that they
personally permitted spectators to go up the platform.
xxx xxx xxx
PREMISES CONSIDERED, We AFFIRM in toto the
decision of the Court of Appeals insofar as the
Municipality of Malasiqui is concerned (L-30183), and
We absolve the municipal councilors from liability and
SET ASIDE the judgment against them (L-29993).
Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez, and
Guerrero, JJ., concur.
JIMENEZ vs. CITY OF MANILA, ET AL.
G.R. No. 71049, 29 May 1987, 150 SCRA 510
PARAS, J p:
This is a petition for review on certiorari of : (1) the
decision of the Intermediate Appellate Court in AC-
G.R. No. 013887-CV Bernardino Jimenez v. Asiatic
Integrated Corporation and City of Manila, reversing
341
the decision of the Court of First Instance of Manila,
Branch XXII in Civil Case No. 96390 between the same
parties, but only insofar as holding Asiatic Integrated
Corporation solely liable for damages and attorney's
fees instead of making the City of Manila jointly and
solidarily liable with it as prayed for by the petitioner
and (2) the resolution of the same Appellate Court
denying his Partial Motion for Reconsideration (Rollo,
p. 2).
xxx xxx xxx
The findings of respondent Appellate Court are as
follows:
The evidence of the plaintiff
(petitioner herein) shows that in the
morning of August 15, 1974 he,
together with his neighbors, went to
Sta. Ana public market to buy
"bagoong" at the time when the
public market was flooded with ankle
deep rainwater. After purchasing the
"bagoong" he turned around to return
home but he stepped on an
uncovered opening which could not
be seen because of the dirty
rainwater, causing a dirty and rusty
four inch nail, stuck inside the
uncovered opening, to pierce the left
leg of plaintiff-petitioner penetrating
to a depth of about one and a half
inches. After administering first aid
treatment at a nearby drugstore, his
companions helped him hobble
home. He felt ill and developed fever
and he had to be carried to Dr.
Juanita Mascardo. Despite the
medicine administered to him by the
latter, his left leg swelled with great
pain. He was then rushed to the
Veterans Memorial Hospital where
he had to be confined for twenty (20)
days due to high fever and severe
pain.
Upon his discharge from the hospital,
he had to walk around with crutches
for fifteen (15) days. His injury
prevented him from attending to the
school buses he is operating. As a
result, he had to engage the services
of one Bienvenido Valdez to
supervise his business for an
aggregate compensation of nine
hundred pesos (P900.00). (Decision,
AC-G.R. CV No. 01387, Rollo, pp. 13-
20).
Petitioner sued for damages the City
of Manila and the Asiatic Integrated
Corporation under whose
 administration the Sta. Ana Public
Market had been placed by virtue of
a Management and Operating
Contract (Rollo, p. 47).
The lower court decided in favor of respondents, the
dispositive portion of the decision reading:
xxx xxx xxx
As above stated, on appeal, the Intermediate Appellate
Court held the Asiatic Integrated Corporation liable for
damages but absolved respondent City of Manila.
Hence this petition.
The lone assignment of error raised in this petition is on
whether or not the Intermediate Appellate Court erred
in not ruling that respondent City of Manila should be
jointly and severally liable with Asiatic Integrated
Corporation for the injuries petitioner suffered.
xxx xxx xxx
The petition is impressed with merit.
As correctly found by the Intermediate Appellate
Court, there is no doubt that the plaintiff suffered
injuries when he fell into a drainage opening without
any cover in the Sta. Ana Public Market. Defendants do
not deny that plaintiff was in fact injured although the
Asiatic Integrated Corporation tries to minimize the
extent of the injuries, claiming that it was only a small
puncture and that as a war veteran, plaintiff's
hospitalization at the War Veteran's Hospital was free.
(Decision, AC-G.R. CV No. 01387, Rollo, p. 6).
Respondent City of Manila maintains that it cannot be
held liable for the injuries sustained by the petitioner
because under the Management and Operating
Contract, Asiatic Integrated Corporation assumed all
responsibility for damages which may be suffered by
third persons for any cause attributable to it.
It has also been argued that the City of Manila cannot
be held liable under Article 1, Section 4 of Republic Act
No. 409 as amended (Revised Charter of Manila) which
provides:
"The City shall not be liable or held
for damages or injuries to persons or
property arising from the failure of
the Mayor, the Municipal Board, or
any other City Officer, to enforce the
provisions of this chapter, or any
other law or ordinance, or from
negligence of said Mayor, Municipal
Board, or any other officers while
enforcing or attempting to enforce
said provisions."
This issue has been laid to rest in the case of City of
Manila v. Teotico (22 SCRA 269-272 [1968]) where the
Supreme Court squarely ruled that Republic Act No.
409 establishes a general rule regulating the liability of
the City of Manila for "damages or injury to persons or
property arising from the failure of city officers" to
enforce the provisions of said Act, "or any other law or
ordinance or from negligence" of the City "Mayor,
Municipal Board, or other officers while enforcing or
attempting to enforce said provisions."
Upon the other hand, Article 2189 of the Civil Code of
the Philippines which provides that:
"Provinces, cities and municipalities
shall be liable for damages for the
death of, or injuries suffered by any
person by reason of defective
conditions of roads, streets, bridges,
public buildings and other public
works under their control or
supervision."
constitutes a particular prescription making "provinces,
cities and municipalities . . . liable for damages for the
death of, or injury suffered by any person by reason" —
specifically — "of the defective condition of roads,
streets, bridges, public buildings, and other public
works under their control or supervision." In other
words, Art. 1, sec. 4, R.A. No. 409 refers to liability
arising from negligence, in general, regardless of the
object, thereof, while Article 2189 of the Civil Code
governs liability due to "defective streets, public
buildings and other public works" in particular and is
therefore decisive on this specific case.
In the same suit, the Supreme Court clarified further
that under Article 2189 of the Civil Code, it is not
necessary for the liability therein established to attach,
that the defective public works belong to the province,
city or municipality from which responsibility is
exacted. What said article requires is that the province,
city or municipality has either "control or supervision"
over the public building in question.
In the case at bar, there is no question that the Sta. Ana
Public Market, despite the Management and Operating
Contract between respondent City and Asiatic
Integrated Corporation remained under the control of
the former.
For one thing, said contract is explicit in this regard,
when it provides:
"II
That immediately after the execution
of this contract, the SECOND PARTY
shall start the painting, cleaning,
sanitizing and repair of the public
markets and talipapas and within
ninety (90) days thereof, the
SECOND PARTY shall submit a
program of improvement,
342
 development, rehabilitation and
reconstruction of the city public
markets and talipapas subject to prior
approval of the FIRST PARTY. (Rollo,
p. 44)
xxx xxx xxx
"VI
That all present personnel of the City
public markets and talipapas shall be
retained by the SECOND PARTY as
long as their services remain
satisfactory and they shall be
extended the same rights and
privileges as heretofore enjoyed by
them. Provided, however, that the
SECOND PARTY shall have the
right, subject to prior approval of the
FIRST PARTY to discharge any of the
present employees for cause. (Rollo,
p. 45).
"VII
That the SECOND PARTY may from
time to time be required by the FIRST
PARTY, or his duly authorized
representative or representatives, to
report on the activities and operation
of the City public markets and
talipapas and the facilities and
conveniences installed therein,
particularly as to their cost of
construction, operation and
maintenance in connection with the
stipulations contained in this
Contract." (Ibid.)
The fact of supervision and control of the City over
subject public market was admitted by Mayor Ramon
Bagatsing in his letter to Secretary of Finance Cesar
Virata which reads:
"These cases arose from the
controversy over the Management
and Operating Contract entered into
on December 28, 1972 by and
between the City of Manila and the
Asiatic Integrated Corporation,
whereby in consideration of a fixed
service fee, the City hired the services
of the said corporation to undertake
the physical management,
maintenance, rehabilitation and
development of the City's public
markets and 'Talipapas' subject to the
control and supervision of the City.
xxx xxx xxx
343
"It is believed that there is
nothing incongruous in the exercise
of these powers vis-a-vis the
existence of the contract, inasmuch as
the City retains the power of
supervision and control over its
public markets and talipapas under
the terms of the contract." (Exhibit 7-
A.) (Emphasis supplied.) (Rollo, p.
75).
In fact, the City of Manila employed a market master
for the Sta. Ana Public Market whose primary duty is to
take direct supervision and control of that particular
market, more specifically, to check the safety of the
place for the public.
Thus the Asst. Chief of the Market Division and Deputy
Market Administrator of the City of Manila testified as
follows:
"Court This market master is an
employee of the City of
Manila?
Mr.Ymson Yes, Your Honor.
Q What are his functions?
A Direct supervision and control
over the market area assigned to
him." (T.s.n., pp. 41-42, Hearing
of May 20, 1977.)
xxx xxx xxx
"Court As far as you know there is
or is there any specific
employee assigned with the
task of seeing to it that the
Sta. Ana Market is safe for
the public?
"Mr. Ymson Actually, as I
stated, Your Honor, that the
Sta. Ana has its own market
master. The primary duty of
that market master is to
make the direct supervision
and control of that particular
market, the check or
verifying whether the place
is safe for public safety is
vested in the market
master." (T.s.n., pp. 24-25,
Hearing of July 27, 1977.)
(Emphasis supplied.) (Rollo,
p. 76).
Finally, Section 30 (g) of the Local Tax Code as
amended, provides:
"The treasurer shall exercise direct
and immediate supervision,
 administration and control over
public markets and the personnel
thereof, including those whose duties
concern the maintenance and upkeep
of the market and ordinances and
other pertinent rules and
regulations." (Emphasis supplied.)
(Rollo, p. 76)
The contention of respondent City of Manila that
petitioner should not have ventured to go to Sta. Ana
Public Market during a stormy weather is indeed
untenable. As observed by respondent Court of
Appeals, it is an error for the trial court to attribute the
negligence to herein petitioner. More specifically stated,
the findings of appellate court are as follows:
". . . The trial court even chastised the
plaintiff for going to market on a
rainy day just to buy bagoong. A
customer in a store has the right to
assume that the owner will comply
with his duty to keep the premises
safe for customers. If he ventures to
the store on the basis of such
assumption and is injured because
the owner did not comply with his
duty, no negligence can be imputed
to the customer." (Decision, AC-G.R.
CV No. 01387, Rollo, p. 19).
As a defense against liability on the basis of a quasi-
delict, one must have exercised the diligence of a good
father of a family. (Art. 1173 of the Civil Code).
There is no argument that it is the duty of the City of
Manila to exercise reasonable care to keep the public
market reasonably safe for people frequenting the place
for their marketing needs.
While it may be conceded that the fulfillment of such
duties is extremely difficult during storms and floods, it
must however, be admitted that ordinary precautions
could have been taken during good weather to
minimize the dangers to life and limb under those
difficult circumstances.
For instance, the drainage hole could have been placed
under the stalls instead of on the passage ways. Even
more important is the fact, that the City should have
seen to it that the openings were covered. Sadly, the
evidence indicates that long before petitioner fell into
the opening, it was already uncovered, and five (5)
months after the incident happened, the opening was
still uncovered. (Rollo, pp. 57; 59). Moreover, while
there are findings that during floods the vendors
remove the iron grills to hasten the flow of water
(Decision, AC-G.R. CV No. 01387; Rollo, p. 17), there is
no showing that such practice has ever been prohibited,
much less penalized by the City of Manila. Neither was
it shown that any sign had been placed thereabouts to
warn passers-by of the impending danger.
To recapitulate, it appears evident that the City of
Manila is likewise liable for damages under Article 2189
of the Civil Code, respondent City having retained
control and supervision over the Sta. Ana Public
Market and as tort-feasor under Article 2176 of the Civil
Code on quasi-delicts.
Petitioner had the right to assume that there were no
openings in the middle of the passageways and if any,
that they were adequately covered. Had the opening
been covered, petitioner could not have fallen into it.
Thus the negligence of the City of Manila is the
proximate cause of the injury suffered, the City is
therefore liable for the injury suffered by the petitioner.
Respondent City of Manila and Asiatic Integrated
Corporation being joint tort-feasors, are solidarily liable
under Article 2194 of the Civil Code.
PREMISES CONSIDERED, the decision of the Court of
Appeals is hereby MODIFIED, making the City of
Manila and the Asiatic Integrated Corporation
solidarily liable to pay the plaintiff P221.90 actual
medical expenses, P900.00 for the amount paid for the
operation and management of the school bus,
P20,000.00 as moral damages due to pain, sufferings
and sleepless nights and P10,000.00 as attorney's fees.
SO ORDERED.
Fernan, Gutierrez, Jr., Padilla, Bidin and Cortes, JJ .,
concur.
THE MUNICIPALITY OF SAN JUAN vs.
COURT OF APPEALS, ET AL.
G.R. No. 121920, 9 August 2005.
GARCIA, J p:
In this appeal by way of a petition for review on
certiorari under Rule 45 of the Rules of Court, petitioner
Municipality of San Juan urges us to annul and set
aside the decision dated 08 September 1995 of the Court
of Appeals in CA-G.R. CV No. 38906, affirming with
modification an earlier decision of the Regional Trial
Court at Pasig City in an action for damages thereat
commenced by private respondent Laura Biglang-awa
against, among others, the herein petitioner.
The material facts are not at all disputed:
Under a "Contract For Water Service Connections"
entered into by and between the Metropolitan
Waterworks and Sewerage System (MWSS) and Kwok
Cheung as sole proprietor of K.C. Waterworks System
Construction (KC, for short), the former engaged the
services of the latter to install water service connections.
Article 11 (Scope of Work), paragraph 2.01 of the
agreement provides:
344
 2.01 The CONTRACTOR agrees to
install water service connections,
transfer location of tapping to
the nearest main, undertake
separation of service connection,
change rusted connections,
within the service area of the
MWSS specified in each job
order covered by this Contract,
from the water main up to the
installation of the verticals.
Tapping of the service pipe
connection and mounting of
water meter shall be undertaken
exclusively or solely by the
MWSS;
On 20 May 1988, KC was given a Job Order by the
South Sector Office of MWSS to conduct and effect
excavations at the corner of M. Paterno and Santolan
Road, San Juan, Metro Manila, a national road, for the
laying of water pipes and tapping of water to the
respective houses of water concessionaires.
That same day, KC dispatched five (5) of its workers
under Project Engineer Ernesto Battad, Jr. to conduct
the digging operations in the specified place. The
workers installed four (4) barricades made up of two-
inch thick GI pipes welded together, 1.3 meters wide
and 1.2 meters high, at the area where the digging is to
take place. The digging operations started at 9 o'clock in
the morning and ended at about 3 o'clock in the
afternoon. The workers dug a hole one (1) meter wide
and 1.5 meters deep, after which they refilled the
excavated portion of the road with the same gravel and
stone excavated from the area. At that time, only 3/4 of
the job was finished in view of the fact that the workers
were still required to re-excavate that particular portion
for the tapping of pipes for the water connections to the
concessionaires.
Meanwhile, between 10 o'clock and 11 o'clock in the
evening of 31 May 1988, Priscilla Chan was driving her
Toyota Crown car with Plate No. PDK 991 at a speed of
thirty (30) kilometers per hour on the right side of
Santolan Road towards the direction of Pinaglabanan,
San Juan, Metro Manila. With her on board the car and
seated on the right front seat was Assistant City
Prosecutor Laura Biglang-awa. The road was flooded as
it was then raining hard. Suddenly, the left front wheel
of the car fell on a manhole where the workers of KC
had earlier made excavations. As a result, the humerus
on the right arm of Prosecutor Biglang-awa was
fractured. Thereupon, Priscilla Chan contacted Biglang-
awa's husband who immediately arrived at the scene
and brought his wife to the Cardinal Santos Hospital.
Dispatched to the scene of the accident to conduct an
investigation thereof, Pfc. Felix Ramos of the Traffic
Division of the San Juan Police Station, upon arriving
thereat, saw Priscilla Chan's car already extracted from
the manhole and placed beside the excavated portion of
345
the road. According to this police officer, he did not see
any barricades at the scene when he arrived less than
an hour later. A Traffic Accident Investigation Report
was thereafter prepared and signed by Pfc. Ramos.
At the hospital, the attending physician, after having
performed a close reduction and application of
abduction splint on Biglang-awa, placed a plastic cast
on her right arm. Barring complications, the injury she
suffered was expected to heal in four (4) to six (6)
weeks, although she must revisit her doctor from time
to time for check-up and rehabilitation. After some
time, the plastic cast was removed. Biglang-awa
sustained no deformity and no tenderness of the area of
the injury but she could not sleep on her right side
because she still felt pain in that portion of her body. A
Medical Certificate on her injuries was issued by Dr.
Antonio Rivera.
Consequent to the foregoing incident, Biglang-awa filed
before the Regional Trial Court at Pasig, Metro Manila a
complaint for damages against MWSS, the Municipality
of San Juan and a number of San Juan municipal
officials.
Later, Biglang-awa amended her complaint twice. In
her second amended complaint, she included KC as one
of the defendants.
After due proceedings, the trial court rendered
judgment in favor of Biglang-awa adjudging MWSS
and the Municipality of San Juan jointly and severally
liable to her. Dated 29 February 1992, the decision
dispositively reads in full, thus:
xxx xxx xxx
Unable to accept the judgment, both Biglang-awa and
the Municipality of San Juan went to the Court of
Appeals via ordinary appeal under Rule 41 of the Rules
of Court, which appeal was thereat docketed as CA-
G.R. CV No. 38906.
xxx xxx xxx
With no similar recourse having been taken by the
other parties, the Court shall limit itself to the liability
or non-liability of petitioner municipality for the injury
sustained by Biglang-awa.
In denying liability for the subject accident, petitioner
essentially anchored its defense on two provisions of
laws, namely: (1) Section 149, [1][z] of Batas Pambansa
Blg. 337, otherwise known as the Local Government
Code of 1983; and (2) Section 8, Ordinance 82-01, of the
Metropolitan Manila Commission.
Petitioner maintains that under Section 149, [1][z] of the
Local Government Code, it is obliged to provide for the
construction, improvement, repair and maintenance of
only municipal streets, avenues, alleys, sidewalks,
bridges, parks and other public places. Ergo, since
Santolan Road is concededly a national and not a
municipal road, it cannot be held liable for the injuries
suffered by Biglang-awa on account of the accident that
occurred on said road.
Additionally, petitioner contends that under Section 8,
Ordinance No. 82-01, of the Metropolitan Manila
Commission, which reads:
In the event of death, injury and/or
damages caused by the non-
completion of such works and/or
failure of one undertaking the work
to adopt the required precautionary
measures for the protection of the
general public or violation of any of
the terms or conditions of the permit,
the permittee/excavator shall assume
fully all liabilities for such death,
injury or damage arising therefrom.
For this purpose, the
excavator/permittee shall purchase
insurance coverage to answer for
third party liability, only the Project
Engineer of KC and MWSS can be
held liable for the same accident.
The petition must have to be denied.
Jurisprudence teaches that for liability to arise under
Article 2189 of the Civil Code, ownership of the roads,
streets, bridges, public buildings and other public
works, is not a controlling factor, it being sufficient that
a province, city or municipality has control or
supervision thereof. This, we made clear in City of
Manila vs. Teotico, et al. :
At any rate, under Article 2189 of the
Civil Code, it is not necessary for the
liability therein established to attach
that the defective roads or streets
belong to the province, city or
municipality from which
responsibility is exacted. What said
article requires is that the province,
city or municipality have either
"control or supervision" over said
street or road. . . .
It is argued, however, that under Section 149, [1][z] of
the Local Government Code, petitioner has control or
supervision only over municipal and not national
roads, like Santolan Road.
Sadly, petitioner failed to take note of the other
provisions of Section 149 of the same Code, more
particularly the following:
Section 149. Powers and Duties. — (1)
The sangguniang bayan shall:
(bb) Regulate the drilling and
excavation of the ground for the laying of
gas, water, sewer, and other pipes; the
building and repair of tunnels,
sewers, drains and other similar
structures; erecting of poles and the
use of crosswalks, curbs and gutters
therein, and adopt measures to ensure
public safety against open canals,
manholes, live wires and other similar
hazards to life and property, and provide
just compensation or relief for persons
suffering from them; (Underscoring
supplied)
Clear it is from the above that the Municipality of San
Juan can "regulate" the drilling and excavation of the
ground for the laying of gas, water, sewer, and other
pipes within its territorial jurisdiction.
Doubtless, the term "regulate" found in the aforequoted
provision of Section 149 can only mean that petitioner
municipality exercises the power of control, or, at the
very least, supervision over all excavations for the
laying of gas, water, sewer and other pipes within its
territory.
We must emphasize that under paragraph [1][bb] of
Section 149, supra, of the Local Government Code, the
phrases "regulate the drilling and excavation of the
ground for the laying of gas, water, sewer, and other
pipes", and "adopt measures to ensure public safety
against open canals, manholes, live wires and other
similar hazards to life and property", are not modified
by the term "municipal road". And neither can it be
fairly inferred from the same provision of Section 149
that petitioner's power of regulation vis-à-vis the
activities therein mentioned applies only in cases where
such activities are to be performed in municipal roads.
To our mind, the municipality's liability for injuries
caused by its failure to regulate the drilling and
excavation of the ground for the laying of gas, water,
sewer, and other pipes, attaches regardless of whether
the drilling or excavation is made on a national or
municipal road, for as long as the same is within its
territorial jurisdiction.
We are thus in full accord with the following
pronouncements of the appellate court in the decision
under review:
While it may be true that the
Department of Public Works and
Highways may have issued the
requisite permit to the Appellee KC
and/or concessionaires for the
excavation on said road, the
Appellant San Juan is not thereby
relieved of its liability to [Biglang-
awa] for its own gross negligence.
Indeed, Evangeline Alfonso, the
witness for the Appellant San Juan
346
 unabashedly [sic] admitted, when she
testified in the Court a quo, that even
if the Department of Public Works
and Highways failed to effect the
requisite refilling, the Appellant San
Juan was mandated to undertake the
necessary precautionary measures to
avert accidents and insure the safety
of pedestrians and commuters:
xxx xxx xxx
The [petitioner] cannot validly shirk
from its obligation to maintain and
insure the safe condition of the road
merely because the permit for the
excavation may have been issued by
a government entity or unit other
than the Appellant San Juan or that
the excavation may have been done
by a contractor under contract with a
public entity like the Appellee
MWSS.
Neither is the [petitioner] relieved of
liability based on its purported lack
of knowledge of the excavation and
the condition of the road during the
period from May 20, 1988 up to May
30, 1988 when the accident occurred.
It must be borne in mind that the
obligation of the [petitioner] to
maintain the safe condition of the
road within its territory is a
continuing one which is not
suspended while a street is being
repaired (Corpus Juris Secundum,
Municipal Corporations, page 120).
Knowledge of the condition of the
road and the defects and/or
obstructions on the road may be
actual or constructive. It is enough
that the authorities should have
known of the aforesaid circumstances
in the exercise of ordinary care (City
of Louiseville versus Harris, 180
Southwestern Reporter. page 65). In
the present recourse, Santolan Road
and the Greenhills area coming from
Ortigas Avenue going to
Pinaglabanan, San Juan, Metro
Manila is a busy thoroughfare. The
gaping hole in the middle of the road
of Santolan Road could not have been
missed by the authorities concerned.
After all, the [petitioner] San Juan is
mandated to effect a constant and
unabated monitoring of the
conditions of the roads to insure the
safety of motorists. Persuasive
authority has it that:
347
It is the duty of the municipal
authorities to exercise an active
vigilance over the streets; to see that
they are kept in a reasonably safe
condition for public travel. They
cannot fold their arms and shut their
eyes and say they have no notice.
(Todd versus City of Troy, 61 New
York 506). (Words in bracket
supplied).
Nor can petitioner seek shelter on Section 8 of
Ordinance 82-01 of the Metropolitan Manila
Commission.
Concededly, Section 8 of the Ordinance makes the
permittee/excavator liable for death, injury and/or
damages caused by the non-completion of works
and/or failure of the one undertaking the works to
adopt the required precautionary measures for the
protection of the general public. Significantly, however,
nowhere can it be found in said Ordinance any
provision exempting municipalities in Metro Manila
from liabilities caused by their own negligent acts.
Afortiori, nothing prevents this Court from applying
other relevant laws concerning petitioner's liability for
the injuries sustained by Biglang-awa on that fateful
rainy evening of 31 May 1988.
WHEREFORE, the instant petition is DENIED and the
assailed decision of the appellate court AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, Sandoval-Gutierrez and Carpio-Morales,
JJ., concur.
Corona, J., is on official leave.
e. Building proprietors
ARTICLE 2190. The proprietor of a building or
structure is responsible for the damages resulting
from its total or partial collapse, if it should be due to
the lack of necessary repairs. (1907)
ARTICLE 2191. Proprietors shall also be responsible
for damages caused:
(1) By the explosion of machinery which has not
been taken care of with due diligence, and the
inflammation of explosive substances which have
not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to
persons or property;
(3) By the falling of trees situated at or near
highways or lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed without
precautions suitable to the place. (1908)

ARTICLE 2192. If damage referred to in the two
preceding articles should be the result of any defect in
the construction mentioned in article 1723, the third
person suffering damages may proceed only against
the engineer or architect or contractor in accordance
with said article, within the period therein fixed.
(1909a)
ARTICLE 2193. The head of a family that lives in a
building or a part thereof, is responsible for damages
caused by things thrown or falling from the same.
(1910)
f. Engineers/architects/contractors
ARTICLE 2192. If damage referred to in the two
preceding articles should be the result of any defect in
the construction mentioned in article 1723, the third
person suffering damages may proceed only against
the engineer or architect or contractor in accordance
with said article, within the period therein fixed.
(1909a)
ARTICLE 1723. The engineer or architect who drew
up the plans and specifications for a building is liable
for damages if within fifteen years from the
completion of the structure, the same should collapse
by reason of a defect in those plans and specifications,
or due to the defects in the ground. The contractor is
likewise responsible for the damages if the edifice
falls, within the same period, on account of defects in
the construction or the use of materials of inferior
quality furnished by him, or due to any violation of
the terms of the contract. If the engineer or architect
supervises the construction, he shall be solidarily
liable with the contractor.
Acceptance of the building, after completion, does not
imply waiver of any of the causes of action by reason
of any defect mentioned in the preceding paragraph.
The action must be brought within ten years
following the collapse of the building. (n)
JUAN F. NAKPIL & SONS and JUAN F. NAKPIL vs.
THE COURT OF APPEALS, ET AL.
G.R. Nos. L-47851, L-47863 and L-47896,
3 October 1986, 144 SCRA 596
PARAS, J p:
These are petitions for review on certiorari of the
November 28, 1977 decision of the Court of Appeals in
CA G.R. No. 51771-R modifying the decision of the
Court of First Instance of Manila, Branch V, in Civil
Case No. 74958 dated September 21, 1971 as modified
by the Order of the lower court dated December 8,
1971. The Court of Appeals in modifying the decision of
the lower court included an award of an additional
amount of P200,000.00 to the Philippine Bar Association
to be paid jointly and severally by the defendant United
Construction Co. and by the third-party defendants
Juan F. Nakpil and Sons and Juan F. Nakpil.
xxx xxx xxx
These petitions arising from the same case filed in the
Court of First Instance of Manila were consolidated by
this Court in the resolution of May 10, 1978 requiring
the respective respondents to comment. (Rollo, L-47851,
p. 172).
The facts as found by the lower court (Decision, C.C.
No. 74958; Record on Appeal, pp. 269-348; pp. 520-521;
Rollo, L-47851, p. 169) and affirmed by the Court of
Appeals are as follows:
The plaintiff, Philippine Bar Association, a civic-non-
profit association, incorporated under the Corporation
Law, decided to construct an office building on its 840
square meters lot located at the corner of Aduana and
Arzobispo Streets, Intramuros, Manila. The
construction was undertaken by the United
Construction, Inc. on an "administration" basis, on the
suggestion of Juan J. Carlos, the president and general
manager of said corporation. The proposal was
approved by plaintiff's board of directors and signed by
its president Roman Ozaeta, a third-party defendant in
this case. The plans and specifications for the building
were prepared by the other third-party defendants Juan
F. Nakpil & Sons. The building was completed in June,
1966.
In the early morning of August 2, 1968 an unusually
strong earthquake hit Manila and its environs and the
building in question sustained major damage. The front
columns of the building buckled, causing the building
to tilt forward dangerously. The tenants vacated the
building in view of its precarious condition. As a
temporary remedial measure, the building was shored
up by United Construction, Inc. at the cost of
P13,661.28.
On November 29, 1968, the plaintiff commenced this
action for the recovery of damages arising from the
partial collapse of the building against United
Construction, Inc. and its President and General
Manager Juan J. Carlos as defendants. Plaintiff alleges
that the collapse of the building was accused by defects
in the construction, the failure of the contractors to
follow plans and specifications and violations by the
defendants of the terms of the contract.
Defendants in turn filed a third-party complaint against
the architects who prepared the plans and
specifications, alleging in essence that the collapse of
the building was due to the defects in the said plans
and specifications. Roman Ozaeta, the then president of
the plaintiff Bar Association was included as a third-
party defendant for damages for having included Juan
J. Carlos, President of the United Construction Co., Inc.
as party defendant.
348
 xxx xxx xxx
Upon the issues being joined, a pre-trial was conducted
on March 7, 1969, during which among others, the
parties agreed to refer the technical issues involved in
the case to a Commissioner. Mr. Andres O. Hizon, who
was ultimately appointed by the trial court, assumed
his office as Commissioner, charged with the duty to
try the following issues:
xxx xxx xxx
Thus, the issues of this case were divided into technical
issues and non-technical issues. As aforestated the
technical issues were referred to the Commissioner. The
non-technical issues were tried by the Court.
Meanwhile, plaintiff moved twice for the demolition of
the building on the ground that it may topple down in
case of a strong earthquake. The motions were opposed
by the defendants and the matter was referred to the
Commissioner. Finally, on April 30, 1979 the building
was authorized to be demolished at the expense of the
plaintiff, but not another earthquake of high intensity
on April 7, 1970 followed by other strong earthquakes
on April 9, and 12, 1970, caused further damage to the
property. The actual demolition was undertaken by the
buyer of the damaged building. (Record on Appeal, pp.
278-280; Ibid.).
After the protracted hearings, the Commissioner
eventually submitted his report on September 25, 1970
with the findings that while the damage sustained by
the PBA building was caused directly by the August 2,
1968 earthquake whose magnitude was estimated at 7.3
they were also caused by the defects in the plans and
specifications prepared by the third-party defendants'
architects, deviations from said plans and specifications
by the defendant contractors and failure of the latter to
observe the requisite workmanship in the construction
of the building and of the contractors, architects and
even the owners to exercise the requisite degree of
supervision in the construction of subject building.
All the parties registered their objections to aforesaid
findings which in turn were answered by the
Commissioner.
The trial court agreed with the findings of the
Commissioner except as to the holding that the owner
is charged with full time supervision of the
construction. The Court sees no legal or contractual
basis for such conclusion. (Record on Appeal, pp. 309-
328; Ibid.).
Thus, on September 21, 1971, the lower court rendered
the assailed decision which was modified by the
Intermediate Appellate Court on November 28, 1977.
All the parties herein appealed from the decision of the
Intermediate Appellate Court. Hence, these petitions.
349
On May 11, 1978, the United Architects of the
Philippines, the Association of Civil Engineers, and the
Philippine Institute of Architects filed with the Court a
motion to intervene as amicus curiae. They proposed to
present a position paper on the liability of architects
when a building collapses and to submit likewise a
critical analysis with computations on the divergent
views on the design and plans as submitted by the
experts procured by the parties. The motion having
been granted, the amicus curiae were granted a period
of 60 days within which to submit their position.
After the parties had all filed their comments, We gave
due course to the petitions in Our Resolution of July 21,
1978.
The position papers of the amicus curiae (submitted on
November 24, 1978) were duly noted.
The amicus curiae gave the opinion that the plans and
specifications of the Nakpils were not defective. But the
Commissioner, when asked by Us to comment,
reiterated his conclusion that the defects in the plans
and specifications indeed existed.
Using the same authorities availed of by the amicus
curiae such as the Manila Code (Ord. No. 4131) and the
1966 Asep Code, the Commissioner added that even if
it can be proved that the defects in the construction
alone (and not in the plans and design) caused the
damage to the building, still the deficiency in the
original design and lack of specific provisions against
torsion in the original plans and the overload on the
ground floor columns (found by all the experts
including the original designer) certainly contributed to
the damage which occurred. (Ibid, p. 174).
In their respective briefs petitioners, among others,
raised the following assignments of errors: Philippine
Bar Association claimed that the measure of damages
should not be limited to P1,100,000.00 as estimated cost
of repairs or to the period of six (6) months for loss of
rentals while United Construction Co., Inc. and the
Nakpils claimed that it was an act of God that caused
the failure of the building which should exempt them
from responsibility and not the defective construction,
poor workmanship, deviations from plans and
specifications and other imperfections in the case of
United Construction Co., Inc. or the deficiencies in the
design, plans and specifications prepared by petitioners
in the case of the Nakpils. Both UCCI and the Nakpils
object to the payment of the additional amount of
P200,000.00 imposed by the Court of Appeals. UCCI
also claimed that it should be reimbursed the expenses
of shoring the building in the amount of P13,661.28
while the Nakpils opposed the payment of damages
jointly and solidarily with UCCI.
The pivotal issue in this case is whether or not an act of
God, — an unusually strong earthquake — which
caused the failure of the building, exempts from
liability, parties who are otherwise liable because of
their negligence.
The applicable law governing the rights and liabilities
of the parties herein is Article 1723 of the New Civil
Code, which provides:
"Art. 1723. The engineer or
architect who drew up the plans and
specifications for a building is liable
for damages if within fifteen years
from the completion of the structure
the same should collapse by reason of
a defect in those plans and
specifications, or due to the defects in
the ground. The contractor is likewise
responsible for the damage if the
edifice falls within the same period
on account of defects in the
construction or the use of materials of
inferior quality furnished by him, or
due to any violation of the terms of
the contract. If the engineer or
architect supervises the construction,
he shall be solidarily liable with the
contractor.
Acceptance of the building, after
completion, does not imply waiver of
any of the causes of action by reason
of any defect mentioned in the
preceding paragraph.
The action must be brought within
ten years following the collapse of the
building."
On the other hand, the general rule is that no person
shall be responsible for events which could not be
foreseen or which, though foreseen, were inevitable
(Article 1174, New Civil Code).
An act of God has been defined as an accident, due
directly and exclusively to natural causes without
human intervention, which by no amount of foresight,
pains or care, reasonably to have been expected, could
have been prevented. (1 Corpus Juris 1174).
There is no dispute that the earthquake of August 2,
1968 is a fortuitous event or an act of God.
To exempt the obligor from liability under Article 1174
of the Civil Code, for a breach of an obligation due to
an "act of God, " the following must concur: (a) the
cause of the breach of the obligation must be
independent of the will of the debtor; (b) the event must
be either unforseeable or unavoidable; (c) the event
must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and (d) the
debtor must be free from any participation in, or
aggravation of the injury to the creditor. (Vasquez v.
Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71
SCRA 423; Austria v. Court of Appeals, 39 SCRA 527;
Republic of the Phil. v. Luzon Stevedoring Corp., 21 SCRA
279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an
act of God, there concurs a corresponding fraud,
negligence, delay or violation or contravention in any
manner of the tenor of the obligation as provided for in
Article 1170 of the Civil Code, which results in loss or
damage, the obligor cannot escape liability.
The principle embodied in the act of God doctrine
strictly requires that the act must be one occasioned
exclusively by the violence of nature and all human
agencies are to be excluded from creating or entering
into the cause of the mischief. When the effect, the
cause of which is to be considered, is found to be in part
the result of the participation of man, whether it be
from active intervention or neglect, or failure to act, the
whole occurrence is thereby humanized, as it were, and
removed from the rules applicable to the acts of God. (1
Corpus Juris, pp. 1174-1175).
Thus it has been held that when the negligence of a
person concurs with an act of God in producing a loss,
such person is not exempt from liability by showing
that the immediate cause of the damage was the act of
God. To be exempt from liability for loss because of an
act of God, he must be free from any previous
negligence or misconduct by which that loss or damage
may have been occasioned. (Fish & Elective Co. v. Phil.
Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379;
Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594,
604; Lasam v. Smith, 45 Phil. 657).
The negligence of the defendant and the third-party
defendants petitioners was established beyond dispute
both in the lower court and in the Intermediate
Appellate Court. Defendant United Construction Co.,
Inc. was found to have made substantial deviations
from the plans and specifications, and to have failed to
observe the requisite workmanship in the construction
as well as to exercise the requisite degree of
supervision; while the third-party defendants were
found to have inadequacies or defects in the plans and
specifications prepared by them. As correctly assessed
by both courts, the defects in the construction and in
the plans and specifications were the proximate causes
that rendered the PBA building unable to withstand the
earthquake of August 2, 1968. For this reason the
defendant and third-party defendants cannot claim
exemption from liability. (Decision, Court of Appeals,
pp. 30-31).
xxx xxx xxx
As already discussed, the destruction was not purely an
act of God. Truth to tell hundreds of ancient buildings
in the vicinity were hardly affected by the earthquake.
Only one thing spells out the fatal difference; gross
negligence and evident bad faith, without which the
damage would not have occurred.
350

WHEREFORE, the decision appealed from is hereby
MODIFIED and considering the special and
environmental circumstances of this case, We deem it
reasonable to render a decision imposing, as We do
hereby impose, upon the defendant and the third-party
defendants (with the exception of Roman Ozaeta) a
solidary (Art. 1723, Civil Code, Supra, p. 10) indemnity
in favor of the Philippine Bar Association of FIVE
MILLION (P5,000,000.00) Pesos to cover all damages
(with the exception of attorney's fees) occasioned by the
loss of the building (including interest charges and lost
rentals) and an additional ONE HUNDRED
THOUSAND (P100,000.00) Pesos as and for attorney's
fees, the total sum being payable upon the finality of
this decision. Upon failure to pay on such finality,
twelve (12%) per cent interest per annum shall be
imposed upon afore-mentioned amounts from finality
until paid. Solidary costs against the defendant and
third-party defendants (except Roman Ozaeta).
SO ORDERED
Feria (Chairman), Fernan, Alampay and Cruz, JJ.,
concur.
JUAN F. NAKPIL & SONS and JUAN F. NAKPIL vs.
COURT OF APPEALS, ET AL.
G.R. Nos. L-47851, L-47863 and L-47896, 15 April 1988
PARAS, J p:
This is a motion for reconsideration of the October 3,
1986 decision of this Court, filed by the United
Construction Co., Inc., the decretal portion of which
reads:
xxx xxx xxx
Plaintiff-appellant Philippine Bar Association (PBA for
short) decided to construct an office building on its 840
square meters lot located at the corner of Aduana and
Arzobispo Streets, Intramuros, Manila. For the plans,
specifications and design, PBA contracted the services
of third-party defendants-appellants Juan F. Nakpil &
Sons and Juan F. Nakpil (NAKPILS for short). For the
construction of the building, PBA contracted the
services of United Construction Company, Inc.
(UNITED for short) on an administration basis. The
building was completed in June 1966.
On August 2, 1968, an unusually strong earthquake hit
Manila and its environs and the building in question
sustained major damage. The front columns of the
building buckled, causing the building to tilt forward
dangerously. As a temporary remedial measure, the
building was shored up by UCCI at the expense of
P13,661.28.
On November 29, 1968, PBA commenced this action for
recovery of damages against UCCI and its President
and General Manager Juan J. Carlos, claiming that the
351
collapse of the building was caused by defects in the
construction. UNITED, in turn, filed a third-party
complaint against the NAKPILS, alleging in essence
that the collapse of the building was due to the defects
in the architects' plans, specifications and design.
Roman Ozaeta, the then President of PBA, was
included as a third-party defendant for damages for
having included Juan J. Carlos, President of UNITED as
party defendant.
At the pre-trial, the parties agreed to refer the technical
issues in the case to a commissioner. Andres O. Hizon,
a lawyer and structural engineer, was appointed by the
Court as commissioner.
Meanwhile, PBA moved twice for the demolition of the
building on the ground that it might topple down in
case of a strong earthquake. The motions were opposed
by the defendants and the matter was referred to the
Commissioner. Finally, on April 30, 1979, the building
was authorized to be demolished at the expense of
PBA, but not before another earthquake of high
intensity on April 7, 1970 followed by other strong
earthquakes on April 9 and 12, 1970, caused further
damage to the property. The actual demolition was
undertaken by the buyer of the damaged building.
After the protracted hearings, the Commissioner
eventually submitted his report on September 25, 1970
with the findings that while the damage sustained by
the PBA building was caused directly by the August 2,
1968 earthquake, they were also caused by the defects
in the plans and specifications prepared by the
NAKPILS; UNITED's deviations from said plans and
specifications and its failure to observe the requisite
workmanship in the construction of the building; and
failure of PBA to exercise the requisite degree of
supervision in the construction of the building.
All the parties registered their objections to aforesaid
findings which in turn were answered by the
Commissioner.
The court agreed with the findings of the
Commissioner except as to the holding that the owner
is charged with full time supervision of the
construction. The court saw no legal or contractual
basis for such conclusion. Thus, on September 21, 1971,
the lower court rendered a decision, the decretal
portion of which, reads:
xxx xxx xxx
On appeal, the Court of Appeals modified the
abovesaid decision of the lower court. The dispositive
portion of the decision of the Court of Appeals, reads:
xxx xxx xxx
All the parties herein appealed the aforestated decision
of the Court of Appeals.
This Court promulgated on October 3, 1986 a decision
in favor of the Philippine Bar Association which
modified the appealed decision of the Court of
Appeals, as abovequoted (Rollo of G.R. No. L-47851,
pp. 634-662).
xxx xxx xxx
I the petitioners herein, that the construction was
United Construction Co., Inc. (UNITED for short), gave
considerable emphasis on the fact that the PBA building
did not collapse as found by the trial court and affirmed
by the Court of Appeals. Otherwise stated, UNITED
wishes to stress that subject building did not
disintegrate completely as the term "collapse" is
supposed to connote.
Be that as it may, it will be observed that in the assailed
decision, this Court is in complete accord with the
findings of the trial court and affirmed by the Court of
Appeals, that after the April 2, 1968 earthquake the
building in question was not totally lost, the collapse
was only partial and the building could still be restored
at the expense of P900,000.00. But after the subsequent
earthquake on April 7, 9, and 12, 1970 there was no
question that further damage was caused to the
property resulting in an eventual and unavoidable
collapse or demolition (complete collapse). In fact, on
April 30, 1970 the building was authorized by the trial
court to be demolished at the expense of the plaintiff.
Note that a needed demolition is in fact a form of
"collapse".
The bone of contention is therefore, not on the fact of
collapse but on who should shoulder the damages
resulting from the partial and eventual collapse. As
ruled by this Court in said decision, there should be no
question that the NAKPILS and UNITED are liable for
the damage.
Citing the case of Tucker v. Milan (49 O.G. 4379, 4380)
as the case in point, the pertinent portion of the decision
reads:
"One who negligently creates a
dangerous condition cannot escape
liability for the natural and probable
consequences thereof, although the
act of a third person, or an act of God
for which he is not responsible,
intervenes to precipitate the loss."
II
UNITED argues that it is the legal duty of PBA to
provide full-time and active supervision in the
construction of subject building. Failing to cite any
provision of law to support its arguments, UNITED
insists on the inherent legal duty of the owner,
reinforced by practice, usage and custom, to exercise
such supervision. Apart from the fact that UNITED
seems to have completely contradicted its own view
that this construction involves highly technical matters
and therefore beyond the ambit of ordinary
understanding and experience, the contrary appears to
be more in accord with ordinary practice, which is to
avail oneself of the services of architects and engineers
whose training and expertise make them more qualified
to provide effective supervision of the construction. In
fact, it was on the suggestion of Juan F. Nakpil, one of
undertaken on an administration basis (Decision, p. 3).
Thus, the trial court did not err in holding that charging
the owner with full time supervision of the construction
has no legal or contractual basis (Decision, p. 7).
III
UNITED points out that bad faith is a question of fact
which was not established. The Commissioner, the trial
court and the Court of Appeals, all of which are triers of
fact, allegedly concede that there was negligence but
not bad faith.
A careful study of the decision will show that there is
no contradiction between the above finding of
negligence by the trial court which was affirmed by the
Court of Appeals and the ruling of this Court. On the
contrary, on the basis of such finding, it was held that
such wanton negligence of both the defendant and the
third-party defendants in effecting the plans, designs,
specifications, and construction of the PBA building is
equivalent to bad faith in the performance of their
respective tasks (Decision, p. 28).
xxx xxx xxx
PREMISES CONSIDERED, UNITED's motion for
reconsideration is hereby DENIED; the NAKPILS'
motion for leave to file second motion for
reconsideration is also DENIED, the latters' first motion
on the same grounds having been already denied with
finality in the resolution of April 3, 1987. Needless to
say, the Motion to Refer this case to the Court En Banc
is DENIED, in view of all the things stated in this
Resolution.
SO ORDERED.
Fernan, Padilla, Bidin and Cortes, JJ., concur.
Gutierrez, J., took no part — ponente in the Court of
Appeals.
V. SPECIAL TORTS
a. Abuse of Rights
ARTICLE 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.
352
 VELAYO vs. SHELL COMPANY OF THE
PHILIPPINE ISLANDS, LTD., ET AL.
G.R. No. L-7817, 31 October 1956
FELIX, J p:
Antecedents — The Commercial Air Lines, Inc., which
will be hereinafter referred to as CALI, is a corporation
duly organized and existing in accordance with the
Philippines laws, with offices in the City of Manila and
previously engaged in air transportation business. The
Shell Company of the P. I., Ltd., which will be
designated as the defendant, is on the other hand, a
corporation organized under the laws of England and
duly licensed to do business in the Philippines, with
principal offices at the Hongkong and Shanghai Bank
building in the City of Manila.
Since the start of CALI's operations, its fuel needs were
all supplied by the defendant. Mr. Desmond Fitzgerald,
its Credit Manager who extended credit to CALI, was
in charge of the collection thereof. However, all matters
referring to extensions of the term of payment had to be
decided first by Mr. Stephen Crawford and later by Mr.
Wildred Wooding, who represented in this country
Defendant's Board of Directors, the residence of which
is in London, England (Exhs. 4-B and 4-A).
As of August, 1948, the books of the Defendant showed
a balance of P170,162.58 in its favor for goods it sold
and delivered to CALI. Even before August 6, 1948,
Defendant had reasons to believe that the financial
condition of the CALI was for from being satisfactory.
As a matter of fact, according to Mr. Fitzgerald, CALI's
Douglas C-54 plane, then in California, was offered to
him by Mr. Alfonso Sycip, CALI's President of the
Board of Directors, in partial settlement of their
accounts, which offer was, however, declined by Mr.
Crawford, probably because upon inquiries made by
Mr. Fitzgerald sometime before August 6, 1948, for the
purpose of preparing the report for its London office
regarding CALI's indebtedness, Col. Lambert, CALI's
Vice President and General Manager, answered that the
total outstanding liabilities of his corporation was only
P550,000, and the management of Defendant probably
assumed that the assets of the CALI could very well
meet said liabilities and were not included to take
charge of the sale of CALI's said Douglas C-54 plane to
collect its credit.
On August 6, 1948, the management of CALI informally
convened its principal creditors (excepting only the
insignificant small claims) who were invited to a
luncheon that was held between 12:00 and 2:00 o'clock
in the afternoon of that day in the Trade and Commerce
Building at 123 Juan Luna St., Manila, and informed
them that CALI was in a state of insolvency and had to
stop operation. The creditors present, or represented at
the meeting, were: Mr. A. L. Bartolini, representing
Firestone Tire & Rubber Co.; Mr. Quintin Yu,
representing Commercial News; Mr. Mark Pringle,
representing Smith, Bell & Co. (Lloyds of London);
353
Messrs. Vicente Liwag, C. Dominguez and Pacifico
Agcaoili, representing National Airports Corporation;
Messrs. W. J. Bunnel and Manuel Chan, representing
Goodrich International Rubber Co.; Mr. G. E. Adair,
representing Goodyear Tire & Rubber Co.; Mr. J. T.
Chuidian, representing Gibbs, Gibbs, Chuidian &
Quasha; Mr. E. Valera, representing Mabasa & Co.; Mr.
D. Fitzgerald, representing Shell Co. P.I. Ltd.; and Mr.
Alfonso Z. Sycip, representing himself, Yek Hua
Trading Corporation and Paul Sycip (Exhs. NN, JJJ,
MM, QQQ, II-4, SS, TT, UU, VV, WW, XX, YY, ZZ,
AAA, BBB, CCC, DDD, EEE, FFF, GGG, and HHH).
xxx xxx xxx
What occurred in that meeting may be summarized as
follows: Mr. Alexander Sycip, Secretary of the Board of
Directors of the CALI, informed the creditors present
that this corporation was insolvent and had to stop
operations. He explained the memorandum agreement
executed by the CALI with the Philippine Air Lines,
Inc., on August 4, 1948, regarding the proposed sale to
the latter of the aviation equipments of the former
(Exhs. MM and QQQ, par. 1 — memo of meeting; Exhs.
III and PPP — P. Agcaoili's memorandum dated
August 7, 1948, to the General Manager of the National
Airports Corp.). Mr. Alexander Sycip was assisted in
the explanation by CPA Alfredo Velayo of Washington,
Sycip & Company, Auditors of the CALI, who
discussed the balance sheets and distributed copies
thereof to the creditors present (Exhs. NN, NN-1 to 7;
Exh. JJ — P. Agcaoili's copy of balance sheet p. 229- 230
t.s.n., Nov. 27, 1951, of the testimony of D. Fitzgerald).
The said balance sheet made mention of a C-54 plane in
the United States, the property now involved in this
suit. He was likewise assisted in his explanation by Mr.
Curtis L. Lambert, Vice President and General Manager
of the CALI, who described in greater detail the assets
of the CALI. There was a general understanding among
all the creditors present on the desirability of
consummating the sale in favor of the Philippine Air
Lines Inc. (Exhs. MM and QQQ, par. 2 — Memo of
meeting; Exhs. III and PPP, par. 5 — P. Agcaoili's
memorandum dated August 7, 1948, to the General
Manager of the National Airports Corp.; and pp. 299-
300 t.s.n., January 15, 1952, of the testimony of
Desmond Fitzgerald).
Then followed a discussion on the payment of claims of
creditors and the preferences claimed for the accounts
due to the employees, the Government and the
National Airports Corporation. The representatives of
the latter Messrs. Vicente H. Liwag, C. Dominguez and
Pacifico V. Agcaoili, contended that their accounts were
preferred. The other creditors disputed such contention
of preference (Exhs. MM and QQQ, par. 3 — 0151
Memo of meeting; Exhs. III and PPP, par. 3 — P.
Agcaoili's memorandum dated August 1, 1948, to the
General Manager of the National Airports Corp.; and
pp. 247-248 t.s.n., January 10, 1952, of the testimony of
D. Fitzgerald). No understanding was reached on this
point and it was then generally agreed that the matter
of preference be further studied by a working
committee to be formed (Exhs. MM, par. 3 — Memo of
meeting). The creditors present agreed to the formation
of a working committee to continue the discussion of
the payment of claims and preferences alleged by
certain creditors, and it was further agreed that said
working committee would supervise the preservation
of the properties of the corporation while the creditors
attempted to come to an understanding as to a fair
distribution of the assets among them (Exhs. MM and
QQQ, Memo of meeting). From the latter exhibit the
following is copied:
xxx xxx xxx
Mr. Fitzgerald did not decline the nomination to form
part of said working committee and on August 9, 1948,
the 3 members thereof discussed methods of achieving
the objectives of the committee as decided at the
creditors' meeting, which were to preserve the assets of
the CALI and to study the way of making a fair
division of all the assets among the creditors. Atty.
Sycip made an offer to Mr. D. Fitzgerald to name a
representative to oversee the preservation of the assets
of the CALI, but Mr. Fitzgerald replied that the
creditors could rely on Col. Lambert. Atty. Pacifico
Agcaoili promised to refer the arguments adduced at
the second meeting to the General Manager of the
National Airports Corporations and to obtain the
advice of the Corporate Counsel, so the negotiation
with respect to the division of assets of the CALI among
the creditors was left pending or under advice when on
that very day of the meeting of the working committee,
August 9, 1948, which Mr. Fitzgerald attended,
Defendant effected a telegraphic transfer of its credit
against the CALI to the American corporation Shell Oil
Company, Inc., assigning its credit, amounting to
$79,440.00, which was subsequently followed by a deed
of assignment of credit dated August 10, 1948, the
credit amounting this time to the sum of $85,081.29
(Exh. I).
On August 12, 1948, the American corporation Shell Oil
Company, Inc., filed a complaint against the CALI in
the Superior Court of the State of California, U.S.A. in
and for the County of San Bernardino, for the collection
of an assigned credit of $79,440.00 — Case No. 62576 of
said Court (Exhs. A, E, F, G, H, V, and Z) and a writ of
attachment was applied for and issued on the same
date against a C-54 plane (Exhs. B, C, D, Y, W, X, and X-
1).
On September 17, 1948, an amended complaint was
filed to recover an assigned credit of $85,081.29 (Exhs. I,
K, L, M, Q, R, S, T, U, DD) and a supplemental
attachment for a higher sum was applied for and issued
against the C-54 plane, plus miscellaneous personal
properties held by Pacific Overseas Air Lines for the
CALI (Exhs. N, O, P, AA, BB, BB-1 and CC) and on
January 5, 1949, a judgment by default was entered by
the American court (Exhs. J, EE, FF, GG, and HH).
Unaware of Defendant's assignments of credit and
attachment suit, the stockholders of CALI resolved in a
special meeting of August 12, 1948, to approve the
memorandum agreement of sale to the Philippine Air
Lines, Inc, and noted "that the Board had been trying to
reach an agreement with the creditors of the
corporation to prevent insolvency proceedings, but so
far no definite agreement had been reached" (Exh. OO
— Minutes of August 12, 1948, stockholders' meeting).
By the first week of September, 1948, the National
Airports Corporation learned of Defendant's action in
the United States and hastened to file its own complaint
with attachment against the CALI in the Court of First
Instance of Manila (Exhs. KKK, LLL, and MMM). The
CALI, also prompted by Defendant's action in getting
the alleged undue preference over the other creditors
by attaching the C-54 plane in the United States,
beyond the jurisdiction of the Philippines, filed on
October 7, 1948, a petition for voluntary insolvency. On
this date, an order of insolvency was issued by the
court (Exh. JJ) which necessarily stayed the National
Airports Corporation's action against the CALI and
dissolved its attachment (Exh. NNN), thus compelling
the National Airports Corporation to file its claims with
the insolvency court (Exh. SS).
By order of October 28, 1948, the Court confirmed the
appointment of Mr. Alfredo M. Velayo, who was
unanimously elected by the creditors as Assignee in the
proceedings, and ordered him to qualify as such by
taking the oath of office within 5 days from notice and
filing a bond in the sum of P30,000.00 to be approved
by the Court conditioned upon the faithful performance
of his duties, and providing further that all funds that
the Assignee may collect or receive from the debtors of
the corporation, or from any other source or sources, be
deposited in a local bank (Exh. KK). On November 3,
1948, the clerk of court executed a deed of conveyance
in favor of the Assignee (Alfredo M. Velayo) over all
the assets of the CALI (Exh. LL).
The Case. — After properly qualifying as Assignee,
Alfredo M. Velayo instituted this case (No. 6966 of the
Court of First Instance of Manila) on December 17,
1948, against the Shell Company of P. I., Ltd., for the
purpose of securing from the Court a writ of injunction
restraining Defendant, its agents, servants, attorneys
and solicitors from prosecuting in and for the County of
San Bernardino in the Superior Court of the State of
California, U.S.A. the aforementioned Civil Case No.
62576 against the insolvent Commercial Air Lines, Inc.,
begun by it in the name of the American corporation
Shell Oil Company, Inc., and as an alternative remedy,
in case the purported assignment of Defendant's
alleged credit to the American corporation Shell Oil
Company, Inc., and the attachment issued against CALI
in the said Superior Court of California shall have the
effect of defeating the procurement by plaintiff as
Assignee in insolvency of the above- mentioned
airplane, which is the property of the insolvent CALI,
situated in the Ontario International Airport, with in
354
the County of San Bernardino, State of California,
U.S.A., that judgment for damages in double the value
of the airplane be awarded in favor of plaintiff against
Defendant, with costs.
The complaint further prays that upon the filing of a
bond executed to the Defendant in an amount to be
fixed by the Court, to the effect that plaintiff will pay to
Defendant all damages the latter may sustain by reason
of the injunction if the Court should finally decide that
the plaintiff was not entitled thereto, the Court issued a
writ of preliminary injunction enjoining the Defendant,
its agent, servants, attorney's and solicitor, from
prosecuting the aforementioned case No. 62576, the
same writ of preliminary injunction to issue without
notice to the Defendant it appearing by verified
complaint that the great irreparable injury will result to
the plaintiff-appellant before the matter could be on
notice. The plaintiff also prays for such other remedies
that the Court may deem proper in the premises.
On December 20, 1948, the Defendant filed an
opposition to the plaintiff's petition for the issuance of a
writ of the preliminary injunction, and on December 22,
1948, the Court denied the same because whether the
conveyance of Defendant's credit was fraudulent or not,
the Philippine court would not be in position to enforce
its orders as against the American corporation Shell Oil
Company, Inc., which is outside of the jurisdiction of
the Philippines.
Plaintiff having failed to restrain the progress of the
attachment suit in the United States by denial of his
application for a writ of preliminary injunction and the
consequences on execution of the C-54 plane in the
County of San Bernardino, State of California, U. S. A.,
he confines his action to the recovery of damages
against the Defendant.
On December 28, 1948, Defendant filed its answer to the
complaint, which was amended on February 3, 1949. In
its answer, Defendant, besides denying certain
averments of the complaint alleged, among other
reasons, that the assignment of its credit in favor of the
Shell Oil Company, Inc., in the United States was for a
valuable consideration and made in accordance with
the established commercial practices, there being no
law prohibiting a creditor from assigning his credit to
another; that it had no interest whatsoever in Civil Case
No. 62576 instituted in the Superior Court in the State
of California by the Shell Oil Company, Inc., which is a
separate and distinct corporation organized and
existing in the State of Virginia and doing business in
the State of California, U. S. A., the Defendant having as
its stockholders the Shell Petroleum Company of
London and other persons residing in that City, while
the Shell Oil Company Inc., of the United State has its
principal stockholders the Shell Union Oil Company of
the U.S. and presumably countless American investors
inasmuch as its shares of stock are being traded daily in
the New York stock market; that Mr. Fitzgerald,
Defendant's Credit Manager, was merely invited to a
355
luncheon-meeting at the Trade and Commerce Building
in the City of Manila on August 6, 1948, without
knowing the purpose for which it was called; and that
Mr. Fitzgerald could not have officially represented the
Defendant at that time because such authority resides
on Mr. Stephen Crawfurd. Defendant, therefore, prays
that the complaint be dismissed with costs against the
plaintiff.
Then Alfonso Sycip, Yek Hua Trading Corporation and
Paul Sycip, as well as Mabasa & Co., filed, with
permission of the Court, their respective complaints in
intervention taking the side of the plaintiff. These
complaints in intervention were timely answered by
Defendant which prayed that they be dismissed.
After proper proceedings and hearing, the Court
rendered decision on February 26, 1954, dismissing the
complaint as well as the complaints in intervention,
with costs against the plaintiff. In view of this outcome,
plaintiff comes to us praying that the judgment of the
lower court be reversed and that the Defendant be
ordered to pay him damages in the sum of P660,000
(being double the value of the airplane as established
by evidence, i.e., P330,000), with costs, and for such
other remedy as the Court may deem just and equitable
in the premises.
The Issues. — Either admission of the parties, or by
preponderance of evidence, or by sheer weight of the
circumstance attending the transactions herein
involved, We find that the facts narrated in the
preceding statement of the "antecedents" have been
sufficiently established, and the questions at issue
submitted to our determination in this instance may be
boiled down to the following propositions:
(1) Whether or not under the facts of the case, the
defendant Shell Company of the P. I., Ltd., taking
advantage of its knowledge of the existence of CALI's
airplane C-54 at the Ontario International Airport
within the Country of San Bernardino, State of
California, U. S. A.,
(Which knowledge it acquired: first at the informal
luncheon-meeting of the principal creditors of CALI on
August 5, 1948, where its Credit Manager, Mr.
Desmond Fitzgerald, was selected to form part of the
Working Committee to supervise the preservation of
CALI's properties and to study the way of making a fair
division of all the assets among the creditors and thus
avoid the institution of insolvency proceedings in court;
and
Subsequently, at the meeting of August 9, 1948, when
said Mr. Fitzgerald met the other members of the said
Working Committee and heard and discussed the
contention of certain creditors of CALI — on the
accounts due the employees, the Government and the
National Airports Corporation — who alleged that their
claims were preferred),
acted in bad faith and betrayed the confidence and trust
of the other creditors of CALI present in said meeting
by affecting a hasty telegraphic transfer of its credit to
the American corporation Shell Oil Company, Inc., for
the sum of $79,440 which was subsequently followed
by a deed of assignment of credit dated August 10,
1948, amounting this time to the sum of $85,081.28
(Exhs. Z), thus defeating the purpose of the informal
meetings of CALI's principal creditors end depriving
the plaintiff, as its Assignee, of the means of obtaining
said C-54 plane, or the value thereof, to the detriment
and prejudice of the other CALI's creditors who were
consequently deprived of their share in the distribution
of said value; and (2) Whether or not by reason of said
betrayal of confidence and trust, Defendant may be
made under the law to answer for the damages prayed
by the plaintiff; and if so, what should be the amount of
such damages.
DISCUSSION OF THE CONTROVERSY
I. The mere enunciation of the first proposition can
lead to no other conclusion than that Defendant, upon
learning the precarious economic situation of CALI and
that with all probability, it could not get much of its
outstanding credit because of the preferred claims of
certain other creditors, forgot that "Man does not live
by bread alone" and entirely disregarded all moral
inhibitory tenets. So, on the very day its Credit
Manager attended the meeting of the Working
Committee on August 9, 1948, it hastily made a
telegraphic assignment of its credit against the CALI to
its sister American Corporation, the Shell Oil Company,
Inc., and by what is stated in the preceding pages
hereof, We know that were the damaging effects of said
assignment upon the right of other creditors of the
CALI to participate in the proceeds of said CALI's plane
C-54.
Defendants endeavor to extricate itself from any
liability caused by such evident misdeed of its part,
alleging that Mr. Fitzgerald had no authority from his
principal to commit the latter on any agreement; that
the assignment of its credit in favor of its sister
corporation, Shell Oil Company, Inc., was for a valuable
consideration and in accordance with the established
commercial practices; that there is no law prohibiting a
creditor from assigning his credit to another; and that
the Shell Oil Company Inc., of the United States is a
corporation different and independent from the
Defendant. But all these defenses are entirely
immaterial and have no bearing on the main question
at issue in this appeal. Moreover, we might say that
Defendant could not have accomplished the transfer of
its credit to its sister corporation if all the Shell
companies throughout the world would not have a sort
of union, relation or understanding among themselves
to come to the aid of each other. The telegraphic
transfer made without knowledge and at the back of
the other creditors of CALI may be a shrewd and
surprise move that enabled Defendant to collect almost
all if not the entire amount of its credit, but the Court of
Justice cannot countenance such attitude at all, and
much less from a foreign corporation to the detriment
of our Government and local business.
To justify its actions, Defendant may also claim that Mr.
Fitzgerald, based on his feeling of distrust and
apprehension, entertained the conviction that
intervenors Alfonso Sycip and Yek Hua Trading
Corporation tried to take undue advantage by
infiltrating their credits. But even assuming for the sake
of argument, that these intervenors really resorted to
such stratagem or fraudulent device, yet Defendant's
act finds not justification for no misdeed on the part of
a person is cured by any misdeed of another, and it is to
be noted that neither Alfonso Z. Sycip, nor Yek Hua
Trading Corporation were the only creditors of CALI,
nor even preferred ones, and that the infiltration of
one's credit is of no sequence if it can not be proven in
the insolvency proceedings to the satisfaction of the
court. Under the circumstances of the case, Defendant's
transfer of its aforementioned credit would have been
justified only if Mr. Fitzgerald had declined to take part
in the Working Committee and frankly and honestly
informed the other creditors present that he had no
authority to bind his principal and that the latter was to
be left free to collect its credit from CALI by whatever
means his principal deemed wise and were available to
it. But then such information would have immediately
dissolved all attempts to come to an amicable
conciliation among the creditors and would have
precipitated the filing in court of CALI's voluntary
insolvency proceedings and nullified the intended
transfer of Defendant's credit to its above-mentioned
sister corporation.
II. We may agree with the trial judge, that the
assignment of Defendant's credit for a valuable
consideration is not violative of the provisions of
sections 32 and 70 of the Insolvency Law (Public Act
No. 1956), because the assignment was made since
August 9, 1948, the original complaint in the United
States was filed on August 12, 1948, and the writ of
attachment issued on this same date, while CALI filed
its petition for insolvency on October 7, 1948. At his
Honor correctly states, said Sections 32 and 70 only
contemplate acts and transactions occuring within 30
days prior to the commencement of the proceedings in
insolvency and, consequently, all other acts outside of
the 30-day period cannot possibly be considered as
coming within the orbit of the operation. In addition to
this, We may add that Article 70 of the Insolvency Law
refers to acts of the debtor (in this case the insolvent
CALI) and not of the creditor, the Shell Company of the
P. I. Ltd. But section 70 does not constitute the only
provisions of the law pertinent to the matter. The
Insolvency Law also provides the following:
"SEC. 33. The assignee shall have the
right to recover all the estate, debt
and effects of said insolvent. If at the
time of the commencement of the
proceedings in insolvency, an action
356
 is pending in the name of the debtor,
for the recovery of a debt or other
thing might or ought to pass to the
assignee by the assignment, the
assignee shall be allowed to
prosecute the action, in like manner
and with life effect as if it had been
originally commenced by him. If
there are any rights of action in favor
of the insolvency for damages, on any
account, for which an action is not
pending the assignee shall have the
right to prosecute the same with
effect as the insolvent might have
done himself if no proceedings in
insolvency had been instituted. . . ."
It must not be forgotten that in accordance with the
spirit of the Insolvency Law and with the provisions of
Chapter V thereof which deal with the powers and
duties of a receiver, the assignee represents the
insolvent as well as the creditors in voluntary and
involuntary proceedings — Intestate of Mariano G.
Veloso, etc. vs. Vda. de Veloso S. C. — G. R. No. 42454;
Hunter, Kerr & Co. vs. Samuel Murray, 48 Phil. 449;
Chartered Bank vs. Imperial, 48 Phil. 931; Asia Banking
Corporation vs. Herridge, 45 Phil. 527 — (II Tolentino's
Commercial Laws of the Philippines, 633). See also
Section 36 of the Insolvency Law. From the foregoing,
We see that plaintiff, as Assignee of the Insolvent CALI,
had personality and authority to institute this case for
damages, and the only question that remains
determination is whether the payment of damages
sought to be recovered from Defendant may be ordered
under the Law and the evidence of record.
IF ANY PERSON, before the assignment is made,
having notice of the commencement of the proceedings
in insolvency, or having reason to believe that
insolvency proceedings are about to be commenced,
embezzles or disposes of any money, goods, chattels, or
effects of the insolvent, he is chargeable therewith, and
liable to an action by the assignee for double the value
of the property sought to be embezzled or disposed of,
to be received for the benefit of the insolvent estate.
The writer of this decision does not entertain any doubt
that the Defendant — taking advantage of his
knowledge that insolvency proceedings were to be
instituted by CALI if the creditors did not come to an
understanding as to the manner of distribution of the
insolvent asset among them, and believing it most
probable that they would not arrive at such
understanding as it was really the case — schemed and
effected the transfer of its sister corporation in the
United States, where CALI's plane C-54 was by that
swift and unsuspected operation efficaciously disposed
of said insolvent's property depriving the latter and the
Assignee that was latter appointed, of the opportunity
to recover said plane. In addition to the aforementioned
Section 37, Chapter 2 of the PRELIMINARY TITLE of
357
the Civil Code, dealing on Human Relations, provides
the following:
"Art 19. Any person must, in the exercise of
his rights and in the performances of his
duties, act with justice, give everyone his due
and observe honesty and good faith".
It maybe said that this article only contains a mere
declarations of principles and while such statement
may be is essentially correct, yet We find that such
declaration is implemented by Article 21 and sequence
of the same Chapter which prescribe the following:
"Art. 21. Any person who wilfully 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".
The Code Commission commenting on this article, says
the following:
"Thus at one stroke, the legislator, if
the foregoing rule is approved (as it
was approved), would vouchsafe
adequate legal remedy for that untold
numbers of moral wrongs which is
impossible for human foresight to
provide for specifically in the
statutes.
"But, it may be asked, would this
proposed article obliterate the
boundary line between morality and
law? The answer is that, in the last
analysis, every good law draws its
breath of life from morals, from those
principles which are written with
words of fire in the conscience of
man. If this premises is admitted,
then the proposed rule is a prudent
earnest of justice in the face of the
impossibility of enumerating, one by
one, all wrongs which cause
damages. When it is reflected that
while codes of law and statutes have
changed from age to age, the
conscience of man has remained fixed
to its ancient moorings, one can not
but feel that it is safe and salutary to
transmute, as far as may be, moral
norms into legal rules, thus imparting
to every legal system that enduring
quality which ought to be one of its
superlative attributes.
"Furthermore, there is no belief of
more baneful consequence upon the
social order than that a person may
with impunity cause damage to his
fellow-men so long as he does not
 break any law of the State, though he
may be defying the most sacred
postulates of morality. What is more,
the victim loses faith in the ability of
the government to afford him
protection or relief.
"A provision similar to the one under
consideration is embodied in article
826 of the German Civil Code.
"The same observations may be made
concerning injurious acts that are
contrary to public policy but are not
forbidden by statute. There are
countless acts of such character, but
have not been foreseen by the
lawmakers. Among these are many
business practices that are unfair or
oppressive, and certain acts of
landholders and employers affecting
their tenants and employees which
contravene the public policy of social
justice.
"Another rule is expressed in Article
24 which compels the return of a
thing acquired 'without just or legal
grounds'. This provision embodies
the doctrine that no person should
unjustly enrich himself at the expense
of another, which has been one of the
mainstays of every legal system for
centuries. It is most needful that this
ancient principles be clearly and
specifically consecrated in the
proposed Civil Code to the end that
in cases not foreseen by the
lawmaker, no one may unjustly
benefit himself to the prejudice of
another. The German Civil Code has
a similar provision (art. 812)." (Report
of the Code Commission on the
Proposed Civil Code of the
Philippines, p. 40- 41).
From the Civil Code Annotated by Ambrosio Padilla,
Vol. I, p. 51, 1956 edition, We also copy the following:
"A moral wrong or injury, even if it
does not constitute a violation of a
statute law, should be compensated
by damages. Moral damages (Art.
2217) may be recovered (Art. 2219). In
Article 20, the liability for damages
arises from a willful or negligent act
contrary to law. In this article, the act
is contrary to morals, good customs
or public policy."
Now, if Article 23 of the Civil Code goes as far as to
provide that:
"Even if an act or event causing
damage to another's property was
not due to the fault or negligence of
the defendant, the latter shall be
liable for indemnity if through the act
or event he was benefited."
with mere much more reason the Defendant should be
liable for indemnity for acts it committed in bad faith
and with betrayal of confidence.
It may be argued that the aforequoted provisions of the
Civil Code only came into effect on August 30, 1950,
and that they cannot be applicable to acts that took
place in 1948, prior to its effectivity. But Article 2252 of
the Civil Code, though providing that:
"Changes made and new provisions
and rules laid down by this Code
which may be prejudice or impair
vested or acquired rights in
accordance with the old legislation,
shall have no retroactive effect. . . ."
implies that when the new provisions of the Code does
nor prejudice or impair vested or acquired rights in
accordance with the old legislation — and it cannot be
alleged that in the case at bar Defendant had any vested
or acquired right to betray the confidence of the
insolvent CALI or of its creditors — said new
provisions, like those on Human Relations, can be
given retroactive effect. Moreover, Article 2253 of the
Civil Code further provides:
". . . But if a right should be declared
for the first time in this Code, it shall
be effective at once, even though the
act or event which may give rise
thereto may have been done or may
have occurred under the prior
legislation, provided said new right
does not prejudice or impair any
vested or acquired right, of the same
origin."
and according to Article 2254, "no vested or acquired
right can arise from acts or omissions which are against
the law or which infringe upon the right of others."
In case of Juan Castro vs. Acro Taxicab Company, (82 Phil.,
359; 47 Off. Gaz., [5] 2023), one of the question at issue
was whether or not the provisions of the New Civil
Code of the Philippines on moral damages should be
applied to an act of negligence which occurred before
the effectivity of said code, and this Court, through Mr.
Justice Briones, sustaining the affirmative proposition
and citing decisions of the Supreme Court of Spain of
February 14, 1941, and November 14, 1934, as well as
the comment of Mr. Castan, Chief Justice of the
Supreme Court of Spain, about the revolutionary
tendency of Spanish jurisprudence, said the following:
358

"We conclude, therefore, reaffirming
the doctrine laid down in the case of
Lilius (59 J. F. 800) in the sense that
indemnity lies for moral and
patrimonial damages which include
physical and pain sufferings. With
this (doctrine), We effect in this
jurisdiction a real symbiosis 1 of the
Spanish and American Laws and, at
the same time, We act in consonance
with the spirit and progressive march
of time" (translation)
The writer of this decision does not see any reason for
not applying the provisions of Section 37 of the
Insolvency Law to the case at bar, specially if We take
into consideration that the term "any person" used
therein cannot be limited to the officers or employee of
the insolvent, as no such limitation exist in the wording
of the section (See also Sec. 38 of the same Act), and
that, as stated before, the Defendant schemed and
affected the transfer of its credits (from which it could
derive practically nothing) to its sister corporation in
the United States where CALI's plane C-54 was then
situated, succeeding by such swift and unsuspected
operation in disposing of said insolvent's property by
removing it from the possession and ownership of the
insolvent. However, some members of this Court
entertain doubt as to the applicability of said section 37
because in their opinion what Defendant in reality
disposed of was its own credit and not the insolvent's
property, although this was practically the effect and
result of the scheme. Having in mind this objection and
that the provisions of Article 37 making the person
coming within its purview liable for double the value of
the property sought to be disposed of constitute a sort
of penal clause which shall be strictly construed, and
considering further that the same result may be
obtained, by applying only the provisions of the Civil
Code, the writer of this decision yields to the objection
aforementioned.
Articles 2229, 2232, 2234, 2142, and 2143 of the Civil
Code read as follows:
"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. 2232. In contracts quasi-
contracts, the Court may award
exemplary damages if the defendant
acted in a wanton, fraudulent,
reckless, oppressive, or malevolent
manner."
"Art. 2234. While the amount
of the exemplary damages need not
359
be proved, the plaintiff must show
that he is entitled to moral,
temperate, or compensatory damages
before the court may consider the
question of whether or not exemplary
damages should be awarded. In case
liquidated damages should be upon,
although no proof of loss is necessary
in order that such liquidated
damages be recovered, nevertheless,
before the court may consider the
question of granting exemplary in
addition to the liquidated damages,
the plaintiff must show that he would
be entitled to moral, temperate or
compensatory damages were it not
for the stipulation for liquidated
damages."
"Art. 2142. Certain lawful,
voluntary and unilateral acts give rise
to the juridical relation of quasi-
contract to the end that no one shall
be unjustly enriched or benefited at
the expense of another."
"Art, 2143. The provisions for
quasi-contracts in this Chapter do not
exclude other quasi-contracts which
may come within the purview of the
preceding article."
In accordance with these quoted provisions of the Civil
Code, We hold Defendant liable to pay to the plaintiff,
for the benefit of the insolvent CALI and its creditors,
as compensatory damages a sum equivalent to the
value of the plane at the time aforementioned and
another equal sum as exemplary damages.
There is no clear proof in the record about the real
value of CALI's plane C-54 at the time when
Defendant's credit was assigned to its sister corporation
in the United States.
Judgment
Wherefore, and on the strength of the foregoing
considerations, the decision appealed from is reversed
and Defendant-Appellee-, Shell Company of the
Philippine Islands, Ltd., is hereby sentenced to pay to
Plaintiff-Appellant, as Assignee of the insolvent CALI,
damages in a sum double the amount of the value of
the insolvent's airplane C-54 at the time Defendant's
credit against the CALI was assigned to its sister
corporation in the United States, which value shall be
determined in the corresponding incident in the lower
court after this decision becomes final. Costs are taxed
against defendant-appellee. It is so ordered.
Paras, C.J., Padilla, Montemayor, Bautista Angelo,
Labrador, Concepcion, Reyes, J. B. L., and Endencia,
concur.
DAVID P. LLORENTE vs. THE SANDIGANBAYAN
G.R. No. 85464, 3 October 1991.
SAMIENTO, J.:p
The petitioner questions the Decision of the
Sandiganbayan holding him civilly liable in spite of an
acquittal. The facts are not disputed:
Atty. Llorente was employed in the
PCA, a public corporation (Sec. 1, PD
1468) from 1975 to August 31, 1986,
when he resigned. He occupied the
positions of Assistant Corporate
Secretary for a year, then Corporate
Legal Counsel until November 2,
1981, and, finally, Deputy
Administrator for Administrative
Services, Finance Services, Legal
Affairs Departments. ...
As a result of a massive
reorganization in 1981, hundreds of
PCA employees resigned effective
October 31, 1981. Among them were
Mr. Curio, Mrs. Perez, Mr. Azucena,
and Mrs. Javier (TSN, Oct. 22/87, p.
2; Exhs. M-2, N-1, and O-1). They
were all required to apply for PCA
clearances in support of their gratuity
benefits (Exhs. C, M-2, N-1, and 0-1).
Condition (a) of the clearance
provided:
The clearance shall be signed
by the PCA officers concemed
only when there is no item
appearing under "PENDING
ACCOUNTABILITY" or after
every item previously entered
thereunder is fully settled.
Settlement thereof shall be
written in RED ink. (Exhs. D or
D-1 and 1-B)
After the clearance was signed by the
PCA officers concerned, it was to be
approved, first, by Atty. Llorente, in
the case of a rank-and-file employee,
or by Col. Duefias, the acting
administrator, in the case of an
officer, and then by Atty. Rodriguez,
the corporate auditor ...
Notwithstanding Condition (a) just
quoted, the clearances of Mrs Perez
and Mr. Azucena both dated October
30, 1981, were favorably acted upon
by the CPA officers concerned,
including Mrs. Sotto, acting for the
accounting division, even if the
clearances showed they had pending
accountabilities to the GSIS and the
UCPB, and subsequently approved
by Attys. Llorente and Rodriguez
(Exhs. M and N). Thereafter, the
vouchers for their gratuity benefits,
also indicating their outstanding
obligations were approved, among
others, by Atty Llorente, and their
gratuity benefits released to them
after deducting those accountabilities.
...
The clearance of Mrs. Javier of the
same date of October 30, 1991 was
also signed by all PCA officers
concerned, including Mrs. Sotto even
though the former had unsettled
obligations noted thereon, viz 'SIS
loan P5,387.00 and UCPB car loan
P19,705.00, or a total of P25,092.00,
and later on approved by Col.
Dueñas, Mrs Javier being an officer,
and Atty. Rodriguez "Exh. (O)".
Similariv the, voucher of Mrs Javier
for her gratuity benefits likewise
recited her accountabilities of
P25,092.00 plus P92.000.00, which
was handwritten. Both accounts were
deducted from her gratuity benefits,
and the balance released to her on
November 16, 1981. The voucher
passed post-audit by Atty. Rodriguez
on December 1, 1981 (Exhs. L, L-1, L-
2, and L-3).
The said P92,000.00 was the
disallowed portion of the cash
advances received by Mr. Curio in
connection with his duties as "super
cargo" in the distribution of seed nuts
throughout the country. He received
them through and in the name of
Mrs. Javier from the UCPB. When the
amount was disallowed, the UCPB
withheld from the PCA certain
receivables; the latter, in turn,
deducted the same amount from the
gratuity benefits of Mrs. Javier, she
being primarily liable therefor (Exhs,
L, L-1, L-2, and L-3), At the time of
the deduction, the additional
liquidation papers had already been
submitted and were in process. Just
in case she would not be successful in
having the entire amount wiped out,
she requested Mr. Curio, who
admittedly received it, to execute, as
he did, an affidavit dated November
26, 1981, in which he assumed
whatever portion thereof might not
be allowed ...
360
 The clearance of Mr. Curio dated
November 4,1981, (Exh. D or D-1)
likewise favorably passed all officers
concerned, including Mrs. Sotto, the
latter signing despite the notation
handwritten on December 8, 1981,
that Mr. Curio had pending
accountabilities, namely: GSIS loan
2,193.74, 201 accounts receivable
P3,897.75, and UCPB loan P3,623.49,
or a total of P10,714.78. However,
when the clearance was submitted to
Atty. Llorente for approval, he
refused to approve it. For this reason,
the clearance was held up in his office
and did not reach Atty. Rodriguez, ...
The reason given by Atty. Llorente
was that when the clearance was
presented to him on December 8,
1981, he was already aware of the
affidavit dated November 26, 1981, in
which Mr. Curio assumed to pay any
residual liability for the disallowed
cash advances, which at the time,
December 8, 1981, stood at P92,000.00
(Exhs. 2 and 2-A). Moreover, Mr.
Curio had other pending obligations
noted on his clearance totalling
Pl0,714.98 (Exh. 1-a). To justify his
stand, Atty. Llorente invoked
Condition (a) of the clearance (Exhs.
D and I-B), which, he said, was "very
stringent" and could not be
interpreted in any other way ...
On December 1, 1982, Mr. Curio
brought the matter of his unapproved
clearance to Col. Dueñas (Exh. G),
who referred it to the Legal
Department, which was under Atty.
Llorente as Deputy Administrator for
legal affairs. After follow-up in that
department, Mr. Curio received the
answer of Col. Dueñas dated
February 11, 1983, saying that the
clearance was being withheld until
the former settled his alleged
accountability for P92,000.00 reduced
already to P56,000.00 (Exh. I). Mr.
Curio elevated the matter to the
Chairman of the PCA Board, who
indorsed it to Col. Dueñas, who, in
turn, sent it to the Legal Department.
This time the latter, through its
Manager, Manuel F. Pastor, Jr., first
cousin of Atty. Llorente, submitted a
formal report under date of August
14, 1986, to the PCA Chairman,
justifying the action taken by Atty.
Llorente and Col. Dueñas (Exh. 12).
The PCA Chairman did not respond
361
in writing, but advised Mr. Curio to
wait for the resolution of the
Tanodbayan with which he (Mr.
Curio) had filed this case initially
against Atty. Llorente and, later on,
against Col. Duerias also. On August
31, 1986, Atty. Llorente resigned from
the PCA; the clearance, however,
could not be issued because,
according to the PCA Corporate
Legal Counsel, Arthur J. Liquate, the
PCA did not want to preempt the
Tanodbayan. On November 12, 1986,
the latter decided to institlite this case
in court ...
Nine days thereafter, or on
November 21, 1986, Mr. Curio
accomplished another clearance,
which no longer imposed Condition
(a) of his earlier clearance (Exh. E).
The new clearance was approved,
even if he still had pending
accountabilities, totalling P10,714.78
that had remained unsettled since
December 1981. His voucher was also
approved, and his gratuity benefits
paid to him in the middle of
December 1986, after deducting those
obligations (Exh. F). Nothing was
mentioned anymore about the
disallowed cash advances of
P92,000.00, which had been reduced
to P55,000.00 ...
Between December 1981 and
December 1986, Mr. Curio failed to
get gainful employment; as a result,
his family literally went hungry, In
1981, he applied for work with the
Philippine Cotton Authority, but was
refused, because he could not present
his PCA clearance. The same thing
happened when he sought
employment with the Philippine Fish
Marketing Administration in January
1982. In both prospective employers,
the item applied for was P2,500.00 a
month. At that time, he was only
about 45 years old and still
competitive in the job market. But in
1986, being already past 50 years, he
could no longer be hired
permanently, there being a regulation
to that effect. His present
employment with the Philippine
Ports Authority, which started on
March 16, 1987, was casual for that
reason. Had his gratuity benefits been
paid in 1981, he would have received
a bigger amount, considering that
since then interest had accrued and
 the foreign exchange rate of the peso
to the dollar had gone up ...
On December 10, 1986, an Information for violation of
Section 3(c) of the Anti-Graft and Corrupt Practices Act
was filed against the petitioner:
xxx xxx xxx
As indicated at the outset, the Sandiganbayan acquitted
the petitioner in the absence of any evidence that he
acted in bad faith. The Sandiganbayan cited three
considerations that precluded bad faith:
xxx xxx xxx
The Sandiganbayan, as we also indicated earlier, took
the petitioner to task civilly, and ordered him to pay
"compensatory damages" in the sum of P90,000.00.
According to the Sandiganbayan, the petitioner was
guilty nonetheless of abuse of right under Article 19 of
the Civil Code and as a public officer, he was liable for
damages suffered by the aggrieved party (under Article
27).
The petitioner claims that the Sandiganbayan's Decision
is erroneous even if the Sandiganbayan acquitted him
therein, because he was never in bad faith as indeed
found by the Sandiganbayan.
Under the 1985 Rules of Criminal Procedure, amending
Rules 110 through 127 of the Rules of Court, the
judgment of the court shall include, in case of acquittal,
and unless there is a clear showing that the act from
which the civil liability might arise did not exist, "a
finding on the civil liability of the accused in favor of
the offended party." The rule is based on the provisions
of substantive law, 6 that if acquittal proceeds from
reasonable doubt, a civil action, lies nonetheless.
The challenged judgment found that the petitioner, in
refusing to issue a certificate of clearance in favor of the
private offended party, Herminigildo Curio, did not act
with "evident bad faith," one of the elements of Section
3(e) of Republic Act No. 3819. 7 We agree with tile
judgment, insofar as it found lack of evident bad faith
by the petitioner, for the reasons cited therein basicallv,
because the petitioner was acting within the bounds of
law in refusing to clear Curio although "[t]he practice
was that the clearance was nevertheless approved, and
then the amount of the unsettled obligation was
deducted from the gratuity benefits of the employee."
We also agree with the Sandiganbayan (although the
Sandiganbayan did not say it) that although the
petitioner did not act with evident bad faith, he acted
with bad faith nevertheless, for which he should
respond for damages.
The records show that the office practice indeed in the
Philippine Coconut Authority was to clear the
employee (retiree) and deduct his accountabilities from
his gratuity benefits. There seems to be no debate about
the existence of this practice (the petitioner admitted it
later on) and in fact, he cleared three employees on the
condition that their obligations should be deducted
from their benefits. We quote:
Confronted with these evidence (sic),
Atty. Llorente conceded, albeit
grudgingly, the existence of the
practice by the accounting division of
not complying with Condition (a).
He, however, claimed that he learned
of the practice only during the trial of
the case and that he must have
inadvertently approved the
clearances of Mrs. Perez, Mr.
Azucena, and possibly others who
were similarly situated (TSN, March
9/88,pp. 4-5). This the evidence
belies. First, he himself testified that
when the clearance of Mr. Curio was
presented to him in December 1981, it
already bore the signature of Mrs.
Sotto of the accounting division and
the notation set opposite her name
about the outstanding
accountabilities of Mr. Curio; but he
(Atty. Llorente) significantly did not
ask her why she signed the clearance
(TSN, Nov. 24/87, pp. 24-25). Second,
in that month, Atty. Llorente
approved Mrs. Perez's and Mr.
Azucena's vouchers showing that hey
has pending obligations to the GSIS
and the UCPB, which were being
deducted from their gratuity benefits.
Attached to those vouchers were the
clearances as supporting documents
(Exhs. M-2 and N-1; TSN, Dec. 7/87,
pp. 13,23). And third, in the same
month, Atty. Llorente was already
aware of the cae of Mrs. Javier whose
clearance and voucher were,
according to him, preciselywithheld
because of her unsettled
accountability for the cash advances
of P92,000.00, but here later on given
due course; and her gratuity benefits
released on November 16, 1981,
minus that amount (TSN, Nov.
24/87, pp. 31-32; Exhs. L, L-1, L-2 and
L-3).
The cash advances of P92,000.00 were
the primary obligation of Mrs. Javier,
since they were secured through her
and in her name from the UCPB. That
was why they were charged to and
deducted from, her gratuity benefits.
Consequently, as early as that date
and in so far as the PCA and the
UCPB were concerned, the
362
 accountability was already fully paid.
The assumption of residual liability
by Mr. Curio for the cash advances
on November 26, 1981, was a matter
between him and Mrs. Javier (Exhs. 2
and 2-A).
The general rule is that this Court is bound by the
findings of fact of the Sandiganbayan.
As we said, the acts of the petitioner were legal (that is,
pursuant to procedures), as he insists in this petition,
yet it does not follow, as we said, that his acts were
done in good faith. For emphasis, he had no valid
reason to "go legal" all of a sudden with respect to Mr.
Curio, since he had cleared three employees who, as the
Sandiganbayan found, "were all similarly
circumstanced in that they all had pending obligations
when, their clearances were filed for consideration,
warranting similar official action."
The Court is convinced that the petitioner had unjustly
discriminated against Mr. Curio.
It is no defense that the petitioner was motivated by no
ill-will (a grudge, according to the Sandiganbayan),
since the facts speak for themselves. It is no defense
either that he was, after all, complying merely with
legal procedures since, as we indicated, he was not as
strict with respect to the three retiring other employees.
There can be no other logical conclusion that he was
acting unfairly, no more, no less, to Mr. Curio.
It is the essence of Article 19 of the Civil Code, under
which the petitioner was made to pay damages,
together with Article 27, that the performance of duty
be done with justice and good faith. In the case of
Velayo vs. Shell Co. of the Philippines, we held the
defendant liable under Article 19 for disposing of its
property a perfectly legal act in order to escape the
reach of a creditor. In two fairly more recent cases,
Sevilla vs. Court of Appeals and Valenzuela vs. Court of
Appeals, we held that a principal is liable under Article
19 in terminating the agency, again, a legal act, when
terminating the agency would deprive the agent of his
legitimate business.
We believe that the petitioner is liable under Article 19.
The Court finds the award of P90,000.00 to be justified
bv Article 2202 of the Civil Code, which holds the
defendant liable for all "natural and probable" damages.
Hennenegildo Cunct presented evidence that as a
consequence of the petitioner's refusal to clear him, he
failed to land a job at the Philippine Cotton Authority
and Philippine First Marketing Authority. He also
testified that a job in either office would have earned
him salary of P2,500.00 a month, or P150,000.00 in five
years. Deducting his probable expenses of reasonably
about P1,000.00 a month or P60,000.00 in five years, the
petitioner owes him a total actual damages of
P90,000.00
363
WHEREFORE, premises considered, the Petition is
DENIED. No pronouncement as to costs.
IT IS SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
HEIRS OF PURISIMA NALA V. CABANSAG,
G.R. No. 161188, 13 June 2008.
AUSTRIA-MARTINEZ, J.:
This is a petition for review under Rule 45 of the Rules
of Court assailing the Court of Appeals (CA) Decision
dated December 19, 2002 and Resolution dated October
28, 2003, dismissing petitioners' appeal and affirming
with modification the Regional Trial Court (RTC)
Decision dated August 10, 1994 rendered in Civil Case
No. Q-91-10541.
The facts of the case are as follows:
Artemio Cabansag (respondent) filed Civil Case No. Q-
91-10541 for damages in October 1991. According to
respondent, he bought a 50-square meter property from
spouses Eugenio Gomez, Jr. and Felisa Duyan Gomez
on July 23, 1990. Said property is part of a 400-square
meter lot registered in the name of the Gomez spouses.
In October 1991, he received a demand letter from Atty.
Alexander del Prado (Atty. Del Prado), in behalf of
Purisima Nala (Nala), asking for the payment of rentals
from 1987 to 1991 until he leaves the premises, as said
property is owned by Nala, failing which criminal and
civil actions will be filed against him. Another demand
letter was sent on May 14, 1991. Because of such
demands, respondent suffered damages and was
constrained to file the case against Nala and Atty. Del
Prado.
Atty. Del Prado claimed that he sent the demand letters
in good faith and that he was merely acting in behalf of
his client, Nala, who disputed respondent's claim of
ownership. Nala alleged that said property is part of an
800-square meter property owned by her late husband,
Eulogio Duyan, which was subsequently divided into
two parts. The 400-square meter property was
conveyed to spouses Gomez in a fictitious deed of sale,
with the agreement that it will be merely held by them
in trust for the Duyan's children. Said property is
covered by Transfer Certificate of Title (TCT) No.
281115 in the name of spouses Gomez. Nala also
claimed that respondent is only renting the property
which he occupies.
After trial, the RTC of Quezon City, Branch 93,
rendered its Decision on August 10, 1994, in favor of
respondent. The dispositive portion of the Decision
provides:
 xxx xxx xxx
Nala and Atty. Del Prado appealed to the CA. The
herein assailed CA Decision dated December 19, 2002
affirmed the RTC Decision with modification, thus:
xxx xxx xxx
In affirming the RTC Decision, the CA took note of the
Decision dated September 5, 1994 rendered by the RTC
of Quezon City, Branch 80, dismissing Civil Case No.
91-8821, an action for reconveyance of real property
and cancellation of TCT No. 281115 with damages, filed
by Nala against spouses Gomez.
xxx xxx xxx
Petitioners argue that their predecessor-in-interest had
every right to protect and assert her interests over the
property. Nala had no knowledge that the property
was sold by spouses Gomez to respondent when the
demand letters were sent. What she was aware of was
the fact that spouses Gomez were managing the rentals
on the property by virtue of the implied trust created
between them and Eulogio Duyan. When spouses
Gomez failed to remit the rentals and claimed
ownership of the property, it was then that Nala
decided to procure the services of legal counsel to
protect their rights over the property.
Petitioners also contend that it was error for the CA to
take note of the RTC Decision in Civil Case No. 91-8821
without further noting that the CA had already
reversed and set aside said RTC Decision and ordered
reconveyance of the property to Nala and her children
in a Decision dated March 8, 2000 rendered in CA-G.R.
CV No. 49163. Petitioners also argue that respondent
did not substantiate his claim for damages.
Preliminarily, the Court notes that both the RTC and
the CA failed to indicate the particular provision of law
under which it held petitioners liable for damages.
Nevertheless, based on the allegations in respondent's
complaint, it may be gathered that the basis for his
claim for damages is Article 19 of the Civil Code, which
provides:
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.
The foregoing provision sets the standards which may
be observed not only in the exercise of one’s rights but
also in the performance of one’s duties. When a right is
exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible. But a right,
though by itself legal because recognized or granted by
law as such, may nevertheless become the source of
some illegality. A person should be protected only
when he acts in the legitimate exercise of his right; that
is, when he acts with prudence and in good faith, but
not when he acts with negligence or abuse. There is an
abuse of right when it is exercised only for the purpose
of prejudicing or injuring another. The exercise of a
right must be in accordance with the purpose for which
it was established, and must not be excessive or unduly
harsh; there must be no intention to injure another.
In order to be liable for damages under the abuse of
rights principle, the following requisites must concur:
(a) the existence of a legal right or duty; (b) which is
exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.
It should be stressed that malice or bad faith is at the
core of Article 19 of the Civil Code. Good faith is
presumed, and he who alleges bad faith has the duty to
prove the same. Bad faith, on the other hand, does not
simply connote bad judgment to simple negligence,
dishonest purpose or some moral obloquy and
conscious doing of a wrong, or a breach of known duty
due to some motives or interest or ill will that partakes
of the nature of fraud. Malice connotes ill will or spite
and speaks not in response to duty. It implies an
intention to do ulterior and unjustifiable harm.
In the present case, there is nothing on record which
will prove that Nala and her counsel, Atty. Del Prado,
acted in bad faith or malice in sending the demand
letters to respondent. In the first place, there was
ground for Nala's actions since she believed that the
property was owned by her husband Eulogio Duyan
and that respondent was illegally occupying the same.
She had no knowledge that spouses Gomez violated the
trust imposed on them by Eulogio and surreptitiously
sold a portion of the property to respondent. It was
only after respondent filed the case for damages against
Nala that she learned of such sale. The bare fact that
respondent claims ownership over the property does
not give rise to the conclusion that the sending of the
demand letters by Nala was done in bad faith. Absent
any evidence presented by respondent, bad faith or
malice could not be attributed to petitioner since Nala
was only trying to protect their interests over the
property.
Moreover, respondent failed to show that Nala and
Atty. Del Prado's acts were done with the sole intention
of prejudicing and injuring him. It may be true that
respondent suffered mental anguish, serious anxiety
and sleepless nights when he received the demand
letters; however, there is a material distinction between
damages and injury. Injury is the legal invasion of a
legal right while damage is the hurt, loss or harm which
results from the injury. Thus, there can be damage
without injury in those instances in which the loss or
harm was not the result of a violation of a legal duty. In
such cases, the consequences must be borne by the
injured person alone; the law affords no remedy for
damages resulting from an act which does not amount
364
to a legal injury or wrong. These situations are often
called damnum absque injuria.
Nala was acting well within her rights when she
instructed Atty. Del Prado to send the demand letters.
She had to take all the necessary legal steps to enforce
her legal/equitable rights over the property occupied
by respondent. One who makes use of his own legal
right does no injury. Thus, whatever damages are
suffered by respondent should be borne solely by him.
Nala's acts in protecting her rights over the property
find further solid ground in the fact that the property
has already been ordered reconveyed to her and her
heirs. In its Decision dated March 8, 2000 in CA-G.R.
CV No. 49163, the CA reversed and set aside the RTC's
Decision and ordered the reconveyance of the property
to petitioners, and TCT No. 281115 was declared
canceled. Said CA Decision was affirmed by this Court
in its Decision dated March 18, 2005 in G.R. No. 144148,
which became final and executory on July 27, 2005.
WHEREFORE, the petition is GRANTED. The Decision
dated December 19, 2002 and Resolution dated October
28, 2003 rendered by the Court of Appeals in CA-G.R.
CV No. 48580 are NULLIFIED. Civil Case No. Q-91-
10541 is DISMISSED for lack of merit.
Costs against respondent.
SO ORDERED.
b. Acts or omissions contrary to morals
ARTICLE 20. Every person who, contrary to law,
wilfully or negligently causes damage to another,
shall indemnify the latter for the same.
ARTICLE 21. Any person who wilfully 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.
FRANCISCO HERMOSISIMA, vs.
COURT OF APPEALS, ET AL.,
G.R. No. L-14628, 30 September 1960.
CONCEPCION, J.:
An appeal by certiorari, taken by petitioner Francisco
Hermosisima, from a decision of Court of Appeals
modifying that of the Court of First Instance of Cebu.
On October 4, 1954, Soledad Cagigas, hereinafter
referred to as complaint, filed with said of her child,
Chris Hermosisima, as natural child and moral
damages for alleged breach of promise. Petitioner
admitted the paternity of child and expressed
willingness to support the latter, but denied having
ever promised to marry the complainant. Upon her
motion, said court ordered petitioner, on October 27,
1954, to pay, by way of alimony pendente lite, P50.00 a
365
month, which was, on February 16, 1955, reduced to
P30.00 a month. In due course, later on, said court
rendered a decision the dispositive part of which reads:
xxx xxx xxx
On appeal taken by petitioner, the Court of Appeals
affirmed this decision, except as to the actual and
compensatory damages and the moral damages, which
were increased to P5,614.25 and P7,000.00, respectively.
The main issue before us is whether moral damages are
recoverable, under our laws, for breach of promise to
marry. The pertinent facts are:
Complainant Soledad Cagigas, was born in July 1917.
Since 1950, Soledad then a teacher in the Sibonga
Provincial High School in Cebu, and petitioner, who
was almost ten (10) years younger than she, used to go
around together and were regarded as engaged,
although he had made no promise of marriage prior
thereto. In 1951, she gave up teaching and became a life
insurance underwriter in the City of Cebu, where
intimacy developed among her and the petitioner, since
one evening in 1953, when after coming from the
movies, they had sexual intercourse in his cabin on
board M/V "Esca o," to which he was then attached as
apprentice pilot. In February 1954, Soledad advised
petitioner that she was in the family way, whereupon
he promised to marry her. Their child, Chris
Hermosisima, was born on June 17, 1954, in a private
maternity and clinic. However, subsequently, or on July
24, 1954, defendant married one Romanita Perez.
Hence, the present action, which was commenced on or
about October 4, 1954.
Referring now to the issue above referred to, it will be
noted that the Civil Code of Spain permitted the
recovery of damages for breach to marry. Article 43 and
44 of said Code provides:
ART. 43. A mutual promise of
marriage shall not give rise to an
obligation to contract marriage. No
court shall entertain any complaint
by which the enforcement of such
promise is sought.
ART. 44. If the promise has been in a
public or private instrument by an
adult, or by a minor with the
concurrence of the person whose
consent is necessary for the
celebration of the marriage, or if the
banns have been published, the one
who without just cause refuses to
marry shall be obliged to reimburse
the other for the expenses which he
or she may have incurred by reason
of the promised marriage.
The action for reimbursement of expenses to which the
foregoing article refers must be brought within one
year, computed from the day of the refusal to celebrate
the marriage.
Inasmuch as these articles were never in force in the
Philippines, this Court ruled in De Jesus vs. Syquia (58
Phil., 866), that "the action for breach of promises to
marry has no standing in the civil law, apart from the
right to recover money or property advanced . . . upon
the faith of such promise". The Code Commission
charged with the drafting of the Proposed Civil Code of
the Philippines deem it best, however, to change the
law thereon. We quote from the report of the Code
Commission on said Proposed Civil Code:
Articles 43 and 44 the Civil Code of
1889 refer to the promise of marriage.
But these articles are not enforced in
the Philippines. The subject is
regulated in the Proposed Civil Code
not only as to the aspect treated of in
said articles but also in other
particulars. It is advisable to furnish
legislative solutions to some
questions that might arise relative to
betrothal. Among the provisions
proposed are: That authorizing the
adjudication of moral damages, in
case of breach of promise of
marriage, and that creating liability
for causing a marriage engagement to
be broken.
Accordingly, the following
provisions were inserted in said
Proposed Civil Code, under Chapter
I, Title III, Book I thereof:
Art. 56. A mutual promise to marry
may be made expressly or impliedly.
Art. 57. An engagement to be married
must be agreed directly by the future
spouses.
Art. 58. A contract for a future
marriage cannot, without the consent
of the parent or guardian, be entered
into by a male between the ages of
sixteen and twenty years or by a
female between the ages of sixteen
and eighteen years. Without such
consent of the parents or guardian,
the engagement to marry cannot be
the basis of a civil action for damages
in case of breach of the promise.
Art. 59. A promise to marry when
made by a female under the age of
fourteen years is not civilly
actionable, even though approved by
the parent or guardian.
Art. 60. In cases referred to in the
proceeding articles, the criminal and
civil responsibility of a male for
seduction shall not be affected.
Art. 61. No action for specific
performance of a mutual promise to
marry may be brought.
Art. 62. An action for breach of
promise to marry may be brought by
the aggrieved party even though a
minor without the assistance of his
parent or guardian. Should the minor
refuse to bring suit, the parent or
guardian may institute the action.
Art. 63. Damages for breach of
promise to marry shall include not
only material and pecuniary losses
but also compensation for mental and
moral suffering.
Art. 64. Any person, other than a
rival, the parents, guardians and
grandparents, of the affianced
parties, who cause a marriage
engagement to be broken shall be
liable for damages, both material and
moral, to the engaged person who is
rejected.
Art. 65. In case of breach of promise
to marry, the party breaking the
engagement shall be obliged to return
what he or she has received from the
other as gift on account of the
promise of the marriage.
These article were, however, eliminated in Congress.
The reason therefor are set forth in the report of the
corresponding Senate Committee, from which we
quote:
The elimination of this Chapter is
proposed. That breach of promise to
marry is not actionable has been
definitely decide in the case of De
Jesus vs. Syquia, 58 Phil., 866. The
history of breach of promise suit in
the United States and in England has
shown that no other action lends
itself more readily to abuse by
designing women and unscrupulous
men. It is this experience which has
led to the abolition of the rights of
action in the so-called Balm suit in
many of the American States.
xxx xxx xxx
366
 The Commission perhaps though that
it has followed the more progression
trend in legislation when it provided
for breach of promise to marry suits.
But it is clear that the creation of such
causes of action at a time when so
many States, in consequence of years
of experience are doing away with
them, may well prove to be a step in
the wrong direction. (Congressional
Record, Vol. IV, No. 79, Thursday,
May 19, 1949, p. 2352.)
The views thus expressed were accepted by both
houses of Congress. In the light of the clear and
manifest intent of our law making body not to sanction
actions for breach of promise to marry, the award of
moral damages made by the lower courts is,
accordingly, untenable. The Court of Appeals said
award:
Moreover, it appearing that because
of defendant-appellant's seduction
power, plaintiff-appellee,
overwhelmed by her love for him
finally yielded to his sexual desires in
spite of her age and self-control, she
being a woman after all, we hold that
said defendant-appellant is liable for
seduction and, therefore, moral
damages may be recovered from him
under the provision of Article 2219,
paragraph 3, of the new Civil Code.
Apart from the fact that the general tenor of said Article
2219, particularly the paragraphs preceding and those
following the one cited by the Court of Appeals, and
the language used in said paragraph strongly indicates
that the "seduction" therein contemplated is the crime
punished as such in Article as such in Article 337 and
338 of the Revised Penal Code, which admittedly does
not exist in the present case, we find ourselves unable
to say that petitioner is morally guilty of seduction, not
only because he is approximately ten (10) years
younger than the complainant who around thirty-six
(36) years of age, and as highly enlightened as a former
high school teacher and a life insurance agent are
supposed to be when she became intimate with
petitioner, then a mere apprentice pilot, but, also,
because, the court of first instance found that,
complainant "surrendered herself" to petitioner
because, "overwhelmed by her love" for him, she
"wanted to bind" "by having a fruit of their engagement
even before they had the benefit of clergy."
The court of first instance sentenced petitioner to pay
the following: (1) a monthly pension of P30.00 for the
support of the child: (2) P4,500, representing the income
that complainant had allegedly failed to earn during
her pregnancy and shortly after the birth of the child, as
actual and compensation damages; (3) P5,000, as moral
damages; and (4) P500.00, as attorney's fees. The Court
367
of Appeals added to the second item the sum of
P1,114.25 consisting of P144.20, for hospitalization
and medical attendance, in connection with the
parturiation, and the balance representing expenses
incurred to support the child and increased the moral
damages to P7,000.00.
With the elimination of this award for damages, the
decision of the Court of Appeals is hereby affirmed,
therefore, in all other respects, without special
pronouncement as to cost in this instance. It is so
ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo,
Labrador, Reyes, J.B.L., Barrera, Gutierrez David,
Paredes and Dizon, JJ., concur.
BEATRIZ P. WASSMER, vs. FRANCISCO X. VELEZ
G.R. No. L-20089, 26 December 1964, 12 SCRA 648
BENGZON, J.P., J.:
The facts that culminated in this case started with
dreams and hopes, followed by appropriate planning
and serious endeavors, but terminated in frustration
and, what is worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following
their mutual promise of love, decided to get married
and set September 4, 1954 as the big day. On September
2, 1954 Velez left this note for his bride-to-be:
Dear Bet
Will have to postpone wedding. My
mother opposes it. Am leaving on the
Convair today.
Please do not ask too many people
about the reason why. That would
only create a scandal.
Paquing
But the next day, September 3, he sent her the following
telegram:
NOTHING CHANGED REST
ASSURED RETURNING VERY
SOON APOLOGIZE MAMA PAPA
LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from
again.
Sued by Beatriz for damages, Velez filed no answer and
was declared in default. Plaintiff adduced evidence
before the clerk of court as commissioner, and on April
29, 1955, judgment was rendered ordering defendant to
pay plaintiff P2,000.00 as actual damages; P25,000.00 as
moral and exemplary damages; P2,500.00 as attorney's
fees; and the costs.
xxx xxx xxx
In support of his "motion for new trial and
reconsideration," defendant asserts that the judgment is
contrary to law. The reason given is that "there is no
provision of the Civil Code authorizing" an action for
breach of promise to marry. Indeed, our ruling in
Hermosisima vs. Court of Appeals (L-14628, Sept. 30,
1960), as reiterated in Estopa vs. Biansay (L-14733, Sept.
30, 1960), is that "mere breach of a promise to marry" is
not an actionable wrong. We pointed out that Congress
deliberately eliminated from the draft of the new Civil
Code the provisions that would have it so.
It must not be overlooked, however, that the extent to
which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code
provides that "any person who wilfully causes loss or
injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the
latter for the damage."
The record reveals that on August 23, 1954 plaintiff and
defendant applied for a license to contract marriage,
which was subsequently issued (Exhs. A, A-1). Their
wedding was set for September 4, 1954. Invitations
were printed and distributed to relatives, friends and
acquaintances (Tsn., 5; Exh. C). The bride-to-be's
trousseau, party drsrses and other apparel for the
important occasion were purchased (Tsn., 7-8). Dresses
for the maid of honor and the flower girl were
prepared. A matrimonial bed, with accessories, was
bought. Bridal showers were given and gifts received
(Tsn., 6; Exh. E). And then, with but two days before the
wedding, defendant, who was then 28 years old,:
simply left a note for plaintiff stating: "Will have to
postpone wedding. My mother opposes it ... " He
enplaned to his home city in Mindanao, and the next
day, the day before the wedding, he wired plaintiff:
"Nothing changed rest assured returning soon." But he
never returned and was never heard from again.
Surely this is not a case of mere breach of promise to
marry. As stated, mere breach of promise to marry is
not an actionable wrong. But to formally set a wedding
and go through all the above-described preparation and
publicity, only to walk out of it when the matrimony is
about to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good customs for
which defendant must be held answerable in damages
in accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the
damages awarded were excessive. No question is raised
as to the award of actual damages. What defendant
would really assert hereunder is that the award of
moral and exemplary damages, in the amount of
P25,000.00, should be totally eliminated.
Per express provision of Article 2219 (10) of the New
Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not
be adjudged against him because under Article 2232 of
the New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." The argument is
devoid of merit as under the above-narrated
circumstances of this case defendant clearly acted in a
"wanton ... , reckless [and] oppressive manner." This
Court's opinion, however, is that considering the
particular circumstances of this case, P15,000.00 as
moral and exemplary damages is deemed to be a
reasonable award.
PREMISES CONSIDERED, with the above-indicated
modification, the lower court's judgment is hereby
affirmed, with costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera,
Paredes, Dizon, Regala, Makalintal, and Zaldivar, JJ.,
concur.
GASHEM SHOOKAT BAKSH vs.
COURT OF APPEALS, ET AL.
G.R. No. 97336, 19 February 1993.
DAVIDE, JR., J.:
This is an appeal by certiorari under Rule 45 of the Rules
of Court seeking to review and set aside the Decision of
the respondent Court of Appeals in CA-G.R. CV No.
24256 which affirmed in toto the 16 October 1939
Decision of Branch 38 (Lingayen) of the Regional Trial
Court (RTC) of Pangasinan in Civil Case No. 16503.
Presented is the issue of whether or not damages may
be recovered for a breach of promise to marry on the
basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the
assistance of counsel, filed with the aforesaid trial court
a complaint for damages against the petitioner for the
alleged violation of their agreement to get married. She
alleges in said complaint that: she is twenty-two (22)
years old, single, Filipino and a pretty lass of good
moral character and reputation duly respected in her
community; petitioner, on the other hand, is an Iranian
citizen residing at the Lozano Apartments, Guilig,
Dagupan City, and is an exchange student taking a
medical course at the Lyceum Northwestern Colleges in
Dagupan City; before 20 August 1987, the latter courted
and proposed to marry her; she accepted his love on the
condition that they would get married; they therefore
agreed to get married after the end of the school
semester, which was in October of that year; petitioner
then visited the private respondent's parents in Bañaga,
Bugallon, Pangasinan to secure their approval to the
marriage; sometime in 20 August 1987, the petitioner
forced her to live with him in the Lozano Apartments;
368
she was a virgin before she began living with him; a
week before the filing of the complaint, petitioner's
attitude towards her started to change; he maltreated
and threatened to kill her; as a result of such
maltreatment, she sustained injuries; during a
confrontation with a representative of the barangay
captain of Guilig a day before the filing of the
complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore
and; the petitioner is already married to someone living
in Bacolod City. Private respondent then prayed for
judgment ordering the petitioner to pay her damages in
the amount of not less than P45,000.00, reimbursement
for actual expenses amounting to P600.00, attorney's
fees and costs, and granting her such other relief and
remedies as may be just and equitable. The complaint
was docketed as Civil Case No. 16503.
In his Answer with Counterclaim, petitioner admitted
only the personal circumstances of the parties as
averred in the complaint and denied the rest of the
allegations either for lack of knowledge or information
sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special
and Affirmative Defenses. He thus claimed that he
never proposed marriage to or agreed to be married
with the private respondent; he neither sought the
consent and approval of her parents nor forced her to
live in his apartment; he did not maltreat her, but only
told her to stop coming to his place because he
discovered that she had deceived him by stealing his
money and passport; and finally, no confrontation took
place with a representative of the barangay captain.
Insisting, in his Counterclaim, that the complaint is
baseless and unfounded and that as a result thereof, he
was unnecessarily dragged into court and compelled to
incur expenses, and has suffered mental anxiety and a
besmirched reputation, he prayed for an award of
P5,000.00 for miscellaneous expenses and P25,000.00 as
moral damages.
xxx xxx xxx
After trial on the merits, the lower court, applying
Article 21 of the Civil Code, rendered on 16 October
1989 a decision 5 favoring the private respondent. The
petitioner was thus ordered to pay the latter damages
and attorney's fees; the dispositive portion of the
decision reads:
xxx xxx xxx
The decision is anchored on the trial court's findings
and conclusions that (a) petitioner and private
respondent were lovers, (b) private respondent is not a
woman of loose morals or questionable virtue who
readily submits to sexual advances, (c) petitioner,
through machinations, deceit and false pretenses,
promised to marry private respondent, d) because of
his persuasive promise to marry her, she allowed
herself to be deflowered by him, (e) by reason of that
deceitful promise, private respondent and her parents
369
in accordance with Filipino customs and traditions
made some preparations for the wedding that was to be
held at the end of October 1987 by looking for pigs and
chickens, inviting friends and relatives and contracting
sponsors, (f) petitioner did not fulfill his promise to
marry her and (g) such acts of the petitioner, who is a
foreigner and who has abused Philippine hospitality,
have offended our sense of morality, good customs,
culture and traditions. The trial court gave full credit to
the private respondent's testimony because, inter alia,
she would not have had the temerity and courage to
come to court and expose her honor and reputation to
public scrutiny and ridicule if her claim was false.
The above findings and conclusions were culled from
the detailed summary of the evidence for the private
respondent in the foregoing decision, digested by the
respondent Court as follows:
According to plaintiff, who claimed
that she was a virgin at the time and
that she never had a boyfriend before,
defendant started courting her just a
few days after they first met. He later
proposed marriage to her several
times and she accepted his love as
well as his proposal of marriage on
August 20, 1987, on which same day
he went with her to her hometown of
Bañaga, Bugallon, Pangasinan, as he
wanted to meet her parents and
inform them of their relationship and
their intention to get married. The
photographs Exhs. "A" to "E" (and
their submarkings) of defendant with
members of plaintiff's family or with
plaintiff, were taken that day. Also on
that occasion, defendant told
plaintiffs parents and brothers and
sisters that he intended to marry her
during the semestral break in
October, 1987, and because plaintiff's
parents thought he was good and
trusted him, they agreed to his
proposal for him to marry their
daughter, and they likewise allowed
him to stay in their house and sleep
with plaintiff during the few days
that they were in Bugallon. When
plaintiff and defendant later returned
to Dagupan City, they continued to
live together in defendant's
apartment. However, in the early
days of October, 1987, defendant
would tie plaintiff's hands and feet
while he went to school, and he even
gave her medicine at 4 o'clock in the
morning that made her sleep the
whole day and night until the
following day. As a result of this live-
in relationship, plaintiff became
pregnant, but defendant gave her
 some medicine to abort the fetus. Still
plaintiff continued to live with
defendant and kept reminding him of
his promise to marry her until he told
her that he could not do so because
he was already married to a girl in
Bacolod City. That was the time
plaintiff left defendant, went home to
her parents, and thereafter consulted
a lawyer who accompanied her to the
barangay captain in Dagupan City.
Plaintiff, her lawyer, her godmother,
and a barangay tanod sent by the
barangay captain went to talk to
defendant to still convince him to
marry plaintiff, but defendant
insisted that he could not do so
because he was already married to a
girl in Bacolod City, although the
truth, as stipulated by the parties at
the pre-trial, is that defendant is still
single.
Plaintiff's father, a tricycle driver, also
claimed that after defendant had
informed them of his desire to marry
Marilou, he already looked for
sponsors for the wedding, started
preparing for the reception by
looking for pigs and chickens, and
even already invited many relatives
and friends to the forthcoming
wedding.
Petitioner appealed the trial court's decision to the
respondent Court of Appeals which docketed the case
as CA-G.R. CV No. 24256. In his Brief, 9 he contended
that the trial court erred (a) in not dismissing the case
for lack of factual and legal basis and (b) in ordering
him to pay moral damages, attorney's fees, litigation
expenses and costs.
On 18 February 1991, respondent Court promulgated
the challenged decision 10 affirming in toto the trial
court's ruling of 16 October 1989. In sustaining the trial
court's findings of fact, respondent Court made the
following analysis:
xxx xxx xxx
Unfazed by his second defeat, petitioner filed the
instant petition on 26 March 1991; he raises therein the
single issue of whether or not Article 21 of the Civil
Code applies to the case at bar.
It is petitioner's thesis that said Article 21 is not
applicable because he had not committed any moral
wrong or injury or violated any good custom or public
policy; he has not professed love or proposed marriage
to the private respondent; and he has never maltreated
her. He criticizes the trial court for liberally invoking
Filipino customs, traditions and culture, and ignoring
the fact that since he is a foreigner, he is not conversant
with such Filipino customs, traditions and culture. As
an Iranian Moslem, he is not familiar with Catholic and
Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the
same is excusable or tolerable because of his Moslem
upbringing; he then alludes to the Muslim Code which
purportedly allows a Muslim to take four (4) wives and
concludes that on the basis thereof, the trial court erred
in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now
his legal wife as their marriage had been solemnized in
civil ceremonies in the Iranian Embassy. As to his
unlawful cohabitation with the private respondent,
petitioner claims that even if responsibility could be
pinned on him for the live-in relationship, the private
respondent should also be faulted for consenting to an
illicit arrangement. Finally, petitioner asseverates that
even if it was to be assumed arguendo that he had
professed his love to the private respondent and had
also promised to marry her, such acts would not be
actionable in view of the special circumstances of the
case. The mere breach of promise is not actionable.
On 26 August 1991, after the private respondent had
filed her Comment to the petition and the petitioner
had filed his Reply thereto, this Court gave due course
to the petition and required the parties to submit their
respective Memoranda, which they subsequently
complied with.
As may be gleaned from the foregoing summation of
the petitioner's arguments in support of his thesis, it is
clear that questions of fact, which boil down to the issue
of the credibility of witnesses, are also raised. It is the
rule in this jurisdiction that appellate courts will not
disturb the trial court's findings as to the credibility of
witnesses, the latter court having heard the witnesses
and having had the opportunity to observe closely their
deportment and manner of testifying, unless the trial
court had plainly overlooked facts of substance or value
which, if considered, might affect the result of the case.
Petitioner has miserably failed to convince Us that both
the appellate and trial courts had overlooked any fact of
substance or values which could alter the result of the
case.
xxx xxx xxx
And now to the legal issue.
The existing rule is that a breach of promise to marry
per se is not an actionable wrong. Congress
deliberately eliminated from the draft of the New Civil
Code the provisions that would have made it so. The
reason therefor is set forth in the report of the Senate
Committees on the Proposed Civil Code, from which
We quote:
“The elimination of this chapter is
proposed. That breach of promise to
370
 marry is not actionable has been
definitely decided in the case of De
Jesus vs. Syquia. The history of breach
of promise suits in the United States
and in England has shown that no
other action lends itself more readily
to abuse by designing women and
unscrupulous men. It is this
experience which has led to the
abolition of rights of action in the so-
called Heart Balm suits in many of
the American states. . . .
This notwithstanding, the said Code contains a
provision, Article 21, which is designed to expand the
concept of torts or quasi-delict in this jurisdiction by
granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the
statute books.
As the Code Commission itself stated in its Report:
But the Code Commission had gone
farther than the sphere of wrongs
defined or determined by positive
law. Fully sensible that there are
countless gaps in the statutes, which
leave so many victims of moral
wrongs helpless, even though they
have actually suffered material and
moral injury, the Commission has
deemed it necessary, in the interest of
justice, to incorporate in the proposed
Civil Code the following rule:
Art. 23. Any person who
wilfully 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.
An example will illustrate the
purview of the foregoing norm: "A"
seduces the nineteen-year old
daughter of "X". A promise of
marriage either has not been made, or
can not be proved. The girl becomes
pregnant. Under the present laws,
there is no crime, as the girl is above
nineteen years of age. Neither can
any civil action for breach of promise
of marriage be filed. Therefore,
though the grievous moral wrong has
been committed, and though the girl
and family have suffered incalculable
moral damage, she and her parents
cannot bring action for damages. But
under the proposed article, she and
371
her parents would have such a right
of action.
Thus at one stroke, the legislator, if
the forgoing rule is approved, would
vouchsafe adequate legal remedy for
that untold number of moral wrongs
which it is impossible for human
foresight to provide for specifically in
the statutes.
Article 2176 of the Civil Code, which
defines a quasi-delict thus:
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.
is limited to negligent acts or
omissions and excludes the notion of
willfulness or intent. Quasi-delict,
known in Spanish legal treatises as
culpa aquiliana, is a civil law concept
while torts is an Anglo-American or
common law concept. Torts is much
broader than culpa aquiliana because it
includes not only negligence, but
international criminal acts as well
such as assault and battery, false
imprisonment and deceit. In the
general scheme of the Philippine
legal system envisioned by the
Commission responsible for drafting
the New Civil Code, intentional and
malicious acts, with certain
exceptions, are to be governed by the
Revised Penal Code while negligent
acts or omissions are to be covered by
Article 2176 of the Civil Code. 22 In
between these opposite spectrums are
injurious acts which, in the absence of
Article 21, would have been beyond
redress. Thus, Article 21 fills that
vacuum. It is even postulated that
together with Articles 19 and 20 of
the Civil Code, Article 21 has greatly
broadened the scope of the law on
civil wrongs; it has become much
more supple and adaptable than the
Anglo-American law on torts.
In the light of the above laudable purpose of Article 21,
We are of the opinion, and so hold, that where a man's
promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes because We were not convinced that such seduction
the proximate cause of the giving of herself unto him in existed. The following enlightening disquisition and
a sexual congress, proof that he had, in reality, no conclusion were made in the said case:
intention of marrying her and that the promise was
only a subtle scheme or deceptive device to entice or The Court of Appeals seem to have
inveigle her to accept him and to obtain her consent to overlooked that the example set forth
the sexual act, could justify the award of damages in the Code Commission's
pursuant to Article 21 not because of such promise to memorandum refers to a tort upon a
marry but because of the fraud and deceit behind it and minor who had been seduced. The
the willful injury to her honor and reputation which essential feature is seduction, that in
followed thereafter. It is essential, however, that such law is more than mere sexual
injury should have been committed in a manner intercourse, or a breach of a promise
contrary to morals, good customs or public policy. of marriage; it connotes essentially
the idea of deceit, enticement,
In the instant case, respondent Court found that it was superior power or abuse of
the petitioner's "fraudulent and deceptive protestations confidence on the part of the seducer
of love for and promise to marry plaintiff that made her to which the woman has yielded
surrender her virtue and womanhood to him and to (U.S. vs. Buenaventura, 27 Phil. 121;
live with him on the honest and sincere belief that he U.S. vs. Arlante, 9 Phil. 595).
would keep said promise, and it was likewise these
fraud and deception on appellant's part that made It has been ruled in the Buenaventura
plaintiff's parents agree to their daughter's living-in case (supra) that
with him preparatory to their supposed marriage." In
short, the private respondent surrendered her virginity, To constitute seduction there
the cherished possession of every single Filipina, not must in all cases be some
because of lust but because of moral seduction the kind sufficient promise or
illustrated by the Code Commission in its example inducement and the woman
earlier adverted to. The petitioner could not be held must yield because of the
liable for criminal seduction punished under either promise or other inducement.
Article 337 or Article 338 of the Revised Penal Code If she consents merely from
because the private respondent was above eighteen (18) carnal lust and the intercourse
years of age at the time of the seduction. is from mutual desire, there is
no seduction (43 Cent. Dig. tit.
Prior decisions of this Court clearly suggest that Article Seduction, par. 56) She must be
21 may be applied in a breach of promise to marry induced to depart from the
where the woman is a victim of moral seduction. Thus, path of virtue by the use of
in Hermosisima vs. Court of Appeals, this Court denied some species of arts,
recovery of damages to the woman because: persuasions and wiles, which
are calculated to have and do
. . . we find ourselves unable to say have that effect, and which
that petitioner is morally guilty of result in her person to
seduction, not only because he is ultimately submitting her
approximately ten (10) years younger person to the sexual embraces
than the complainant who was of her seducer (27 Phil. 123).
around thirty-six (36) years of age,
and as highly enlightened as a former And in American Jurisprudence we
high school teacher and a life find:
insurance agent are supposed to be
when she became intimate with On the other hand, in an action by the
petitioner, then a mere apprentice woman, the enticement, persuasion
pilot, but, also, because the court of or deception is the essence of the
first instance found that, complainant injury; and a mere proof of
"surrendered herself" to petitioner intercourse is insufficient to warrant
because, "overwhelmed by her love" a recovery.
for him, she "wanted to bind" him by
having a fruit of their engagement Accordingly it is not seduction where
even before they had the benefit of the willingness arises out of sexual
clergy. desire of curiosity of the female, and
the defendant merely affords her the
In Tanjanco vs. Court of Appeals, while this Court needed opportunity for the
likewise hinted at possible recovery if there had been commission of the act. It has been
moral seduction, recovery was eventually denied emphasized that to allow a recovery

372
 in all such cases would tend to the
demoralization of the female sex, and
would be a reward for unchastity by
which a class of adventuresses would
be swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan
allegations, the fact stand out that for
one whole year, from 1958 to 1959,
the plaintiff-appellee, a woman of
adult age, maintain intimate sexual
relations with appellant, with
repeated acts of intercourse. Such
conduct is incompatible with the idea
of seduction. Plainly there is here
voluntariness and mutual passion; for
had the appellant been deceived, had
she surrendered exclusively because
of the deceit, artful persuasions and
wiles of the defendant, she would not
have again yielded to his embraces,
much less for one year, without
exacting early fulfillment of the
alleged promises of marriage, and
would have cut short all sexual
relations upon finding that defendant
did not intend to fulfill his defendant
did not intend to fulfill his promise.
Hence, we conclude that no case is
made under article 21 of the Civil
Code, and no other cause of action
being alleged, no error was
committed by the Court of First
Instance in dismissing the complaint.
In his annotations on the Civil Code, Associate Justice
Edgardo L. Paras, who recently retired from this Court,
opined that in a breach of promise to marry where there
had been carnal knowledge, moral damages may be
recovered:
. . . if there be criminal or moral
seduction, but not if the intercourse
was due to mutual lust. (Hermosisima
vs. Court of Appeals, L-14628, Sept. 30,
1960; Estopa vs. Piansay, Jr., L-14733,
Sept. 30, 1960; Batarra vs. Marcos, 7
Phil. 56 (sic); Beatriz Galang vs. Court
of Appeals, et al., L-17248, Jan. 29,
1962). (In other words, if the CAUSE
be the promise to marry, and the
EFFECT be the carnal knowledge,
there is a chance that there was
criminal or moral seduction, hence
recovery of moral damages will
prosper. If it be the other way
around, there can be no recovery of
moral damages, because here mutual
lust has intervened). . . .
373
together with "ACTUAL damages,
should there be any, such as the
expenses for the wedding
presentations (See Domalagon v.
Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino is also of the same
persuasion:
It is submitted that the rule in Batarra
vs. Marcos, still subsists,
notwithstanding the incorporation of
the present article 31 in the Code. The
example given by the Code
Commission is correct, if there was
seduction, not necessarily in the legal
sense, but in the vulgar sense of
deception. But when the sexual act is
accomplished without any deceit or
qualifying circumstance of abuse of
authority or influence, but the
woman, already of age, has
knowingly given herself to a man, it
cannot be said that there is an injury
which can be the basis for indemnity.
But so long as there is fraud, which is
characterized by willfulness (sic), the
action lies. The court, however, must
weigh the degree of fraud, if it is
sufficient to deceive the woman
under the circumstances, because an
act which would deceive a girl
sixteen years of age may not
constitute deceit as to an experienced
woman thirty years of age. But so
long as there is a wrongful act and a
resulting injury, there should be civil
liability, even if the act is not
punishable under the criminal law
and there should have been an
acquittal or dismissal of the criminal
case for that reason.
We are unable to agree with the petitioner's alternative
proposition to the effect that granting, for argument's
sake, that he did promise to marry the private
respondent, the latter is nevertheless also at fault.
According to him, both parties are in pari delicto; hence,
pursuant to Article 1412(1) of the Civil Code and the
doctrine laid down in Batarra vs. Marcos, the private
respondent cannot recover damages from the
petitioner. The latter even goes as far as stating that if
the private respondent had "sustained any injury or
damage in their relationship, it is primarily because of
her own doing, for:
. . . She is also interested in the
petitioner as the latter will become a
doctor sooner or later. Take notice
that she is a plain high school
graduate and a mere employee . . .
 (Annex "C") or a waitress (TSN, p. 51,
January 25, 1988) in a luncheonette
and without doubt, is in need of a
man who can give her economic
security. Her family is in dire need of
financial assistance. (TSN, pp. 51-53,
May 18, 1988). And this predicament
prompted her to accept a proposition
that may have been offered by the
petitioner.
These statements reveal the true character and motive
of the petitioner. It is clear that he harbors a
condescending, if not sarcastic, regard for the private
respondent on account of the latter's ignoble birth,
inferior educational background, poverty and, as
perceived by him, dishonorable employment.
Obviously then, from the very beginning, he was not at
all moved by good faith and an honest motive.
Marrying with a woman so circumstances could not
have even remotely occurred to him. Thus, his
profession of love and promise to marry were empty
words directly intended to fool, dupe, entice, beguile
and deceive the poor woman into believing that indeed,
he loved her and would want her to be his life's partner.
His was nothing but pure lust which he wanted
satisfied by a Filipina who honestly believed that by
accepting his proffer of love and proposal of marriage,
she would be able to enjoy a life of ease and security.
Petitioner clearly violated the Filipino's concept of
morality and brazenly defied the traditional respect
Filipinos have for their women. It can even be said that
the petitioner committed such deplorable acts in blatant
disregard of Article 19 of the Civil Code which directs
every person to act with justice, give everyone his due
and observe honesty and good faith in the exercise of
his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of
our laws, customs and traditions.
The pari delicto rule does not apply in this case for while
indeed, the private respondent may not have been
impelled by the purest of intentions, she eventually
submitted to the petitioner in sexual congress not out of
lust, but because of moral seduction. In fact, it is
apparent that she had qualms of conscience about the
entire episode for as soon as she found out that the
petitioner was not going to marry her after all, she left
him. She is not, therefore, in pari delicto with the
petitioner. Pari delicto means "in equal fault; in a
similar offense or crime; equal in guilt or in legal fault."
At most, it could be conceded that she is merely in
delicto.
Equity often interferes for the relief of the less guilty of
the parties, where his transgression has been brought
about by the imposition of undue influence of the party
on whom the burden of the original wrong principally
rests, or where his consent to the transaction was itself
procured by fraud.
In Mangayao vs. Lasud, We declared:
Appellants likewise stress that both
parties being at fault, there should be
no action by one against the other
(Art. 1412, New Civil Code). This
rule, however, has been interpreted
as applicable only where the fault on
both sides is, more or less, equivalent.
It does not apply where one party is
literate or intelligent and the other
one is not. (c.f. Bough vs. Cantiveros, 40
Phil. 209).
We should stress, however, that while We find for the
private respondent, let it not be said that this Court
condones the deplorable behavior of her parents in
letting her and the petitioner stay together in the same
room in their house after giving approval to their
marriage. It is the solemn duty of parents to protect the
honor of their daughters and infuse upon them the
higher values of morality and dignity.
WHEREFORE, finding no reversible error in the
challenged decision, the instant petition is hereby
DENIED, with costs against the petitioner.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on leave.
c. Unjust enrichment
ARTICLE 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.
ARTICLE 23. Even when an act or event causing
damage to another's property was not due to the fault
or negligence of the defendant, the latter shall be
liable for indemnity if through the act or event he was
benefited.
SECURITY BANK & TRUST CO., ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 117009, 11 October 1995, 249 SCRA 206
PADILLA, J.:
In this petition for review under Rule 45 of the Rules of
Court, petitioners seek a review and reversal of the
decision of respondent Court of Appeals in CA-G.R. CV
No. 40450, entitled "Ysmael C. Ferrer v. Security Bank
and Trust Company, et. al." dated 31 August 1994,
which affirmed the decision of the Regional Trial Court,
Branch 63, Makati in Civil Case No. 42712, a complaint
for breach of contract with damages.
374
Private respondent Ysmael C. Ferrer was contracted by
herein petitioners Security Bank and Trust Company
(SBTC) and Rosito C. Manhit to construct the building
of SBTC in Davao City for the price of P1,760,000.00.
The contract dated 4 February 1980 provided that
Ferrer would finish the construction in two hundred
(200) working days. Respondent Ferrer was able to
complete the construction of the building on 15 August
1980 (within the contracted period) but he was
compelled by a drastic increase in the cost of
construction materials to incur expenses of about
P300,000.00 on top of the original cost. The additional
expenses were made known to petitioner SBTC thru its
Vice-President Fely Sebastian and Supervising
Architect Rudy de la Rama as early as March 1980.
Respondent Ferrer made timely demands for payment
of the increased cost. Said demands were supported by
receipts, invoices, payrolls and other documents
proving the additional expenses.
In March 1981, SBTC thru Assistant Vice-President
Susan Guanio and a representative of an architectural
firm consulted by SBTC, verified Ferrer's claims for
additional cost. A recommendation was then made to
settle Ferrer's claim but only for P200,000.00. SBTC,
instead of paying the recommended additional amount,
denied ever authorizing payment of any amount
beyond the original contract price. SBTC likewise
denied any liability for the additional cost based on
Article IX of the building contract which states:
If at any time prior to the completion of the work to be
performed hereunder, increase in prices of construction
materials and/or labor shall supervene through no
fault on the part of the contractor whatsoever or any act
of the government and its instrumentalities which
directly or indirectly affects the increase of the cost of
the project, OWNER shall equitably make the
appropriate adjustment on mutual agreement of both
parties.
Ysmael C. Ferrer then filed a complaint for breach of
contract with damages. The trial court ruled for Ferrer
and ordered defendants SBTC and Rosito C. Manhit to
pay:
xxx xxx xxx
On appeal, the Court of Appeals affirmed the trial court
decision.
xxx xxx xxx
Petitioners argue that under the aforequoted Article IX
of the building contract, any increase in the price of
labor and/or materials resulting in an increase in
construction cost above the stipulated contract price
will not automatically make petitioners liable to pay for
such increased cost, as any payment above the
stipulated contract price has been made subject to the
condition that the "appropriate adjustment" will be
made "upon mutual agreement of both parties". It is
375
contended that since there was no mutual agreement
between the parties, petitioners' obligation to pay
amounts above the original contract price never
materialized.
Respondent Ysmael C. Ferrer, through counsel, on the
other hand, opposed the arguments raised by
petitioners. It is of note however that the pleadings filed
with this Court by counsel for Ferrer hardly refute the
arguments raised by petitioners, as the contents of said
pleadings are mostly quoted portions of the decision of
the Court of Appeals, devoid of adequate discussion of
the merits of respondent's case. The Court, to be sure,
expects more diligence and legal know-how from
lawyers than what has been exhibited by counsel for
respondent in the present case. Under these
circumstances, the Court had to review the entire
records of this case to evaluate the merits of the issues
raised by the contending parties.
Article 22 of the Civil Code which embodies the maxim,
Nemo ex alterius incommodo debet lecupletari (no man
ought to be made rich out of another's injury) states:
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.
The above-quoted article is part of the chapter of the
Civil Code on Human Relations, the provisions of
which were formulated as "basic principles to be
observed for the rightful relationship between human
beings and for the stability of the social order, . . .
designed to indicate certain norms that spring from the
fountain of good conscience, . . . guides for human
conduct [that] should run as golden threads through
society to the end that law may approach its supreme
ideal which is the sway and dominance of justice."
In the present case, petitioners' arguments to support
absence of liability for the cost of construction beyond
the original contract price are not persuasive.
Under the previously quoted Article IX of the
construction contract, petitioners would make the
appropriate adjustment to the contract price in case the
cost of the project increases through no fault of the
contractor (private respondent). Private respondent
informed petitioners of the drastic increase in
construction cost as early as March 1980.
Petitioners in turn had the increased cost evaluated and
audited. When private respondent demanded payment
of P259,417.23, petitioner bank's Vice-President Rosito
C. Manhit and the bank's architectural consultant were
directed by the bank to verify and compute private
respondent's claims of increased cost. A
recommendation was then made to settle private
respondent's claim for P200,000.00. Despite this
recommendation and several demands from private
respondent, SBTC failed to make payment. It denied
authorizing anyone to make a settlement of private
respondent's claim and likewise denied any liability,
contending that the absence of a mutual agreement
made private respondent's demand premature and
baseless.
Petitioners' arguments are specious.
It is not denied that private respondent incurred
additional expenses in constructing petitioner bank's
building due to a drastic and unexpected increase in
construction cost. In fact, petitioner bank admitted
liability for increased cost when a recommendation was
made to settle private respondent's claim for
P200,000.00. Private respondent's claim for the
increased amount was adequately proven during the
trial by receipts, invoices and other supporting
documents.
Under Article 1182 of the Civil Code, a conditional
obligation shall be void if its fulfillment depends upon
the sole will of the debtor. In the present case, the
mutual agreement, the absence of which petitioner
bank relies upon to support its non-liability for the
increased construction cost, is in effect a condition
dependent on petitioner bank's sole will, since private
respondent would naturally and logically give consent
to such an agreement which would allow him recovery
of the increased cost.
Further, it cannot be denied that petitioner bank
derived benefits when private respondent completed
the construction even at an increased cost.
Hence, to allow petitioner bank to acquire the
constructed building at a price far below its actual
construction cost would undoubtedly constitute unjust
enrichment for the bank to the prejudice of private
respondent. Such unjust enrichment, as previously
discussed, is not allowed by law.
Finally, with respect to the award of attorney's fees to
respondent, the Court has previously held that, "even
with the presence of an agreement between the parties,
the court may nevertheless reduce attorney's fees
though fixed in the contract when the amount thereof
appears to be unconscionable or unreasonable." As
previously noted, the diligence and legal know-how
exhibited by counsel for private respondent hardly
justify an award of 25% of the principal amount due,
which would be at least P60,000.00. Besides, the issues
in this case are far from complex and intricate. The
award of attorney's fees is thus reduced to P10,000.00.
WHEREFORE, with the above modification in respect
of the amount of attorney's fees, the appealed decision
of the Court of Appeals in CA G.R. CV No. 40450 is
AFFIRMED.
SO ORDERED.
Davide, Jr., Bellosillo, Kapunan and Hermosisima, Jr.,
JJ., concur.
H.L. CARLOS CONSTRUCTION, INC. vs.
MARINA PROPERTIES CORPORATION, ET AL.
G.R. No. 147614, 29 January 2004, 421 SCRA 428
PANGANIBAN, J.:
There is unjust enrichment when a building contractor
is denied payment for increased labor cost validly
incurred and additional work validly rendered with the
owner’s express or implied agreement.
xxx xxx xxx
The Facts
The facts of the case, summarized by the Court of
Appeals (CA), are as follows:
“[Respondent] MARINA
PROPERTIES CORPORATION (MPC
for brevity) is engaged in the business
of real estate development. On May
10, 1988, MPC entered into a contract
with [Petitioner] H.[L.] CARLOS
CONSTRUCTION, INC. (HLC) to
construct Phase III of a condominium
complex called MARINA
BAYHOMES CONDOMINIUM
PROJECT, consisting of townhouses
and villas, totaling 31 housing units,
for a total consideration of
P38,580,609.00, within a period of
365 days from receipt of ‘Notice to
Proceed’. The original completion
date of the project was May 16, 1989,
but it was extended to October 31,
1989 with a grace period until
November 30, 1989.
“The contract was signed by Jovencio
F. Cinco, president of MPC, and
Honorio L. Carlos, president of HLC.
“On December 15, 1989, HLC
instituted this case for sum of money
against not only MPC but also against
the latter’s alleged president,
[Respondent] Jesus K. Typoco, Sr.
(Typoco) and [Respondent] Tan Yu
(Tan), seeking the payment of various
sums with an aggregate amount of
P14 million pesos, broken down as
follows:
xxx xxx xxx
376
 “Traversing the allegations of the
complaint, [respondents] filed
separate answers, whereby the two
individual [respondents] alleged that
they are not parties to the
Construction Contract and
Amendatory Contract and are
therefore not liable to HLC.
[Respondent] MPC on the other hand
alleged that the [petitioner] has no
cause of action against it and that it
(HLC) is not entitled to its various
claims. MPC interposed a liquidated damages in an amount equivalent to 1/1000
counterclaim in the aggregate sum of
P68,296,227.14 for actual and
compensatory damages, liquidated
damages, unliquidated advances, and
attorney’s fees.”
On May 15, 1997, the trial court ruled
as follows:
“WHEREFORE, premises above
considered, judgment is hereby
rendered for [Petitioner] H.L.
CARLOS CONSTRUCTION, INC.
and as against [Respondents]
MARINA PROPERTIES
CORPORATION, TAN YU, and
JESUS K. TYPOCO, SR., who are
hereby ordered to pay, jointly and
severally, the [petitioner], as follows:
xxx xxx xxx
Ruling of the Court of Appeals
On appeal, the CA held that respondents were not
liable for escalations in the cost of labor and
construction materials, because of the following
reasons: (1) the contract between the parties was for a
lump sum consideration, which did not allow for cost
escalation; and (2) petitioner failed to show any basis
for the award sought.
Respondents were also absolved from paying for
change orders and extra work, inasmuch as there was
no supplemental agreement covering them as required
in the main Construction Contract. Although Progress
Billing No. 24 apparently indicates that extra work was
rendered by petitioner, this claim is not supported by
sufficient evidence.
The CA further failed to find any basis for the release of
the 10 percent retention fee. The Construction Contract
had provided that such release would be made only
under certain conditions, none of which was complied
with, as petitioner failed to complete the work
required. Furthermore, MPC was not held liable for
detained or withheld construction materials, since
petitioner had eventually withdrawn them.
377
Nothing in the records indicated any personal liability
on the part of Typoco and Tan. Moreover, they had
nothing to assume, as MPC was not held liable to
petitioner.
Furthermore, the CA ruled that petitioner was liable for
actual and liquidated damages. The latter had
abandoned the project prior to its completion; hence,
MPC contracted out the work to another entity and
incurred actual damages in excess of the remaining
balance of the contract price. In addition, the
Construction Contract had stipulated payment of
of the contract price for each calendar day of delay.
Hence, this Petition.
Issues
xxx xxx xxx
In simpler terms, the issues to be resolved are as
follows:
(1) Whether petitioner is entitled to (a) a price
escalation for labor and material cost, (b) the cost of
change orders and extra work, (c) the release of the
10 percent retention money, (d) the cost of illegally
detained materials, and (e) attorney’s fees
(2) Whether Typoco and Tan are solidarily liable with
MPC
(3) Whether petitioner is liable for actual and
liquidated damages
The Court’s Ruling
The Petition is partly meritorious.
First Issue:
Liability for Additional Costs
Petitioner argues that it is entitled to price escalation for
both labor and materials, because MPC was delayed in
paying for its obligations. The former admits that it is
normally not entitled to any price increase for labor and
materials, because a contractor is expected to build into
its price a contingency factor to protect it from cost
increases that may occur during the contract period. It
justifies its claim, however, on the ground that a
contractor cannot be expected to anticipate price
increases beyond the original contract period.
Respondents, on the other hand, aver that it was
delayed in finishing the project; hence, it is not entitled
to any price increase.
It must be pointed out that the reason for the CA’s
denial of petitioner’s claim was that the contract
between the parties was for a lump sum consideration,
and petitioner was guilty of delay in completing the
project.
Labor and Material
Cost Escalation
We agree with petitioner that it is entitled to price
escalation, but only for the labor component of Progress
Billing No. 24. The Construction Contract contains the
following provision on the considerations therefor:
“6.1 For and in consideration of
the true and faithful performance of
the work by the CONTRACTOR, the
OWNER shall pay the Lump Sum
Contract Price of PESOS: THIRTY
EIGHT MILLION FIVE HUNDRED
EIGHTY THOUSAND SIX
HUNDRED NINE (P38,580,609.00)
broken down as shown in the Bid
Form. No cost escalation shall be
allowed except on the labor
component of the work x x x.”
Since the Contract allows escalation only of the “labor
component,” the implication is that material cost
escalations are barred. There appears to be no
provision, either in the original or in the amended
contract, that would justify billing of increased cost of
materials. Furthermore, no evidence -- like official
economic data showing an increase in the price index of
construction materials -- was even adduced by
petitioner to prove that there had indeed been increases
in material costs.
Petitioner attempts to pass off these cost escalations as a
form of damages suffered by it as a natural
consequence of the delay in the payment of billings and
claims for additional work. It argues that the baseless
and malicious refusal to pay for those claims renders
respondents liable for damages under Article 2201 of
the Civil Code.
We disagree. Without tackling the issue of delay, we
find that the contentious Progress Billing No. 24
contains no claim for material cost escalation. The other
unsettled bills claimed by petitioner are those for
change orders or extra work, which have not been
shown to be related to the increase in cost of materials.
Dealt with in separate contracts between the parties
were such claims, the costs of which were to be
determined and agreed upon only when required by
MPC. Materials used for those additional jobs were to
be purchased only when the work was contracted, not
prior thereto. As admitted by petitioner, expenses for
change orders/additional work were not included in
the agreed contract price and, hence, were not subject to
increases.
MPC admits that the labor cost escalation clause was
adopted by the parties to safeguard the contractor
against losses in the event that, during the execution of
the Contract, the government would order a minimum
wage adjustment, which would then inflate the labor
cost. Respondents deny liability for this added expense
because, according to the Contract, the allowance for
labor cost escalation is available only within the
duration of the original construction period.
We clarify. The claimed cost of labor escalation
pertains to the period September 1 to December 15,
1989, in the amount of P170,722.10; and December 16 to
January 27, 1990, P45,983.91. During those periods,
petitioner had not yet incurred any delay in the project,
originally stipulated to be finished by May 16, 1989.
But by mutual agreement, the period was extended up
to October 31, 1989, with a grace period until
November 30, 1989.
Furthermore, a legislated wage increase became
effective after the expiration of the original period.
Respondents are, therefore, liable for this increase in
labor cost, because they allowed petitioner to continue
working on the project until April 20, 1990 (even
beyond November 30, 1989).
MPC argues that to allow the claim for labor cost
escalation would be to reward petitioner for incurring
delay, thereby breaching a contractual obligation.
This contention is untenable. Before the expiration of
the extended period, petitioner was not yet in delay. It
was granted by MPC an extension to complete the
project until November 30, 1989. Moreover, despite the
expiration of the extended period, MPC allowed it to
continue working on the project until the former took
over and awarded that project to another contractor.
Hence, labor costs were actually incurred by petitioner
until April 20, 1990. It was thus entitled to
reimbursement for labor cost escalation until that date.
MPC cannot now be allowed to question the true
valuation of the additional labor because, instead of
submitting to an independent evaluator, it violated the
Temporary Restraining Order (TRO) issued by the trial
court and hired another contractor to finish the project.
Noteworthy is the fact that MPC paid for the labor cost
escalation during the period August 1-15, 1989, which
was past the expiration of the original period.
Apparently, it thereafter stopped paying for labor cost
escalation in response to the suit filed against it by
petitioner.
The CA denied the labor cost escalation claim because,
despite having billed MPC therefor, petitioner accepted
payments that did not include such claim. The
appellate court construed the acceptance by petitioner
as a waiver of the latter’s right to be reimbursed for the
increased labor cost.
We believe that this position is untenable. The CA
mistook Exhibits “C-7-B” and “D-1” as bills coming
from petitioner, when in truth they were
Accomplishment Evaluation Sheets issued by MPC.
The notation “labor escalation not included” in the said
Exhibits was an admission on the part of MPC that it
had not paid such amount, upon the advice of Atty.
Jose C. Laureta, its resident counsel. According to him,
378
petitioner should be faulted for having incurred labor
cost increases after the expiration of the original period
(after May 16, 1989). Not having waived such
increases, it should thus bear them.
To allow MPC to acquire the partially accomplished
project without paying for labor cost escalation validly
incurred would constitute unjust enrichment at the
expense of petitioner. There is unjust enrichment under
Article 22 of the Civil Code when (1) a person is
unjustly benefited, and (2) such benefit is derived at the
expense of or with damages to another. Since petitioner
had rendered services that were accepted by MPC, then
the former should be compensated for them. Labor cost
escalation, in this case, has already been earned by
petitioner.
xxx xxx xxx
WHEREFORE, the Petition is partly GRANTED and the
assailed Decision MODIFIED. Petitioner is AWARDED
labor cost escalation in the sum of P1,196,202 and cost
of extra work in the sum of P79,340.52. In all other
respects, the appealed Decision is AFFIRMED.
SO ORDERED.
Davide, Jr., (Chairman), Ynares-Santiago and Carpio,
JJ., concur.
Azcuna, J., on official leave - official business.
d. Judicial vigilance
ARTICLE 24. In all contractual, property or other
relations, when one of the parties is at a disadvantage
on account of his moral dependence, ignorance,
indigence, mental weakness, tender age or other
handicap, the courts must be vigilant for his
protection.
e. Thoughtless extravagance
ARTICLE 25. Thoughtless extravagance in
expenses for pleasure or display during a period of
acute public want or emergency may be stopped by
order of the courts at the instance of any government
or private charitable institution.
f. Right to privacy
ARTICLE 26. Every person shall respect the
dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a criminal
offense, shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or
family relations of another;
379
(3) Intriguing to cause another to be alienated from
his friends;
(4) Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of
birth, physical defect, or other personal condition.
ST. LOUIS REALTY CORPORATION vs.
COURT OF APPEALS, ET AL.
G.R. No. L-46061, 14 November 1984.
AQUINO, J p:
This case is about the recovery of damages for a
wrongful advertisement in the Sunday Times where
Saint Louis Realty Corporation misrepresented that the
house of Doctor Conrado J. Aramil belonged to Arcadio
S. Arcadio.
St. Louis Realty caused to be published with the
permission of Arcadio S. Arcadio (but without
permission of Doctor Aramil) in the issue of the Sunday
Times of December 15, 1968 an advertisement with the
heading "WHERE THE HEART IS". Below that heading
was the photograph of the residence of Doctor Aramil
and the Arcadio family and then below the photograph
was the following write-up:
"Home is where the heart is. And the
hearts of MR. AND MRS. ARCADIO
S. ARCADIO and their family have
been captured by BROOKSIDE
HILLS. They used to rent a small 2-
bedroom house in a cramped
neighborhood, sadly inadequate and
unwholesome for the needs of a large
family. They dream(ed) of a more
pleasant place free from the din and
dust of city life yet near all facilities.
Plans took shape when they heard of
BROOKSIDE HILLS. With thrift and
determination, they bought a lot and
built their dream house . . . for
P31,000. The Arcadios are now part
of the friendly, thriving community
of BROOKSIDE HILLS . . . a beautiful
first-class subdivision planned for
wholesome family living."
The same advertisement appeared in the Sunday Times
dated January 5, 1969. Doctor Aramil, a
neuropsychiatrist and a member of the faculty of the U.
E. Ramon Magsaysay Memorial Hospital, noticed the
mistake. On that same date, he wrote St. Louis Realty
the following letter of protest:
"Dear Sirs:
This is anent to your advertisements
appearing in the December 15, 1968
and January 5, 1969 issues of the
Sunday Times which boldly depicted
my house at the above-mentioned
 address and implying that it
belonged to another person. I am not
aware of any permission or authority
on my part for the use of my house
for such publicity.
"This unauthorized use of my house
for your promotional gain and much
more the apparent distortions therein
are I believe not only transgression to
my private property but also
damaging to my prestige in the
medical profession. I have had
invited in several occasions
numerous medical colleagues,
medical students and friends to my
house and after reading your
December 15 advertisement, some of
them have uttered some remarks
purporting doubts as to my
professional and personal integrity.
Such sly remarks although in light
vein as `it looks like your house,'
`how much are you renting from the
Arcadios?', `like your wife portrayed
in the papers as belonging to another
husband', etc., have resulted in no
little mental anguish on my part.
"I have referred this matter to the
Legal Panel of the Philippine Medical
Association and their final advice is
pending upon my submission of
supporting ownership papers.
"I will therefore be constrained to
pursue court action against your
corporation unless you could
satisfactorily explain this matter
within a week upon receipt of this
letter."
The letter was received by Ernesto Magtoto, an officer
of St. Louis Realty in charge of advertising. He stopped
publication of the advertisement. He contacted Doctor
Aramil and offered his apologies. However, no
rectification or apology was published.
On February 20, 1969, Aramil's counsel demanded from
St. Louis Realty actual, moral and exemplary damages
of P110,000 (Exh. D). In its answer dated March 10, St.
Louis Realty claimed that there was an honest mistake
and that if Aramil so desired, rectification would be
published in the Manila Times (Exh. 3).
It published in the issue of the Manila Times of March
18, 1969 a new advertisement with the Arcadio family
and their real house. But it did not publish any apology
to Doctor Aramil and an explanation of the error.
On March 29, Aramil filed his complaint for damages.
St. Louis Realty published in the issue of the Manila
Times of April 15, 1969 the following "NOTICE OF
RECTIFICATION" in a space 4 by 3 inches:
"This will serve as a notice that our
print ad `Where the Heart is' which
appeared in the Manila Times issue
of March 18, 1969 is a rectification of
the same ad that appeared in the
Manila Times issues of December 15,
1968 and January 5, 1969 wherein a
photo of the house of another
Brookside Homeowner (Dr. Aramil-
private respondent) was mistakenly
used as a background for the featured
homeowner's the Arcadio family.
"The ad of March 18, 1969 shows the
Arcadio family with their real house
in the background, as was intended
all along."
Judge Jose M. Leuterio observed that St. Louis Realty
should have immediately published a rectification and
apology. He found that as a result of St. Louis Realty's
mistake, magnified by its utter lack of sincerity, Doctor
Aramil suffered mental anguish and his income was
reduced by about P1,000 to P1,500 a month. Moreover,
there was violation of Aramil's right to privacy (Art. 26,
Civil Code).
The trial court awarded Aramil P8,000 as actual
damages, P20,000 as moral damages and P2,000 as
attorney's fees. St. Louis Realty appealed to the Court of
Appeals.
The Appellate Court affirmed that judgment, with
Acting Presiding Justice Magno S. Gatmaitan as
ponente, and Justices Sixto A. Domondon and Samuel
F. Reyes concurring.
The Appellate Court reasoned out that St. Louis Realty
committed an actionable quasi-delict under articles 21
and 26 of the Civil Code because the questioned
advertisements pictured a beautiful house which did
not belong to Arcadio but to Doctor Aramil who,
naturally, was annoyed by that contretemps.
In this appeal, St. Louis Realty contends that the
Appellate Court ignored certain facts and resorted to
surmises and conjectures. This contention is
unwarranted. The Appellate Court adopted the facts
found by the trial court. Those factual findings are
binding on this Court.
St. Louis Realty also contends that the decision is
contrary to law and that the case was decided in a way
not in conformity with the rulings of this Court. It
argues that the case is not covered by article 26 which
provides that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors
and other persons". "Prying into the privacy of
another's residence" and "meddling with or disturbing
380
the private life or family relations of another" and
"similar acts", "though they may not constitute a
criminal offense, shall produce a cause of action for
damages, prevention and other relief".
The damages fixed by Judge Leuterio are sanctioned by
articles 2200, 2208 and 2219 of the Civil Code. Article
2219 allows moral damages for acts and actions
mentioned in article 26. As lengthily explained by
Justice Gatmaitan, the acts and omissions of the firm
fall under article 26.
St. Louis Realty's employee was grossly negligent in
mixing up the Aramil and Arcadio residences in a
widely circulated publication like the Sunday Times. To
suit its purpose, it never made any written apology and
explanation of the mixup. It just contented itself with a
cavalier "rectification".
Persons, who know the residence of Doctor Aramil,
were confused by the distorted, lingering impression
that he was renting his residence from Arcadio or that
Arcadio had leased it from him. Either way, his private
life was mistakenly and unnecessarily exposed. He
suffered diminution of income and mental anguish.
WHEREFORE, the judgment of the Appellate Court is
affirmed. Costs against the petitioner.
SO ORDERED.
Makasiar, Concepcion, Jr., Abad Santos, Escolin and
Cuevas, JJ ., concur.
JEROME CASTRO vs. PEOPLE OF THE
PHILIPPINES
G.R. No. 180832, 23 July 2008
See supra.
g. Dereliction of Duty
ARTICLE 27. Any person suffering material or
moral loss because a public servant or employee
refuses or neglects, without just cause, to perform his
official duty may file an action for damages and other
relief against the latter, without prejudice to any
disciplinary administrative action that may be taken.
PHILIPPINE MATCH CO., LTD. vs.
THE CITY OF CEBU, ET AL.
G.R. No. L-30745, 18 January 1978, 81 SCRA 99
AQUINO, J p:
This case is about the legality of the tax collected by the
City of Cebu on sales of matches stored by the
Philippine Match Co., Ltd. in Cebu City but delivered
to customers outside of the city.
Ordinance No. 279 of Cebu City (approved by the
mayor on March 10, 1960 and also approved by the
381
provincial board) is "an ordinance imposing a quarterly
tax on gross sales or receipts of merchants, dealers,
importers and manufacturers or any commodity doing
business" in Cebu City. It imposes a sales tax of one
percent (1%) on the gross sales, receipt or value of
commodities sold, bartered, exchanged or
manufactured in the city in excess of P2,000 a quarter.
Section 9 of the ordinance provides that, for purpose of
the tax, "all delivers of goods or commodities stored in
the City of Cebu, or if not stored are sold" in that city,
"shall be considered as sales" in the city and shall be
taxable.
Thus, it would seem that under the tax ordinance sales
of matches consummated outside of the city are taxable
as long as the matches sold are taken from the
company's stock stored in Cebu City.
The Philippine Match Co., Ltd., whose principal office
is in Manila, is engaged in the manufacture of matches.
Its factory is located at Punta, Sta. Ana, Manila. It ships
cases or cartons of matches from Manila to its branch
office in Cebu City for storage, sale and distribution
within the territories and districts under its Cebu
branch or the whole Visayas-Mindanao region. Cebu
City itself is just one of the eleven districts under the
company's Cebu City branch office.
The company does not question the tax on the sales of
matches consummated in Cebu City, meaning matches
sold and delivered within the city.
It assails the legality of the tax which the city treasurer
collected on out-of-town deliveries of matches, to wit:
(1) sales of matches booked and paid for in Cebu City
but shipped directly to customers outside of the city; (2)
transfers of matches to salesmen assigned to different
agencies outside of the city and (3) shipments of
matches to provincial customers pursuant to salesmen's
instructions.
xxx xxx xxx
On August 12, 1963 the company filed the complaint
herein, praying that the ordinance be declared void
insofar as it taxed the deliveries of matches outside of
Cebu City, that the city be ordered to refund to the
company the said sum of P12,844.61 as excess sales tax
paid, and that the city treasurer be ordered to pay
damages.
After hearing, the trial court sustained the tax on the
sales of matches booked and paid for in Cebu City
although the matches were shipped directly to
customers outside of the city. The lower court held that
the said sales were consummated in Cebu City because
delivery to the carrier in the city is deemed to be a
delivery to the customers outside of the city.
But the trial court invalidated the tax on transfers of
matches to salesmen assigned to different agencies
outside of the city and on shipments of matches to
provincial customers pursuant to the instructions of the
salesmen. It ordered the defendants to refund to the
plaintiff the sum of P8,923.55 as taxes paid on the said
out-of-town deliveries with legal rate of interest from
the respective dates of payment.
The trial court characterized the tax on the other two
transactions as a "storage tax" and not a sales tax. It
assumed that the sales were consummated outside of
the city and, hence, beyond the city's taxing power. The
city did not appeal from that decision. The company
appealed from that portion of the decision upholding
the tax on sales of matches to customers outside of the
city but which sales were booked and paid for in Cebu
City, and also from the dismissal of its claim for
damages against the city treasurer.
The issue is whether the City of Cebu can tax sales of
matches which were perfected and paid for in Cebu
City but the matches were delivered to customers
outside of the City.
We hold that the appeal is devoid of merit because the
city can validly tax the sales of matches to customers
outside of the city as long as the orders were booked
and paid for in the company's branch office in the city.
Those matches can be regarded as sold in the city, as
contemplated in the ordinance, because the matches
were delivered to the carrier in Cebu City. Generally,
delivery to the carrier is delivery to the buyer (Art.
1523, Civil Code; Behn, Meyer & Co. vs. Yangco, 38 Phil.
602).
xxx xxx xxx
The company in its second assignment of error
contends that the trial court erred in not ordering
defendant acting city treasurer to pay exemplary
damages of P20,000 and attorney's fees.
The claim for damages is predicated on articles 19, 20,
21, 27 and 2229 of the Civil Code. It is argued that the
city treasurer refused and neglected without just cause
to perform his duty and to act with justice and good
faith. The company faults the city treasurer for not
following the opinion of the city fiscal, as legal adviser
of the city, that all out-of-town deliveries of matches are
not subject to sales tax because such transaction were
effected outside of the city's territorial limits.
In reply, it is argued for defendant city treasurer that in
enforcing the tax ordinance in question he was simply
complying with his duty as collector of taxes (Sec. 50,
Revised Charter of Cebu City). Moreover, he had no
choice but to enforce the ordinance because according
to section 357 of the Revised Manual of Instructions to
Treasurer's, "a tax ordinance will be enforced in
accordance with its provisions" until declared illegal or
void by a competent court, or otherwise revoked by the
council or board from which it originated.
Furthermore, the Secretary of Finance had reminded
the city treasurer that a tax ordinance approved by the
provincial board is operative and must be enforced
without prejudice to the right of any affected taxpayer
to assail its legality in the judicial forum. The fiscal's
opinion on the legality of an ordinance is merely
advisory and has no binding effect.
Article 27 of the Civil Code provides that "any person
suffering material or moral loss because a public
servant or employee refuses or neglects, without just
cause, to perform his official duty may file an action for
damages and other relief against the latter, without
prejudice to any disciplinary administrative action that
may be taken."
Article 27 presupposes that the refusal or omission of a
public official is attributable to malice or inexcusable
negligence. In this case, it cannot be said that the city
treasurer acted wilfully or was grossly negligent in not
refunding to the plaintiff the taxes which it paid under
protest on out-of-town sales of matches.
The record clearly reveals that the city treasurer
honestly believed that he was justified under section 9
of the tax ordinance in collecting the sales tax on out-of-
town deliveries, considering that the company's branch
office was located in Cebu City and that all out-of-town
purchase orders for matches were filled up by the
branch office and the sales were duly reported to it.
The city treasurer acted within the scope of his
authority and in consonance with his bona fide
interpretation of the tax ordinance. The fact that his
action was not completely sustained by the courts
would not render him liable for damages. We have
upheld his act of taxing sales of matches booked and
paid for in the city.
"As a rule, a public officer, whether
judicial, quasi-judicial, or executive,
is not personally liable to one injured
in consequence of an act performed
within the scope of his official
authority, and in the line of his
official duty." "Where an officer is
invested with discretion and is
empowered to exercise his judgment
in matters brought before him, he is
sometimes called a quasi-judicial
officer, and when so acting he is
usually given immunity from liability
to persons who may be injured as the
result or an erroneous or mistaken
decision, however erroneous his
judgment may be, provided the acts
complained of are done within the
scope of the officer's authority, and
without willfulness, malice or
corruption." (63 Am Jur 2nd 798, 799
cited in Philippine Racing Club, Inc. vs.
Bonifacio, 109 Phil. 233, 240-241).
382

It has been held that an erroneous interpretation of an
ordinance does not constitute nor does it amount to bad
faith that would entitle an aggrieved party to an award
for damages (Cabungcal vs. Cordova, 120 Phil. 567, 572-
3). That salutary rule may be applied in this case.
Exemplary damages may be claimed in addition to
moral, temperate, liquidated or compensatory damages
(Art. 2229, Civil Code). Attorney's fees are being
claimed herein as actual damages. We find that it
would not be just and equitable to award attorney's fees
in this case against the City of Cebu and its treasurer
(See Art. 2208, Civil Code).
WHEREFORE, the trial court's judgment is affirmed.
No costs.
SO ORDERED.
Fernando (Chairman), Antonio and Concepcion, Jr., JJ .,
concur.
Santos, J ., is on leave.
TORIO, ET AL. vs. FONTANILLA, ET AL.
G.R. Nos. L-30183 and L-29993, 23 October 1978.
See supra.
h. Unfair competition
ARTICLE 28. Unfair competition in agricultural,
commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or
highhanded method shall give rise to a right of action
by the person who thereby suffers damage.
i. Violation of Constitutional rights
ARTICLE 32. Any public officer or employee, or
any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of
another person shall be liable to the latter for
damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without
due process of law;
(7) The right to a just compensation when private
property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house,
papers, and effects against unreasonable searches
and seizures;
(10) The liberty of abode and of changing the same;
383
(11) The privacy of communication and
correspondence;
(12) The right to become a member of associations or
societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the Government for redress of
grievances;
(14) The right to be free from involuntary servitude in
any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by
himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face
to face, and to have compulsory process to secure
the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness
against one's self, or from being forced to confess
guilt, or from being induced by a promise of
immunity or reward to make such confession,
except when the person confessing becomes a
State witness;
(18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed
or inflicted in accordance with a statute which has
not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether
or not the defendant's act or omission constitutes a
criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil
action for damages, and for other relief. Such civil
action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be
proved by a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes a
violation of the Penal Code or other penal statute.
DELFIN LIM and JIKIL TAHA vs. FRANCISCO
PONCE DE LEON AND ORLANDO MADDELA
G.R. No. L-22554, 29 August 1975, 66 SCRA 299
MARTIN, J p:
Appeal on a question of law from the decision of the
Court of First Instance of Palawan in Civil Case No.
416, entitled "Delfin Lim and Jikil Taha vs. Francisco
Ponce de Leon and Orlando Maddela, dismissing the
complaint of the plaintiffs and ordering them to pay
each of the defendants jointly and severally the sum of
P500.00 by way of actual damages; P500.00 by way of
attorney's fees; and P1,000.00 by way of exemplary
damages.
On April 29, 1961, plaintiff-appellant Jikil Taha sold to a
certain Alberto Timbangcaya of Brooke's Point,
Palawan a motor launch named M/L "SAN RAFAEL".
A year later or on April 9, 1962 Alberto Timbangcaya
filed a complaint with the Office of the Provincial Fiscal
of Palawan alleging that after the sale Jikil Taha forcibly
took away the motor launch from him.
On May 14, 1962, after conducting a preliminary
investigation, Fiscal Francisco Ponce de Leon, in his
capacity as Acting Provincial Fiscal of Palawan, filed
with the Court of First Instance of Palawan the
corresponding information for Robbery with Force and
Intimidation upon Persons against Jikil Taha. The case
was docketed as Criminal Case No. 2719.
On June 15, 1962, Fiscal Francisco Ponce de Leon, upon
being informed that the motor launch was in Balabac,
Palawan, wrote the Provincial Commander of Palawan
requesting him to direct the detachment commander in
Balabac to impound and take custody of the motor
launch.
On June 26, 1962, Fiscal Ponce de Leon reiterated his
request to the Provincial Commander to impound the
motor launch, explaining that its subsequent sale to a
third party, plaintiff-appellant Delfin Lim, cannot
prevent the court from taking custody of the same. 2 So,
on July 6, 1962 upon order of the Provincial
Commander, defendant-appellee Orlando Maddela,
Detachment Commander of Balabac, Palawan, seized
the motor launch "SAN RAFAEL" from plaintiff-
appellant Delfin Lim and impounded it.
On July 15, 1962 plaintiff-appellant Delfin Lim pleaded
with Orlando Maddela to return the motor launch but
the latter refused. Likewise, on September 20, 1962, kill
Taha through his counsel made representations with
Fiscal Ponce de Leon to return the seized property to
plaintiff-appellant Delfin Lim but Fiscal Ponce de Leon
refused, on the ground that the same was the subject of
a criminal offense.
All efforts to recover the motor launch going to naught,
plaintiffs-appellants Delfin Lim and Jikil Taha, on
November 19, 1962, filed with the Court of First
Instance of Palawan a complaint for damages against
defendants-appellees Fiscal Francisco Ponce de Leon
and Orlando Maddela, alleging that on July 6, 1962
Orlando Maddela entered the premises of Delfin Lim
without a search warrant and then and there took away
the hull of the motor launch without his consent; that
he effected the seizure upon order of Fiscal Ponce de
Leon who knew fully well that his office was not vested
with authority to order the seizure of a private
property; that said motor launch was purchased by
Delfin Lim from Jikil Taha in consideration of Three
Thousand Pesos (P3,000.00), Two Thousand Pesos
(P,000.00) of which has been given to Jikil Taha as
advance payment; that as a consequence of the
unlawful seizure of the motor launch, its sale did not
materialize; and that since July 6, 1962, the said motor
launch had been moored at the Balabac Bay, Palawan
and because of exposure to the elements it had become
worthless and beyond repair. For the alleged violation
of their constitutional rights, plaintiffs-appellants
prayed that defendants-appellees be ordered to pay
jointly and severally each of them the sum of P5,750.00
representing actual, moral and exemplary damages and
attorney's fees.
In their answer, defendants-appellees denied the
material allegations of the complaint and as affirmative
defenses alleged that the motor launch in question
which was sold by Jikil Taha to Alberto Timbangcaya
on April 29, 1961 was sometime in April 1962, forcibly
taken with violence upon persons and with intent to
gain by Jikil Taha from Alfredo Timbangcaya without
the latter's knowledge and consent, thus giving rise to
the filing of a criminal charge of robbery against Jikil
Taha; that Fiscal Ponce de Leon, in his capacity as
Acting Provincial Fiscal of Palawan ordered Orlando
Maddela to seize and impound the motor launch "SAN
RAFAEL", for being the corpus delicti of the robbery;
and that Orlando Maddela merely obeyed the orders of
his superior officer to impound said launch. By way of
counterclaim, defendants-appellees alleged that
because of the malicious and groundless filing of the
complaint by plaintiffs-appellants, they were
constrained to engage the services of lawyers, each of
them paying P500.00 as attorney's fees; and that they
suffered moral damages in the amount of P5,000.00
each and actual damages in the amount of P500.00 each.
They also prayed that each of them awarded exemplary
damages in the amount of P1,000.00.
On September 13, 1965, the trial court rendered its
decision, upholding the validity of the seizure of the
motor launch on the ground that "the authority to
impound evidences or exhibits or corpus delicti in a
case pending investigation is inherent in the Provincial
Fiscal who controls the prosecution and who introduces
those exhibits in the court." Accordingly, the trial court
dismissed the complaint of plaintiffs-appellants and
ordered them to pay jointly and severally each of the
defendants-appellees the amount of P500.00 by way of
actual damages another amount of P500.00 for
attorney's fees and P1,000.00 as exemplary damages.
Hence, this appeal.
Two vital issues call for resolution by this Court. First,
whether or not defendant-appellee Fiscal Ponce de
Leon had the power to order the seizure of the motor
launch in question without a warrant of search and
seizure even if the same was admittedly the corpus
delicti of the crime. Second, whether or not defendants-
appellees are civilly liable to plaintiffs-appellants for
damages allegedly suffered by them granting that the
seizure of the motor launch was unlawful.
The gravamen of plaintiffs-appellants' argument is that
the taking of the motor launch on July 6, 1962 by
Orlando Maddela upon the order of Fiscal Ponce de
Leon was in violation of the constitutional guarantee
384
against unreasonable searches and seizures since it was
done without a search warrant.
xxx xxx xxx
Defendant-appellees admitted that when Orlando
Maddela entered the premises of Delfin Lim and
impounded the motor launch he was not armed with a
search warrant; that he effected the seizure of the motor
launch in the absence of and without the consent of
Delfin Lim. There can be no question that without the
proper search warrant, no public official has the right to
enter the premises of another without his consent for
the purpose of search and seizure. And since in the
present case defendants-appellees seized the motor
launch without a warrant, they have violated the
constitutional right of plaintiffs-appellants against
unreasonable search and seizure.
Defendants-appellees however would want to justify
the seizure of the motor launch even without a warrant
because of Fiscal Ponce de Leon's alleged, inherent
power to order the seizure of a personal property which
is the corpus delicti of a crime, he being a quasi judicial
officer who has the control of the prosecution and the
presentation of the evidence in the criminal case. They
argue that inasmuch as the motor launch in question
was allegedly stolen by Jikil Taha from Timbangcaya,
Fiscal Ponce de Leon could order its seizure even
without a search warrant. We cannot agree. Under the
old Constitution, the power to issue a search warrant is
vested in a judge or magistrate and in no other officer
and no search and seizure can be made without a
proper warrant. At the time the act complained of was
committed, there was no law or rule that recognized the
authority of Provincial Fiscals to issue a search warrant.
In his vain attempt to justify the seizure of the motor
launch in question without a warrant Fiscal Ponce de
Leon invoked the provisions of Republic Act No. 732,
which amended Sections 1674 and 1687 of the Revised
Administrative Code. But there is nothing in said law
which confers upon the provincial fiscals the authority
to issue warrants, much less to order without warrant
the seizure of a personal property even if it is the
corpus delicti of a crime. True, Republic Act No. 732
has broadened the power of provincial fiscals to
conduct preliminary investigations, but said law did
not divest the judge or magistrate of its power to
determine, before issuing the corresponding warrant,
whether or not probable cause exists therefor.
xxx xxx xxx
Defendant-appellee Fiscal Ponce de Leon would also
invoke lack of time to procure a search warrant as an
excuse for the seizure of the motor launch without one.
He claimed that the motor launch had to be seized
immediately in order to preserve it and to prevent its
removal out of the locality, since Balabac, Palawan,
where the motor launch was at the time, could only he
reached after three to four days' travel by boat. The
claim cannot be sustained. The records show that on
385
June 15, 1962 Fiscal Ponce de Leon made the first
request to the Provincial Commander for the
impounding of the motor launch; and on June 26, 1962
another request was made. The seizure was not effected
until July 6, 1962. In short, Fiscal Ponce de Leon had all
the time to procure a search warrant had he wanted to
and which he could have taken in less than a day, but
he did not. Besides, there is no basis for the
apprehension that the motor launch might be moved
out of Balabac because even prior to its seizure the
motor launch was already without its engine. In sum,
the fact that there was no time to secure a search
warrant would not legally justify a search without one.
As to whether or not they are entitled to damages,
plaintiffs-appellants anchor their claim for damages on
Articles 32 and 2219 of the New Civil Code which
provide in part as follows:
"ART. 32. Any public officer
or employee, or any private
individual, who directly or indirectly
obstructs, defeats, violates or in any
manner impedes or impairs any of
the following rights and liberties of
another person shall be liable to the
latter for damages.
xxx xxx xxx
"(9) The rights to be secure in
one's person, house, papers, and
effects against unreasonable searches
and seizures.
xxx xxx xxx
"The indemnity shall include moral
damages. Exemplary damages may
also be adjudicated."
"ART. 2219. Moral damages
may be recovered in the following
and analogous cases:
xxx xxx xxx
"(6) Illegal search;
xxx xxx xxx
"(1) Acts and action referred to
in Articles 21, 26, 27, 28, 29, 30, 32, 34
and 36."
Pursuant to the foregoing provisions, a person whose
constitutional rights have been violated or impaired is
entitled to actual and moral damages from the public
officer or employee responsible therefor. In addition,
exemplary damages may also be awarded. In the
instant case, plaintiff-appellant Delfin Lim claimed that
he purchased the motor launch from Jikil Taha in
consideration of P3,000.00, having given P2,000.00 as necessary therefore that there
advanced payment; that since its seizure on July 6, 1962 should be malice or bad faith.
the motor launch had been moored at Balabac Bay and To make such a requisite
because of exposure to the elements it has become would defeat the main purpose
worthless at the time of the filing of the present action; of Article 32 which is the
that because of the illegality of the seizure of the motor effective protection of
launch, he suffered moral damages in the sum of individual rights. Public
P1,000.00; and that because of the violation of their officials in the past have
constitutional rights they were constrained to engage abused their powers on the
the services of a lawyer whom they have paid P1,500.00 pretext of justifiable motives or
for attorney's fees. We find these claims of Delfin Lim good faith in the performance
amply supported by the evidence and therefore should of their duties. Precisely, the
be awarded the sum of P3,000.00 as actual damages; object of the Article is to put an
P1,000.00 as moral damages and P750.00 for attorney's end to official abuse by the
fees. However, with respect to plaintiff Jikil Taha, he is plea of good faith. In the
not entitled to recover any damage which he alleged he United States this remedy is in
had suffered from the unlawful seizure of the motor the nature of a tort.
launch inasmuch as he had already transferred the
ownership and possession of the motor launch to Delfin "Mr. Chairman, this article is
Lim at the time it was seized and therefore he has no firmly one of the fundamental
legal standing to question the validity of the seizure. articles introduced in the New
Well settled is the rule that the legality of a seizure can Civil Code to implement
be contested only by the party whose rights have been democracy. There is no real
impaired thereby, and that the objection to an unlawful democracy if a public official is
search and seizure is purely personal and cannot be abusing and we made the
availed of by third parties. Consequently, one who is article so strong and so
not the owner, lessee, or lawful occupant of the comprehensive that it
premises searched cannot raise the question of validity concludes an abuse of
of the search and seizure. Jikil Taha is not without individual rights even if done
recourse though. He can still collect from his co- in good faith, that official is
plaintiff, Delfin Lim the unpaid balance of P1,000.00. liable. As a matter of fact, we
know that there are very few
Defendant-appellee Fiscal Ponce de Leon wanted to public officials who openly
wash his hands of the incident by claiming that "he was and definitely abuse the
in good faith, without malice and without the slightest individual rights of the
intention of inflicting injury to plaintiff-appellant, Jikil citizens. In most cases, the
Taha" when he ordered the seizure of the motor launch. abuse is justified on a plea of
We are not prepared to sustain his defense of good desire to enforce the law to
faith. To be liable under Article 32 of the New Civil comply with one's duty. And
Code it is enough that there was a violation of the so, if we should limit the scope
constitutional rights of the plaintiffs and it is not of this article, that would
required that defendants should have acted with malice practically nullify the object of
or bad faith. Dr. Jorge Bocobo, Chairman of the Code the article. Precisely, the
Commission, gave the following reasons during the opening object of the article is
public hearings of the Joint Senate and House to put an end to abuses which
Committees, why good faith on the part of the public are justified by a plea of good
officer or employee is immaterial. Thus: faith, which is in most cases
the plea of officials abusing
"DEAN BOCOBO. Article 32, individual rights."
regarding individual rights, Attorney
Cirilo Paredes proposes that Article But defendant-appellee Orlando Maddela cannot be
32 he so amended as to make a public held accountable because he impounded the motor
official liable for violation of another launch upon the order of his superior officer. While a
person's constitutional rights only if subordinate officer may be held liable for executing
the public official acted maliciously unlawful orders of his superior officer, there are certain
or in bad faith. The Code circumstances which would warrant Maddela's
Commission opposes this suggestion exculpation from liability. The records show that after
for these reasons: Fiscal Ponce de Leon made his first request to the
Provincial Commander on June 15, 1962 Maddela was
"The very nature of Article reluctant to impound the motor launch despite
3219 that the wrong may be repeated orders from his superior officer. It was only
civil or criminal. It is not after he was furnished a copy of the reply of Fiscal

386
Ponce de Leon, dated June 26, 1962, to the letter of the
Provincial Commander, justifying the necessity of the
seizure of the motor launch on the ground that the
subsequent sale of the launch to Delfin Lim could not
prevent the court from taking custody of the same, that
he impounded the motor launch on July 6, 1962. With
said letter coming from the legal officer of the province,
Maddela was led to believe that there was a legal basis
and authority to impound the launch. Then came the
order of his superior officer to explain for the delay in
the seizure of the motor launch. Faced with a possible
disciplinary action from his commander, Maddela was
left with no alternative but to seize the vessel. In the
light of the above circumstances. We are not disposed
to hold Maddela answerable for damages.
IN VIEW OF THE FOREGOING, the decision appealed
from is hereby reversed and another one entered
declaring the seizure illegal and ordering defendant-
appellee Fiscal Francisco Ponce de Leon to pay to
plaintiff-appellant Delfin Lim the sum of P3,000.00 as
actual damages, plus P1,000.00 moral damages, and, in
addition, P750.00 for attorney's fees. With costs against
defendant-appellee Fiscal Ponce de Leon.
SO ORDERED.
Castro (Chairman), Teehankee, Makasiar and Esguerra,
JJ., concur.
Muñoz Palma, J., is on leave.
MHP GARMENTS, INC., ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 86720, 2 September 1994, 36 SCRA 227
PUNO, J p:
The constitutional protection of our people against
unreasonable search and seizure is not merely a
pleasing platitude. It vouchsafes our right to privacy
and dignity against undesirable intrusions committed
by any public officer or private individual. An
infringement of this right justifies an award for
damages.
On February 22, 1983, petitioner MHP Garments, Inc.,
was awarded by the Boy Scouts of the Philippines, the
exclusive franchise to sell and distribute official Boy
Scouts uniforms, supplies, badges, and insignias. In
their Memorandum Agreement, petitioner corporation
was given the authority to "undertake or cause to be
undertaken the prosecution in court of all illegal
sources of scout uniforms and other scouting supplies."
Sometime in October 1983, petitioner corporation
received information that private respondents Agnes
Villa Cruz, Mirasol Lugatiman, and Gertrudes Gonzales
were selling Boy Scouts items and paraphernalia
without any authority. Petitioner de Guzman, an
employee of petitioner corporation, was tasked to
387
undertake the necessary surveillance and to make a
report of the Philippine Constabulary (PC).
On October 25, 1983, at about 10:30 A.M., petitioner de
Guzman, Captain Renato M. Peñafiel, and two (2) other
constabulary men of the Reaction Force Battalion,
Sikatuna Village, Diliman, Quezon City went to the
stores of respondents at the Marikina Public Market.
Without any warrant, they seized the boy and girl
scouts pants, dresses, and suits on display at
respondents' stalls. The seizure caused a commotion
and embarrassed private respondents. Receipts were
issued for the seized items. The items were then turned
over by Captain Peñafiel to petitioner corporation for
safekeeping.
A criminal complaint for unfair competition was then
filed against private respondents. During its pendency,
petitioner de Guzman exacted from private respondent
Lugatiman the sum of THREE THOUSAND ONE
HUNDRED PESOS (P3,100.00) in order to be dropped
from the complaint. On December 6, 1983, after a
preliminary investigation, the Provincial Fiscal of Rizal
dismissed the complaint against all the private
respondents. On February 6, 1984, he also ordered the
return of the seized items. The seized items were not
immediately returned despite demands. Private
respondents had to go personally to petitioners' place of
business to recover their goods. Even then, not all the
seized items were turned. The other items returned
were of inferior quality.
Private respondent then filed Civil Case No. 51144
against the petitioners for sums of money and damages.
4 In its Decision dated January 9, 1987, the trial court
ruled for the private respondents, thus:
xxx xxx xxx
The decision was appealed to the respondent court. On
January 18, 1989, its Fifth Division, affirmed the
Decision with modification, thus:
xxx xxx xxx
Article III, Section 2, of the Constitution protects our
people from unreasonable search and seizure. It
provides:
"The right of the people to be secure
in their persons, houses, papers, and
effects against unreasonable searches
and seizures of whatever nature for
any purpose shall be inviolable, and
no search warrant or warrant of
arrest shall issue except upon
probable cause to be determined
personally by the judge after
examination under oath or
affirmation of the complainant and
the witnesses he may produce, and
particularly describing the place to be
 searched and the persons or things to violation of the private respondents' constitutional
be seized." rights, still, the omission will not exculpate petitioners.

This provision protects not only those who appear to be In the case of Lim vs. Ponce de Leon, we ruled for the
innocent but also those who appear to be guilty but are recovery of damages for violation of constitutional
nevertheless to be presumed innocent until the contrary rights and liberties from public officer or private
is proved. In the case at bench, the seizure was made individual, thus:
without any warrant. Under the Rules of Court, a
warrantless search can only be undertaken under the "ART. 32. Any public officer
following circumstance: or employee, or any private
individual, who directly or indirectly
"SEC. 12. Search incident to a lawful obstructs, defeats, violates or in any
arrest. — A person lawfully arrested manner impedes or impairs any of
may be searched for dangerous the following rights and liberties of
weapons or anything which may be another person shall be liable to the
used a proof of the commission of an latter for damages.
offense, without a search warrant."
"xxx xxx xxx
We hold that the evidence did not justify the
warrantless search and seizure of private respondents' "(9) The rights to be secure in
goods. Petitioner corporation received information that one's person, house, papers, and
private respondents were illegally selling Boy Scouts effects against unreasonable searches
items and paraphernalia in October 1983. The specific and seizures.
date and time are not established in the evidence
adduced by the parties. Petitioner de Guzman then "xxx xxx xxx
made a surveillance of the stores of private
respondents. They reported to the Philippine "The indemnity shall include moral
Constabulary and on October 25, 1983, the raid was damages. Exemplary damages may
made on the stores of private respondents and the also be adjudged."
supposed illicit goods were seized. The progression of
time between the receipt of the information and the raid "ART. 2219. Moral damages
of the stores of private respondents shows there was may be recovered in the following
sufficient time for petitioners and the PC raiding party and analogous cases:
to apply for a judicial warrant. Despite the sufficiency
of time, they did not apply for a warrant and seized the "xxx xxx xxx
goods of private respondents. In doing so, they took the
risk of a suit for damages in case the seizure would be "(6) Illegal search;.
proved to violate the right of private respondents
against unreasonable search and seizure. In the case at "(1) Acts and actions referred to
bench, the search and seizure were clearly illegal. There in Articles 21, 26, 27, 28, 29, 30, 32, 34,
was no probable cause for the seizure. Probable cause and 35.
for a search has been defined as "such facts and
circumstances which would lead a reasonably discreet Pursuant to the foregoing provisions,
and prudent man to believe that an offense has been a person whose constitutional rights
committed and that the objects sought in connection have been violated or impaired is
with the offense are in the place sought to be searched." entitled to actual and moral damages
These facts and circumstances were not in any way from the public officer or employee
shown by the petitioners to justify their warrantless responsible therefor. In addition,
search and seizure. Indeed, after a preliminary exemplary damages may also be
investigation, the Provincial Fiscal of Rizal dismissed awarded."
their complaint for unfair competition and later ordered
the return of the seized goods. xxx xxx xxx

Petitioners would deflect their liability with the
argument that it was the Philippine Constabulary that
conducted the raid and their participation was only to
report the alleged illegal activity of private
respondents.
While undoubtedly, the members of the PC raiding
team should have been included in the complaint for
"The very nature of Article 32 is that
the wrong may be civil or criminal. It
is not necessary therefore that there
should be malice or bad faith. To
make such a requisite would defeat
the main purpose of Article 32 which
is the effective protection of
individual rights. Public officials in
the past have abused their powers on

388
 the pretext of justifiable motives or
good faith in the performance of their
duties. Precisely, the object of the
Article is to put an end to official
abuse by plea of the good faith. In the
United States this remedy is in the
nature of a tort." (emphasis supplied)
In the subsequent case of Aberca vs. Ver, the Court En
Banc explained the liability of persons indirectly
responsible, viz:
"[T]he decisive factor in this case, in
our view, is the language of Article
32. The law speaks of an officer or
employee or person "directly or
indirectly" responsible for the
violation of the constitutional rights
and liberties of another. Thus, it is not
the actor alone (i.e. the one directly
responsible) who must answer for
damages under Article 32; the person
indirectly responsible has also to
answer for the damages or injury
caused to the aggrieved party.
xxx xxx xxx
While it would certainly be too naive
to expect the violators of human
rights would easily be deterred by
the prospect of facing damages suits,
it should nonetheless be made clear
in no uncertain terms that Article 32
of the Civil Code makes the persons
who are directly, as well as indirectly,
responsible for the transgression joint
tortfeasors.
xxx xxx xxx
[N]either can it be said that only
those shown to have participated
"directly" should be held liable.
Article 32 of the Civil Code
encompasses within the ambit of its
provisions those directly, as well as
indirectly, responsible for its
violations." (emphasis supplied)
Applying the aforecited provisions and leading cases,
the respondent court correctly granted damages to
private respondents. Petitioners were indirectly
involved in transgressing the right of private
respondents against unreasonable search and seizure.
Firstly, they instigated the raid pursuant to their
covenant in the Memorandum Agreement to undertake
the prosecution in court of all illegal sources of scouting
supplies. As correctly observed by respondent court:
"Indeed, the acts committed by the
PC soldiers of unlawfully appellees'
389
(respondents') merchandise and of
filing the criminal complaint for
unfair competition against appellees
(respondents) were for the protection
and benefit of appellant (petitioner)
corporation. Such being the case, it is,
thus, reasonably fair to infer from
those acts that it was upon appellant
(petitioner) corporation's instance
that the PC soldiers conducted the
raid and effected the illegal seizure.
These circumstances should answer
the trial court's query — posed in its
decision now under consideration —
as to why the PC soldiers
immediately turned over the seized
merchandise to appellant (petitioner)
corporation."
The raid was conducted with the active participation of
their employee. Larry de Guzman did not lift a finger to
stop the seizure of the boy and girl scouts items. By
standing by and apparently assenting thereto, he was
liable to the same extent as the officers themselves. So
with the petitioner corporation which even received for
safekeeping the goods unreasonably seized by the PC
raiding team and de Guzman, and refused to surrender
them for quite a time despite the dismissal of its
complaint for unfair competition.
Secondly, Letter of Instruction No. 1299 was precisely
crafted on March 9, 1983 to safeguard not only the
privilege of franchise holder of scouting items but also
the citizen's constitutional rights, to wit:
"TITLE : APPREHENSION
OF UNAUTHORIZED
MANUFACTURERS AND
DISTRIBUTORS OF SCOUT
PARAPHERNALIA AND
IMPOUNDING OF SAID
PARAPHERNALIA.
ABSTRACT:
Directs all law enforcement agencies
of the Republic of the Philippines, to
apprehend immediately
unauthorized manufacturers and
distributors of Scout paraphernalia,
upon proper application by the Boy
Scouts of the Philippines and/or Girl
Scouts of the Philippines for warrant
of arrest and/or search warrant with
a judge, or such other responsible
officer as may be authorized by law;
and to impound the said
paraphernalia to be used as evidence
in court or other appropriate
administrative body. Orders the
immediate and strict compliance with
the Instructions."

Under the above provision and as aforediscussed,
petitioners miserably failed to report the unlawful
peddling of scouting goods to the Boy Scouts of the
Philippines for the proper application of a warrant.
Private respondents' rights are immutable and cannot
be sacrificed to transient needs. Petitioners did not have
the unbridled license to cause the seizure of
respondents' goods without any warrant.
And thirdly, if petitioners did not have a hand in the
raid, they should have filed a third-party complaint
against the raiding team for contribution or any other
relief, in respect of respondents' claim for Recovery of
Sum of Money with Damages. Again, they did not.
xxx xxx xxx
IN VIEW WHEREFORE, the appealed decision is
AFFIRMED WITH MODIFICATION. We impose a SIX
PERCENT (6%) interest from January 9, 1987 on the
TWO THOUSAND PESOS (P2,000.00) for the
unreturned twenty-six (26) pieces of girl scouts items
and a TWELVE PERCENT (12%) interest, in lieu of SIX
PERCENT (6%), on the said amount upon finality of
this Decision until the payment thereof. Costs against
petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ.,
concur.
LIWAYWAY VINZONS-CHATO vs.
FORTUNE TOBACCO CORPORATION
G.R. No. 141309, 19 June 2007, 525 SCRA 11
YNARES-SANTIAGO, J.
Petitioner assails the May 7, 1999 Decision of the Court
of Appeals in CA-G.R. SP No. 47167, which affirmed
the September 29, 1997 Order of the Regional Trial
Court (RTC) of Marikina, Branch 272, in Civil Case No.
97-341-MK, denying petitioner’s motion to dismiss.
The complaint filed by respondent sought to recover
damages for the alleged violation of its constitutional
rights arising from petitioner’s issuance of Revenue
Memorandum Circular No. 37-93 (RMC 37-93), which
the Court declared invalid in Commissioner of Internal
Revenue v. Court of Appeals.
Petitioner Liwayway Vinzons-Chato was then the
Commissioner of Internal Revenue while respondent
Fortune Tobacco Corporation is an entity engaged in
the manufacture of different brands of cigarettes,
among which are “Champion,” “Hope,” and “More”
cigarettes.
On June 10, 1993, the legislature enacted Republic Act
No. 7654 (RA 7654), which took effect on July 3, 1993.
Prior to its effectivity, cigarette brands ‘Champion,”
“Hope,” and “More” were considered local brands
subjected to an ad valorem tax at the rate of 20-45%.
However, on July 1, 1993, or two days before RA 7654
took effect, petitioner issued RMC 37-93 reclassifying
“Champion,” “Hope,” and “More” as locally
manufactured cigarettes bearing a foreign brand subject
to the 55% ad valorem tax. RMC 37-93 in effect subjected
“Hope,” “More,” and “Champion” cigarettes to the
provisions of RA 7654, specifically, to Sec. 142, (c)(1) on
locally manufactured cigarettes which are currently
classified and taxed at 55%, and which imposes an ad
valorem tax of “55% provided that the minimum tax
shall not be less than Five Pesos (P5.00) per pack.”
On July 2, 1993, at about 5:50 p.m., BIR Deputy
Commissioner Victor A. Deoferio, Jr. sent via telefax a
copy of RMC 37-93 to Fortune Tobacco but it was
addressed to no one in particular. On July 15, 1993,
Fortune Tobacco received, by ordinary mail, a certified
xerox copy of RMC 37-93. On July 20, 1993, respondent
filed a motion for reconsideration requesting the recall
of RMC 37-93, but was denied in a letter dated July 30,
1993. The same letter assessed respondent for ad
valorem tax deficiency amounting to P9,598,334.00
(computed on the basis of RMC 37-93) and demanded
payment within 10 days from receipt thereof. On
August 3, 1993, respondent filed a petition for review
with the Court of Tax Appeals (CTA), which on
September 30, 1993, issued an injunction enjoining the
implementation of RMC 37-93. In its decision dated
August 10, 1994, the CTA ruled that RMC 37-93 is
defective, invalid, and unenforceable and further
enjoined petitioner from collecting the deficiency tax
assessment issued pursuant to RMC No. 37-93. This
ruling was affirmed by the Court of Appeals, and
finally by this Court in Commissioner of Internal
Revenue v. Court of Appeals. It was held, among
others, that RMC 37-93, has fallen short of the
requirements for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a
complaint for damages against petitioner in her private
capacity. Respondent contended that the latter should
be held liable for damages under Article 32 of the Civil
Code considering that the issuance of RMC 37-93
violated its constitutional right against deprivation of
property without due process of law and the right to
equal protection of the laws.
Petitioner filed a motion to dismiss contending that: (1)
respondent has no cause of action against her because
she issued RMC 37-93 in the performance of her official
function and within the scope of her authority. She
claimed that she acted merely as an agent of the
Republic and therefore the latter is the one responsible
for her acts; (2) the complaint states no cause of action
for lack of allegation of malice or bad faith; and (3) the
certification against forum shopping was signed by
respondent’s counsel in violation of the rule that it is
the plaintiff or the principal party who should sign the
same.
390
On September 29, 1997, the RTC denied petitioner’s
motion to dismiss holding that to rule on the allegations
of petitioner would be to prematurely decide the merits
of the case without allowing the parties to present
evidence. It further held that the defect in the
certification against forum shopping was cured by
respondent’s submission of the corporate secretary’s
certificate authorizing its counsel to execute the
certification against forum shopping. The dispositive
portion thereof, states:
xxx xxx xxx
The case was elevated to the Court of Appeals via a
petition for certiorari under Rule 65. However, same
was dismissed on the ground that under Article 32 of
the Civil Code, liability may arise even if the defendant
did not act with malice or bad faith. The appellate
court ratiocinated that Section 38, Book I of the
Administrative Code is the general law on the civil
liability of public officers while Article 32 of the Civil
Code is the special law that governs the instant case.
Consequently, malice or bad faith need not be alleged
in the complaint for damages. It also sustained the
ruling of the RTC that the defect of the certification
against forum shopping was cured by the submission
of the corporate secretary’s certificate giving authority
to its counsel to execute the same.
Undaunted, petitioner filed the instant recourse
contending that the suit is grounded on her acts done
in the performance of her functions as a public officer,
hence, it is Section 38, Book I of the Administrative
Code which should be applied. Under this provision,
liability will attach only when there is a clear showing
of bad faith, malice, or gross negligence. She further
averred that the Civil Code, specifically, Article 32
which allows recovery of damages for violation of
constitutional rights, is a general law on the liability of
public officers; while Section 38, Book I of the
Administrative Code is a special law on the superior
public officers’ liability, such that, if the complaint, as in
the instant case, does not allege bad faith, malice, or
gross negligence, the same is dismissible for failure to
state a cause of action. As to the defect of the
certification against forum shopping, she urged the
Court to strictly construe the rules and to dismiss the
complaint.
Conversely, respondent argued that Section 38 which
treats in general the public officers’ “acts” from which
civil liability may arise, is a general law; while Article
32 which deals specifically with the public officers’
violation of constitutional rights, is a special provision
which should determine whether the complaint states a
cause of action or not. Citing the case of Lim v. Ponce de
Leon, respondent alleged that under Article 32 of the
Civil Code, it is enough that there was a violation of the
constitutional rights of the plaintiff and it is not
required that said public officer should have acted with
malice or in bad faith. Hence, it concluded that even
granting that the complaint failed to allege bad faith or
391
malice, the motion to dismiss for failure to state a cause
of action should be denied inasmuch as bad faith or
malice are not necessary to hold petitioner liable.
The issues for resolution are as follows:
(1) May a public officer be validly sued in his/her
private capacity for acts done in connection with
the discharge of the functions of his/her office?
(2) Which as between Article 32 of the Civil Code and
Section 38, Book I of the Administrative Code
should govern in determining whether the instant
complaint states a cause of action?
xxx xxx xxx
On the first issue, the general rule is that a public officer
is not liable for damages which a person may suffer
arising from the just performance of his official duties
and within the scope of his assigned tasks. An officer
who acts within his authority to administer the affairs
of the office which he/she heads is not liable for
damages that may have been caused to another, as it
would virtually be a charge against the Republic, which
is not amenable to judgment for monetary claims
without its consent. However, a public officer is by law
not immune from damages in his/her personal capacity
for acts done in bad faith which, being outside the
scope of his authority, are no longer protected by the
mantle of immunity for official actions.
Specifically, under Section 38, Book I of the
Administrative Code, civil liability may arise where
there is bad faith, malice, or gross negligence on the
part of a superior public officer. And, under Section 39
of the same Book, civil liability may arise where the
subordinate public officer’s act is characterized by
willfulness or negligence. Thus –
Sec. 38. Liability of Superior Officers.
– (1) A public officer shall not be
civilly liable for acts done in the
performance of his official duties,
unless there is a clear showing of bad
faith, malice or gross negligence.
xxxx
Section 39. Liability of Subordinate
Officers. – No subordinate officer or
employee shall be civilly liable for
acts done by him in good faith in the
performance of his duties. However,
he shall be liable for willful or
negligent acts done by him which are
contrary to law, morals, public policy
and good customs even if he acts
under orders or instructions of his
superior.
In addition, the Court held in Cojuangco, Jr. v. Court of
Appeals, that a public officer who directly or indirectly
violates the constitutional rights of another, may be
validly sued for damages under Article 32 of the Civil
Code even if his acts were not so tainted with malice or
bad faith.
Thus, the rule in this jurisdiction is that a public officer
may be validly sued in his/her private capacity for acts
done in the course of the performance of the functions
of the office, where said public officer: (1) acted with
malice, bad faith, or negligence; or (2) where the public
officer violated a constitutional right of the plaintiff.
Anent the second issue, we hold that the complaint
filed by respondent stated a cause of action and that the
decisive provision thereon is Article 32 of the Civil
Code.
A general statute is one which embraces a class of
subjects or places and does not omit any subject or
place naturally belonging to such class. A special
statute, as the term is generally understood, is one
which relates to particular persons or things of a class
or to a particular portion or section of the state only.
A general law and a special law on the same subject are
statutes in pari materia and should, accordingly, be read
together and harmonized, if possible, with a view to
giving effect to both. The rule is that where there are
two acts, one of which is special and particular and the
other general which, if standing alone, would include
the same matter and thus conflict with the special act,
the special law must prevail since it evinces the
legislative intent more clearly than that of a general
statute and must not be taken as intended to affect the
more particular and specific provisions of the earlier
act, unless it is absolutely necessary so to construe it in
order to give its words any meaning at all.
The circumstance that the special law is passed before
or after the general act does not change the principle.
Where the special law is later, it will be regarded as an
exception to, or a qualification of, the prior general act;
and where the general act is later, the special statute
will be construed as remaining an exception to its
terms, unless repealed expressly or by necessary
implication.
Thus, in City of Manila v. Teotico, the Court held that
Article 2189 of the Civil Code which holds provinces,
cities, and municipalities civilly liable for death or
injuries by reason of defective conditions of roads and
other public works, is a special provision and should
prevail over Section 4 of Republic Act No. 409, the
Charter of Manila, in determining the liability for
defective street conditions. Under said Charter, the city
shall not be held for damages or injuries arising from
the failure of the local officials to enforce the provision
of the charter, law, or ordinance, or from negligence
while enforcing or attempting to enforce the same. As
explained by the Court:
Manila maintains that the former
provision should prevail over the
latter, because Republic Act 409 is a
special law, intended exclusively for
the City of Manila, whereas the Civil
Code is a general law, applicable to
the entire Philippines.
The Court of Appeals, however,
applied the Civil Code, and, we
think, correctly. It is true that, insofar
as its territorial application is
concerned, Republic Act No. 409 is a
special law and the Civil Code a
general legislation; but, as regards the
subject matter of the provisions above
quoted, Section 4 of Republic Act 409
establishes a general rule regulating
the liability of the City of Manila for
“damages or injury to persons or
property arising from the failure of”
city officers “to enforce the provisions
of” said Act “or any other law or
ordinance, or from negligence” of the
city “Mayor, Municipal Board, or
other officers while enforcing or
attempting to enforce said
provisions.” Upon the other hand,
Article 2189 of the Civil Code
constitutes a particular prescription
making “provinces, cities and
municipalities . . . liable for damages
for the death of, or injury suffered by,
any person by reason” — specifically
— “of the defective condition of
roads, streets, bridges, public
buildings, and other public works
under their control or supervision.”
In other words, said section 4 refers
to liability arising from negligence, in
general, regardless of the object
thereof, whereas Article 2189 governs
liability due to “defective streets,” in
particular. Since the present action is
based upon the alleged defective
condition of a road, said Article 2189
is decisive thereon.
In the case of Bagatsing v. Ramirez, the
issue was which law should govern
the publication of a tax ordinance, the
City Charter of Manila, a special act
which treats ordinances in general
and which requires their publication
before enactment and after approval,
or the Tax Code, a general law, which
deals in particular with “ordinances
levying or imposing taxes, fees or
other charges,” and which demands
publication only after approval. In
holding that it is the Tax Code which
392
 should prevail, the Court elucidated
that:
There is no question that the Revised
Charter of the City of Manila is a
special act since it relates only to the
City of Manila, whereas the Local Tax
Code is a general law because it
applies universally to all local
governments. Blackstone defines
general law as a universal rule
affecting the entire community and
special law as one relating to
particular persons or things of a
class. And the rule commonly said is
that a prior special law is not
ordinarily repealed by a subsequent
general law. The fact that one is
special and the other general creates a
presumption that the special is to be
considered as remaining an exception
of the general, one as a general law of
the land, the other as the law of a
particular case. However, the rule
readily yields to a situation where the
special statute refers to a subject in
general, which the general statute
treats in particular. Th[is] exactly is
the circumstance obtaining in the case
at bar. Section 17 of the Revised
Charter of the City of Manila speaks
of “ordinance” in general, i.e.,
irrespective of the nature and scope
thereof, whereas, Section 43 of the
Local Tax Code relates to “ordinances
levying or imposing taxes, fees or
other charges” in particular. In
regard, therefore, to ordinances in
general, the Revised Charter of the
City of Manila is doubtless dominant,
but, that dominant force loses its
continuity when it approaches the
realm of “ordinances levying or
imposing taxes, fees or other charges”
in particular. There, the Local Tax
Code controls. Here, as always, a
general provision must give way to a
particular provision. Special
provision governs.
Let us examine the provisions involved in the case at
bar. Article 32 of the Civil Code provides:
ART. 32. Any public officer or
employee, or any private individual,
who directly or indirectly obstructs,
defeats, violates, or in any manner
impedes or impairs any of the
following rights and liberties of
another person shall be liable to the
latter for damages:
393
xxxx
(6) The right against deprivation
of property without due process of
law;
xxxx
(8) The right to the equal
protection of the laws;
xxxx
The rationale for its enactment was explained by Dean
Bocobo of the Code Commission, as follows:
“DEAN BOCOBO. Article 32,
regarding individual rights, Attorney
Cirilo Paredes proposes that Article
32 be so amended as to make a public
official liable for violation of another
person’s constitutional rights only if
the public official acted maliciously
or in bad faith. The Code
Commission opposes this suggestion
for these reasons:
“The very nature of Article 32 is that
the wrong may be civil or criminal. It
is not necessary therefore that there
should be malice or bad faith. To
make such a requisite would defeat
the main purpose of Article 32 which
is the effective protection of
individual rights. Public officials in
the past have abused their powers on
the pretext of justifiable motives or
good faith in the performance of their
duties. Precisely, the object of the
Article is to put an end to official
abuse by the plea of good faith. In the
United States this remedy is in the
nature of a tort.
“Mr. Chairman, this article is firmly
one of the fundamental articles
introduced in the New Civil Code to
implement democracy. There is no
real democracy if a public official is
abusing and we made the article so
strong and so comprehensive that it
concludes an abuse of individual
rights even if done in good faith, that
official is liable. As a matter of fact,
we know that there are very few
public officials who openly and
definitely abuse the individual rights
of the citizens. In most cases, the
abuse is justified on a plea of desire to
enforce the law to comply with one’s
duty. And so, if we should limit the
scope of this article, that would
 practically nullify the object of the
article. Precisely, the opening object
of the article is to put an end to
abuses which are justified by a plea of
good faith, which is in most cases the
plea of officials abusing individual
rights.”
The Code Commission deemed it necessary to hold not
only public officers but also private individuals civilly
liable for violation of the rights enumerated in Article
32 of the Civil Code. It is not necessary that the
defendant under this Article should have acted with
malice or bad faith, otherwise, it would defeat its main
purpose, which is the effective protection of individual
rights. It suffices that there is a violation of the
constitutional right of the plaintiff.
Article 32 was patterned after the “tort” in American
law. A tort is a wrong, a tortious act which has been
defined as the commission or omission of an act by one,
without right, whereby another receives some injury,
directly or indirectly, in person, property, or
reputation. There are cases in which it has been stated
that civil liability in tort is determined by the conduct
and not by the mental state of the tortfeasor, and there
are circumstances under which the motive of the
defendant has been rendered immaterial. The reason
sometimes given for the rule is that otherwise, the
mental attitude of the alleged wrongdoer, and not the
act itself, would determine whether the act was
wrongful. Presence of good motive, or rather, the
absence of an evil motive, does not render lawful an act
which is otherwise an invasion of another’s legal right;
that is, liability in tort is not precluded by the fact that
defendant acted without evil intent.
The clear intention therefore of the legislature was to
create a distinct cause of action in the nature of tort for
violation of constitutional rights, irrespective of the
motive or intent of the defendant. This is a
fundamental innovation in the Civil Code, and in
enacting the Administrative Code pursuant to the
exercise of legislative powers, then President Corazon
C. Aquino, could not have intended to obliterate this
constitutional protection on civil liberties.
In Aberca v. Ver, it was held that with the enactment of
Article 32, the principle of accountability of public
officials under the Constitution acquires added
meaning and assumes a larger dimension. No longer
may a superior official relax his vigilance or abdicate
his duty to supervise his subordinates, secure in the
thought that he does not have to answer for the
transgressions committed by the latter against the
constitutionally protected rights and liberties of the
citizen. Part of the factors that propelled people power
in February 1986 was the widely held perception that
the government was callous or indifferent to, if not
actually responsible for, the rampant violations of
human rights. While it would certainly be too naive to
expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it
should nonetheless be made clear in no uncertain terms
that Article 32 of the Civil Code makes the persons who
are directly, as well as indirectly, responsible for the
transgression, joint tortfeasors.
On the other hand, Sections 38 and 39, Book I of the
Administrative Code, laid down the rule on the civil
liability of superior and subordinate public officers for
acts done in the performance of their duties. For both
superior and subordinate public officers, the presence
of bad faith, malice, and negligence are vital elements
that will make them liable for damages. Note that
while said provisions deal in particular with the
liability of government officials, the subject thereof is
general, i.e., “acts” done in the performance of official
duties, without specifying the action or omission that
may give rise to a civil suit against the official
concerned.
Contrarily, Article 32 of the Civil Code specifies in clear
and unequivocal terms a particular specie of an “act”
that may give rise to an action for damages against a
public officer, and that is, a tort for impairment of rights
and liberties. Indeed, Article 32 is the special provision
that deals specifically with violation of constitutional
rights by public officers. All other actionable acts of
public officers are governed by Sections 38 and 39 of the
Administrative Code. While the Civil Code,
specifically, the Chapter on Human Relations is a
general law, Article 32 of the same Chapter is a special
and specific provision that holds a public officer liable
for and allows redress from a particular class of
wrongful acts that may be committed by public
officers. Compared thus with Section 38 of the
Administrative Code, which broadly deals with civil
liability arising from errors in the performance of
duties, Article 32 of the Civil Code is the specific
provision which must be applied in the instant case
precisely filed to seek damages for violation of
constitutional rights.
The complaint in the instant case was brought under
Article 32 of the Civil Code. Considering that bad faith
and malice are not necessary in an action based on
Article 32 of the Civil Code, the failure to specifically
allege the same will not amount to failure to state a
cause of action. The courts below therefore correctly
denied the motion to dismiss on the ground of failure to
state a cause of action, since it is enough that the
complaint avers a violation of a constitutional right of
the plaintiff.
Anent the issue on non-compliance with the rule
against forum shopping, the subsequent submission of
the secretary’s certificate authorizing the counsel to sign
and execute the certification against forum shopping
cured the defect of respondent’s complaint. Besides,
the merits of the instant case justify the liberal
application of the rules.
394
WHEREFORE, in view of the foregoing, the petition is
DENIED. The Decision of the Court of Appeals dated
May 7, 1999 which affirmed the Order of the Regional
Trial Court of Marikina, Branch 272, denying
petitioner’s motion to dismiss, is AFFIRMED. The
Presiding Judge, Regional Trial Court of Marikina,
Branch 272, is hereby DIRECTED to continue with the
proceedings in Civil Case No. 97-341-MK with
dispatch.
With costs.
SO ORDERED.
LIWAYWAY VINZONS-CHATO vs.
FORTUNE TOBACCO CORPORATION,
G.R. No. 141309, 23 December 2008.
NACHURA, J.:
It is a fundamental principle in the law of public
officers that a duty owing to the public in general
cannot give rise to a liability in favor of particular
individuals. The failure to perform a public duty can
constitute an individual wrong only when a person can
show that, in the public duty, a duty to himself as an
individual is also involved, and that he has suffered a
special and peculiar injury by reason of its improper
performance or non-performance.
By this token, the Court reconsiders its June 19, 2007
Decision in this case.
As culled from the said decision, the facts, in brief, are
as follows:
On June 10, 1993, the legislature
enacted Republic Act No. 7654 (RA
7654), which took effect on July 3,
1993. Prior to its effectivity, cigarette
brands ‘Champion,” “Hope,” and
“More” were considered local brands
subjected to an ad valorem tax at the
rate of 20-45%. However, on July 1,
1993, or two days before RA 7654
took effect, petitioner issued RMC 37-
93 reclassifying “Champion,”
“Hope,” and “More” as locally
manufactured cigarettes bearing a
foreign brand subject to the 55% ad
valorem tax. RMC 37-93 in effect
subjected “Hope,” “More,” and
“Champion” cigarettes to the
provisions of RA 7654, specifically, to
Sec. 142, (c)(1) on locally
manufactured cigarettes which are
currently classified and taxed at 55%,
and which imposes an ad valorem tax
of “55% provided that the minimum
tax shall not be less than Five Pesos
(P5.00) per pack.”
395
On July 2, 1993, at about 5:50 p.m.,
BIR Deputy Commissioner Victor A.
Deoferio, Jr. sent via telefax a copy of
RMC 37-93 to Fortune Tobacco but it
was addressed to no one in
particular. On July 15, 1993, Fortune
Tobacco received, by ordinary mail, a
certified xerox copy of RMC 37-93.
On July 20, 1993, respondent filed a
motion for reconsideration requesting
the recall of RMC 37-93, but was
denied in a letter dated July 30, 1993.
The same letter assessed respondent
for ad valorem tax deficiency
amounting to P9,598,334.00
(computed on the basis of RMC 37-
93) and demanded payment within
10 days from receipt thereof. On
August 3, 1993, respondent filed a
petition for review with the Court of
Tax Appeals (CTA), which on
September 30, 1993, issued an
injunction enjoining the
implementation of RMC 37-93. In its
decision dated August 10, 1994, the
CTA ruled that RMC 37-93 is
defective, invalid, and unenforceable
and further enjoined petitioner from
collecting the deficiency tax
assessment issued pursuant to RMC
No. 37-93. This ruling was affirmed
by the Court of Appeals, and finally
by this Court in Commissioner of
Internal Revenue v. Court of
Appeals. It was held, among others,
that RMC 37-93, has fallen short of
the requirements for a valid
administrative issuance.
On April 10, 1997, respondent filed
before the RTC a complaint for
damages against petitioner in her
private capacity. Respondent
contended that the latter should be
held liable for damages under Article
32 of the Civil Code considering that
the issuance of RMC 37-93 violated
its constitutional right against
deprivation of property without due
process of law and the right to equal
protection of the laws.
Petitioner filed a motion to dismiss
contending that: (1) respondent has
no cause of action against her because
she issued RMC 37-93 in the
performance of her official function
and within the scope of her
authority. She claimed that she acted
merely as an agent of the Republic
and therefore the latter is the one
responsible for her acts; (2) the
 complaint states no cause of action
for lack of allegation of malice or bad
faith; and (3) the certification against
forum shopping was signed by
respondent’s counsel in violation of
the rule that it is the plaintiff or the
principal party who should sign the
same.
On September 29, 1997, the RTC
denied petitioner’s motion to dismiss
holding that to rule on the allegations
of petitioner would be to prematurely
decide the merits of the case without
allowing the parties to present
evidence. It further held that the
defect in the certification against
forum shopping was cured by
respondent’s submission of the
corporate secretary’s certificate
authorizing its counsel to execute the
certification against forum shopping.
xxxx
xxxx
The case was elevated to the Court of
Appeals via a petition for certiorari
under Rule 65. However, same was
dismissed on the ground that under
Article 32 of the Civil Code, liability
may arise even if the defendant did
not act with malice or bad faith. The
appellate court ratiocinated that
Section 38, Book I of the
Administrative Code is the general
law on the civil liability of public
officers while Article 32 of the Civil
Code is the special law that governs
the instant case. Consequently,
malice or bad faith need not be
alleged in the complaint for
damages. It also sustained the ruling
of the RTC that the defect of the
certification against forum shopping
was cured by the submission of the
corporate secretary’s certificate
giving authority to its counsel to
execute the same. [Citations and
underscoring omitted.]
In the aforesaid June 19, 2007 Decision, we affirmed the
disposition of the Court of Appeals (CA) and directed
the trial court to continue with the proceedings in Civil
Case No. 97-341-MK.
Petitioner, on July 20, 2007, subsequently moved for the
reconsideration of the said decision. After respondent
filed its comment, the Court, in its April 14, 2008
Resolution, denied with finality petitioner’s motion for
reconsideration.
Undaunted, petitioner filed, on April 29, 2008 her
Motion to Refer [the case] to the Honorable Court En
Banc. She contends that the petition raises a legal
question that is novel and is of paramount importance.
The earlier decision rendered by the Court will send a
chilling effect to public officers, and will adversely
affect the performance of duties of superior public
officers in departments or agencies with rule-making
and quasi-judicial powers. With the said decision, the
Commissioner of Internal Revenue will have reason to
hesitate or refrain from performing his/her official
duties despite the due process safeguards in Section 228
of the National Internal Revenue Code. Petitioner hence
moves for the reconsideration of the June 19, 2007
Decision.
In its June 25, 2008 Resolution, the Court referred the
case to the En Banc. Respondent consequently moved
for the reconsideration of this resolution.
We now resolve both motions.
There are two kinds of duties exercised by public
officers: the “duty owing to the public collectively” (the
body politic), and the “duty owing to particular
individuals, thus:
1. Of Duties to the Public. – The
first of these classes embraces those
officers whose duty is owing
primarily to the public collectively ---
to the body politic --- and not to any
particular individual; who act for the
public at large, and who are
ordinarily paid out of the public
treasury.
The officers whose duties fall wholly
or partially within this class are
numerous and the distinction will be
readily recognized. Thus, the
governor owes a duty to the public to
see that the laws are properly
executed, that fit and competent
officials are appointed by him, that
unworthy and ill-considered acts of
the legislature do not receive his
approval, but these, and many others
of a like nature, are duties which he
owes to the public at large and no
one individual could single himself
out and assert that they were duties
owing to him alone. So, members of
the legislature owe a duty to the
public to pass only wise and proper
laws, but no one person could
pretend that the duty was owing to
himself rather than to another.
Highway commissioners owe a duty
that they will be governed only by
considerations of the public good in
deciding upon the opening or closing
396
 of highways, but it is not a duty to
any particular individual of the
community.
These illustrations might be greatly
extended, but it is believed that they
are sufficient to define the general
doctrine.
2. Of Duties to Individuals. – The
second class above referred to
includes those who, while they owe
to the public the general duty of a
proper administration of their
respective offices, yet become, by
reason of their employment by a
particular individual to do some act
for him in an official capacity, under
a special and particular obligation to
him as an individual. They serve
individuals chiefly and usually
receive their compensation from fees
paid by each individual who employs
them.
A sheriff or constable in serving civil
process for a private suitor, a
recorder of deeds in recording the
deed or mortgage of an individual, a
clerk of court in entering up a private
judgment, a notary public in
protesting negotiable paper, an
inspector of elections in passing upon
the qualifications of an elector, each
owes a general duty of official good
conduct to the public, but he is also
under a special duty to the particular
individual concerned which gives the
latter a peculiar interest in his due
performance.
In determining whether a public officer is liable for an
improper performance or non-performance of a duty, it
must first be determined which of the two classes of
duties is involved. For, indeed, as the eminent Floyd R.
Mechem instructs, “[t]he liability of a public officer to
an individual or the public is based upon and is co-
extensive with his duty to the individual or the public.
If to the one or the other he owes no duty, to that one he
can incur no liability.”
Stated differently, when what is involved is a “duty
owing to the public in general”, an individual cannot
have a cause of action for damages against the public
officer, even though he may have been injured by the
action or inaction of the officer. In such a case, there is
damage to the individual but no wrong to him. In
performing or failing to perform a public duty, the
officer has touched his interest to his prejudice; but the
officer owes no duty to him as an individual. The
remedy in this case is not judicial but political.
397
The exception to this rule occurs when the complaining
individual suffers a particular or special injury on
account of the public officer’s improper performance or
non-performance of his public duty. An individual can
never be suffered to sue for an injury which,
technically, is one to the public only; he must show a
wrong which he specially suffers, and damage alone
does not constitute a wrong. A contrary precept (that
an individual, in the absence of a special and peculiar
injury, can still institute an action against a public
officer on account of an improper performance or non-
performance of a duty owing to the public generally)
will lead to a deluge of suits, for if one man might have
an action, all men might have the like—the complaining
individual has no better right than anybody else. If
such were the case, no one will serve a public office.
Thus, the rule restated is that an individual cannot have
a particular action against a public officer without a
particular injury, or a particular right, which are the
grounds upon which all actions are founded.
Juxtaposed with Article 32 of the Civil Code, the
principle may now translate into the rule that an
individual can hold a public officer personally liable for
damages on account of an act or omission that violates a
constitutional right only if it results in a particular wrong or
injury to the former. This is consistent with this Court’s
pronouncement in its June 19, 2007 Decision (subject of
petitioner’s motion for reconsideration) that Article 32,
in fact, allows a damage suit for “tort for impairment of
rights and liberties.”
It may be recalled that in tort law, for a plaintiff to
maintain an action for damages for the injuries of which
he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed the
plaintiff, meaning a concurrence of injury to the plaintiff
and legal responsibility by the person causing it. Indeed,
central to an award of tort damages is the premise that
an individual was injured in contemplation of law.
Thus, in Lim v. Ponce de Leon, we granted the
petitioner’s claim for damages because he, in fact,
suffered the loss of his motor launch due to the illegal
seizure thereof. In Cojuangco, Jr. v. Court of Appeals, we
upheld the right of petitioner to the recovery of
damages as there was an injury sustained by him on
account of the illegal withholding of his horserace prize
winnings.
In the instant case, what is involved is a public officer’s
duty owing to the public in general. The petitioner, as
the then Commissioner of the Bureau of Internal
Revenue, is being taken to task for Revenue
Memorandum Circular (RMC) No. 37-93 which she
issued without the requisite notice, hearing and
publication, and which, in Commissioner of Internal
Revenue v. Court of Appeals, we declared as having
“fallen short of a valid and effective administrative
issuance.” A public officer, such as the petitioner,
vested with quasi-legislative or rule-making power,
owes a duty to the public to promulgate rules which are
compliant with the requirements of valid
administrative regulations. But it is a duty owed not to
the respondent alone, but to the entire body politic who
would be affected, directly or indirectly, by the
administrative rule.
Furthermore, as discussed above, to have a cause of
action for damages against the petitioner, respondent
must allege that it suffered a particular or special injury
on account of the non-performance by petitioner of the
public duty. A careful reading of the complaint filed
with the trial court reveals that no particular injury is
alleged to have been sustained by the respondent. The
phrase “financial and business difficulties” mentioned
in the complaint is a vague notion, ambiguous in
concept, and cannot translate into a “particular injury.”
In contrast, the facts of the case eloquently demonstrate
that the petitioner took nothing from the respondent, as
the latter did not pay a single centavo on the tax
assessment levied by the former by virtue of RMC 37-
93.
With no “particular injury” alleged in the complaint,
there is, therefore, no delict or wrongful act or omission
attributable to the petitioner that would violate the
primary rights of the respondent. Without such delict
or tortious act or omission, the complaint then fails to
state a cause of action, because a cause of action is the
act or omission by which a party violates a right of
another.
A cause of action exists if the following elements are
present: (1) a right in favor of the plaintiff by whatever
means and under whatever law it arises or is created;
(2) an obligation on the part of the named defendant to
respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the
right of the plaintiff or constituting a breach of the
obligation of defendant to plaintiff for which the latter
may maintain an action for recovery of damages.
The remedy of a party whenever the complaint does
not allege a cause of action is to set up this defense in a
motion to dismiss, or in the answer. A motion to
dismiss based on the failure to state a cause of action in
the complaint hypothetically admits the truth of the
facts alleged therein. However, the hypothetical
admission is limited to the “relevant and material facts
well-pleaded in the complaint and inferences deducible
therefrom. The admission does not extend to
conclusions or interpretations of law; nor does it cover
allegations of fact the falsity of which is subject to
judicial notice.”
The complaint may also be dismissed for lack of cause
of action if it is obvious from the complaint and its
annexes that the plaintiff is not entitled to any relief.
The June 19, 2007 Decision and the dissent herein
reiterates that under Article 32 of the Civil Code, the
liability of the public officer may accrue even if he/she
acted in good faith, as long as there is a violation of
constitutional rights, citing Cojuangco, Jr. v. Court of
Appeals, where we said:
Under the aforecited article, it is not
necessary that the public officer acted
with malice or bad faith. To be liable,
it is enough that there was a violation
of the constitutional rights of
petitioners, even on the pretext of
justifiable motives or good faith in
the performance of duties.
The complaint in this case does not impute bad faith on
the petitioner. Without any allegation of bad faith, the
cause of action in the respondent’s complaint
(specifically, paragraph 2.02 thereof) for damages under
Article 32 of the Civil Code would be premised on the
findings of this Court in Commissioner of Internal
Revenue v. Court of Appeals (CIR v. CA), where we ruled
that RMC No. 37-93, issued by petitioner in her capacity
as Commissioner of Internal Revenue, had “fallen short
of a valid and effective administrative issuance.” This is a
logical inference. Without the decision in CIR v. CA, the
bare allegations in the complaint that respondent’s
rights to due process of law and to equal protection of
the laws were violated by the petitioner’s
administrative issuance would be conclusions of law,
hence not hypothetically admitted by petitioner in her
motion to dismiss.
But in CIR v. CA, this Court did not declare RMC 37-93
unconstitutional; certainly not from either the due
process of law or equal protection of the laws
perspective. On due process, the majority, after
determining that RMC 37-93 was a legislative rule, cited
an earlier Revenue Memorandum Circular (RMC No.
10-86) requiring prior notice before RMC’s could
become “operative.” However, this Court did not make
an express finding of violation of the right to due
process of law. On the aspect of equal protection, CIR
v. CA said: “Not insignificantly, RMC 37-93 might have
likewise infringed on uniformity of taxation;” a statement
that does not amount to a positive indictment of
petitioner for violation of respondent’s constitutional
right. Even if one were to ascribe a constitutional
infringement by RMC 37-93 on the non-uniformity of
tax provisions, the nature of the constitutional
transgression falls under Section 28, Article VI—not
Section 1, Article III—of the Constitution.
This Court’s own summation in CIR v. CA: “All taken,
the Court is convinced that the hastily promulgated RMC
37-93 has fallen short of a valid and effective administrative
issuance,” does not lend itself to an interpretation that
the RMC is unconstitutional. Thus, the complaint’s
reliance on CIR v. CA—which is cited in, and a copy of
which is annexed to, the complaint—as suggestive of a
violation of due process and equal protection, must fail.
Accordingly, from the foregoing discussion, it is
obvious that paragraph 2.02 of respondent’s complaint
loses the needed crutch to sustain a valid cause of
398
action against the petitioner, for what is left of the
paragraph is merely the allegation that only
respondent’s “Champion”, “Hope” and “More”
cigarettes were reclassified.
If we divest the complaint of its reliance on CIR v. CA,
what remains of respondent’s cause of action for
violation of constitutional rights would be paragraph
2.01, which reads:
2.01. On or about July 1, 1993,
defendant issued Revenue
Memorandum Circular No. 37-93
(hereinafter referred to as RMC No.
37-93) reclassifying specifically
“Champion”, “Hope” and “More” as
locally manufactured cigarettes
bearing a foreign brand. A copy of
the aforesaid circular is attached
hereto and made an integral part
hereof as ANNEX “A”. The issuance
of a circular and its implementation
resulted in the “deprivation of
property” of plaintiff. They were done
without due process of law and in
violation of the right of plaintiff to the
equal protection of the laws. (Italics
supplied.)
But, as intimated above, the bare allegations, “done
without due process of law” and “in violation of the
right of plaintiff to the equal protection of the laws” are
conclusions of law. They are not hypothetically
admitted in petitioner’s motion to dismiss and, for
purposes of the motion to dismiss, are not deemed as
facts.
In Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners
Co., Ltd., this Court declared that the test of sufficiency
of facts alleged in the complaint as constituting a cause
of action is whether or not, admitting the facts alleged,
the court could render a valid verdict in accordance
with the prayer of the complaint. In the instant case,
since what remains of the complaint which is
hypothetically admitted, is only the allegation on the
reclassification of respondent’s cigarettes, there will not
be enough facts for the court to render a valid judgment
according to the prayer in the complaint.
Furthermore, in an action for damages under Article 32
of the Civil Code premised on violation of due process,
it may be necessary to harmonize the Civil Code
provision with subsequent legislative enactments,
particularly those related to taxation and tax collection.
Judicial notice may be taken of the provisions of the
National Internal Revenue Code, as amended, and of
the law creating the Court of Tax Appeals. Both
statutes provide ample remedies to aggrieved
taxpayers; remedies which, in fact, were availed of by
the respondent—without even having to pay the
assessment under protest—as recounted by this Court
in CIR v. CA, viz.:
399
In a letter, dated 19 July 1993,
addressed to the appellate division of
the BIR, Fortune Tobacco requested
for a review, reconsideration and
recall of RMC 37-93. The request was
denied on 29 July 1993. The
following day, or on 30 July 1993, the
CIR assessed Fortune Tobacco for ad
valorem tax deficiency amounting to
P9,598,334.00.
On 03 August 1993, Fortune Tobacco
filed a petition for review with the
CTA.
The availability of the remedies against the assailed
administrative action, the opportunity to avail of the
same, and actual recourse to these remedies, contradict
the respondent’s claim of due process infringement.
At this point, a brief examination of relevant American
jurisprudence may be instructive.
42 U.S. Code 1983, a provision incorporated into the
Civil Rights Act of 1871, presents a parallel to our own
Article 32 of the Civil Code, as it states:
Every person who, under color of any
statute, ordinance, regulation,
custom, usage, or any State or
Territory, subjects, or causes to be
subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation
of any rights, privileges or
immunities secured by the
Constitution and laws, shall be liable
to the party injured in an action at
law, suit in equity or other proper
proceeding for redress.
This provision has been employed as the basis of tort
suits by many petitioners intending to win liability
cases against government officials when they violate
the constitutional rights of citizens.
Webster Bivens v. Six Unknown Named Agents of Federal
Bureau of Investigation, has emerged as the leading case
on the victim’s entitlement to recover money damages
for any injuries suffered as a result of flagrant and
unconstitutional abuses of administrative power. In
this case, federal narcotics officers broke into Bivens’
home at 6:30 a.m. without a search warrant and in the
absence of probable cause. The agents handcuffed
Bivens, searched his premises, employed excessive
force, threatened to arrest his family, subjected him to a
visual strip search in the federal court house,
fingerprinted, photographed, interrogated and booked
him. When Bivens was brought before a United States
Commissioner, however, charges against him were
dismissed. On the issue of whether violation of the
Fourth Amendment “by a federal agent acting under
color of authority gives rise to a cause of action for
damages consequent upon his constitutional conduct,”
the U.S. Supreme Court held that Bivens is entitled to
recover damages for injuries he suffered as a result of
the agents’ violation of the Fourth Amendment.
A number of subsequent decisions have upheld Bivens.
For instance, in Scheuer v. Rhodes, a liability suit for
money damages was allowed against Ohio Governor
James Rhodes by petitioners who represented three
students who had been killed by Ohio National Guard
troops at Kent State University as they protested
against U.S. involvement in Vietnam. In Wood v.
Strickland, local school board members were sued by
high school students who argued that they had been
deprived of constitutional due process rights when they
were expelled from school for having spiked a punch
bowl at a school function without the benefit of a full
hearing. In Butz v. Economou, Economou, whose
registration privilege as a commodities futures trader
was suspended, without prior warning, by Secretary of
Agriculture Earl Butz, sued on a Bivens action, alleging
that the suspension was aimed at “chilling” his freedom
of expression right under the First Amendment. A
number of other cases with virtually the same
conclusion followed.
However, it is extremely dubious whether a
Bivens action against government tax officials and
employees may prosper, if we consider the
pronouncement of the U.S. Supreme Court in Schweiker
v. Chilicky, that a Bivens remedy will not be allowed
when other “meaningful safeguards or remedies for the
rights of persons situated as (is the plaintiff)” are
available. It has also been held that a Bivens action is
not appropriate in the civil service system or in the
military justice system.
In Frank Vennes v. An Unknown Number of Unidentified
Agents of the United States of America, petitioner Vennes
instituted a Bivens action against agents of the Internal
Revenue Service (IRS) who alleged that he (Vennes)
owed $250,000 in tax liability, instituted a jeopardy
assessment, confiscated Vennes’ business, forced a total
asset sale, and put Vennes out of business, when in fact
he owed not a dime. The U.S. Court of Appeals, Eighth
Circuit, ruled:
The district court dismissed these
claims on the ground that a
taxpayer’s remedies under the
Internal Revenue Code preclude such
a Bivens action. Vennes cites to us no
contrary authority, and we have
found none. Though the Supreme
Court has not addressed this precise
question, it has strongly suggested
that the district court correctly
applied Bivens:
When the design of a
Government program suggests
that Congress has provided
what it considers adequate
remedial mechanisms for
constitutional violations that
may occur in the course of its
administration, we have not
created additional Bivens
remedies.
xxxx
Congress has provided specific and
meaningful remedies for taxpayers
who challenge overzealous tax
assessment and collection activities.
A taxpayer may challenge a jeopardy
assessment both administratively and
judicially, and may sue the
government for a tax refund, and
have authorized taxpayer actions
against the United States to recover
limited damages resulting from
specific types of misconduct by IRS
employees. These carefully crafted
legislative remedies confirm that, in
the politically sensitive realm of
taxation, Congress’s refusal to permit
unrestricted damage action by
taxpayers has not been inadvertent.
Thus, the district court correctly
dismissed Vennes’s Bivens claims
against IRS agents for their tax
assessment and collection activities.
In still another Bivens action, instituted by a taxpayer
against IRS employees for alleged violation of due
process rights concerning a tax dispute, the U.S. District
Court of Minnesota said:
In addition, the (Tax) Code provides
taxpayers with remedies, judicial
otherwise, for correcting and
redressing wrongful acts taken by
IRS employees in connection with
any collection activities. Although
these provisions do not provide
taxpayers with an all-encompassing
remedy for wrongful acts of IRS
personnel, the rights established
under the Code illustrate that it
provides all sorts of rights against the
overzealous officialdom, including,
most fundamentally, the right to sue
the government for a refund if forced
to overpay taxes, and it would make
the collection of taxes chaotic if a
taxpayer could bypass the remedies
provided by Congress simply by
bringing a damage suit against IRS
employees.
400

American jurisprudence obviously validates the
contention of the petitioner.
Finally, we invite attention to Section 227, Republic Act
No. 8424 (Tax Reform Act of 1997), which provides:
Section 227. Satisfaction of Judgment
Recovered Against any Internal
Revenue Officer. – When an action is
brought against any Internal Revenue
officer to recover damages by reason
of any act done in the performance of
official duty, and the Commissioner
is notified of such action in time to
make defense against the same,
through the Solicitor General, any
judgment, damages or costs
recovered in such action shall be
satisfied by the Commissioner, upon
approval of the Secretary of Finance,
or if the same be paid by the person
sued shall be repaid or reimbursed to
him.
No such judgment, damages or costs
shall be paid or reimbursed in behalf
of a person who has acted negligently
or in bad faith, or with willful
oppression.
Because the respondent’s complaint does not impute
negligence or bad faith to the petitioner, any money
judgment by the trial court against her will have to be
assumed by the Republic of the Philippines. As such,
the complaint is in the nature of a suit against the State.
WHEREFORE, premises considered, we GRANT
petitioner’s motion for reconsideration of the June 19,
2007 Decision and DENY respondent’s motion for
reconsideration of the June 25, 2008 Resolution. Civil
Case No. CV-97-341-MK, pending with the Regional
Trial Court of Marikina City, is DISMISSED.
SO ORDERED.
i. Interference in contractual relations
ARTICLE 1314. Any third person who induces
another to violate his contract shall be liable for
damages to the other contracting party. (n)
DAYWALT vs. LA CORPORATION DE LOS
PADRES AGUSTINOS RECOLETOS ET. AL.
G.R. No. 13505, 4 February 1919
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
401
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 certificate 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
certificate 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 fixed 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 certificate was not
yet obtainable and in fact said certificate 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 certificate 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
finally succeeded, upon appeal to the Supreme Court,
in obtaining a decree for specific 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 finally effective in the early part of the year
1914.
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 influence and as cendency 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
influence, 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, finally fixed the rights of the
parties to the property in question. When the Torrens
certificate was finally 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
official 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 first 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.
xxx xxx xxx
The determination of the issue presented in this second
cause of action requires a consideration of two points.
The first 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
specific 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 first 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
officials 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 difficult 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 influence and
promptings of members of the defendant corporation.
But we do not credit the idea that they were in any
degree influenced 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 certificate 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. Wakefield, 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 unjustifiable 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
402
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
confined 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 benefit 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
justification, 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 fide purpose of
benefiting 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
403
used for "the indirect purpose of benefiting 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 sufficient justification 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 film,
let it under a rental contract to the plaintiff Gilchrist for
a specified period of time. In violation of the terms of
this agreement, Cuddy proceeded to turn over the film
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 film in
question in their theater during the period specified 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 toresort 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 field 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
nonfulfillment 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.
xxx xxx xxx
Our conclusion is that the judgment of the trial court
should be affirmed, and it is so ordered, with costs
against the appellant.
404
Arellano, C. J., Torres, Carson, Araullo, Malcolm,
Avanceña and Moir, JJ., concur.
SO PING BUN vs. COURT OF APPEALS, ET AL.
G.R. No. 120554, 21 September 1999.
QUISUMBING, J p:
This petition for certiorari challenges the Decision of the
Court of Appeals dated October 10, 1994, and the
Resolution 2 dated June 5, 1995, in CA-G.R. CV No.
38784. The appellate court affirmed the decision of the
Regional Trial Court of Manila, Branch 35, except for
the award of attorney's fees, as follows:
xxx xxx xxx
The facts are as follows:
In 1963, Tek Hua Trading Co., through its managing
partner, So Pek Giok, entered into lease agreements
with lessor Dee C. Chuan & Sons Inc. (DCCSI). Subjects
of four (4) lease contracts were premises located at Nos.
930, 930-Int., 924-B and 924-C, Soler Street, Binondo,
Manila. Tek Hua used the areas to store its textiles. The
contracts each had a one-year term. They provided that
should the lessee continue to occupy the premises after
the term, the lease shall be on a month-to-month basis.
When the contracts expired, the parties did not renew
the contracts, but Tek Hua continued to occupy the
premises. In 1976, Tek Hua Trading Co. was dissolved.
Later, the original members of Tek Hua Trading Co.
including Manuel C. Tiong, formed Tek Hua
Enterprising Corp., herein respondent corporation.
So Pek Giok, managing partner of Tek Hua Trading,
died in 1986. So Pek Giok's grandson, petitioner So Ping
Bun, occupied the warehouse for his own textile
business, Trendsetter Marketing.
On August 1, 1989, lessor DCCSI sent letters addressed
to Tek Hua Enterprises, informing the latter of the 25%
increase in rent effective September 1, 1989. The rent
increase was later on reduced to 20% effective January
1, 1990, upon other lessees' demand. Again on
December 1, 1990, the lessor implemented a 30% rent
increase. Enclosed in these letters were new lease
contracts for signing. DCCSI warned that failure of the
lessee to accomplish the contracts shall be deemed as
lack of interest on the lessee's part, and agreement to
the termination of the lease. Private respondents did
not answer any of these letters. Still, the lease contracts
were not rescinded.
On March 1, 1991, private respondent Tiong sent a
letter to petitioner, which reads as follows:
March 1, 1991
"Mr. So Ping Bun
930 Soler Street
Binondo, Manila
405
Dear Mr. So,
Due to my closed (sic) business
associate (sic) for three decades with
your late grandfather Mr. So Pek
Giok and late father, Mr. So Chong
Bon, I allowed you temporarily to use
the warehouse of Tek Hua
Enterprising Corp. for several years
to generate your personal business.
Since I decided to go back into textile
business, I need a warehouse
immediately for my stocks.
Therefore, please be advised to vacate
all your stocks in Tek Hua
Enterprising Corp. Warehouse. You
are hereby given 14 days to vacate
the premises unless you have good
reasons that you have the right to
stay. Otherwise, I will be constrained
to take measure to protect my
interest.
Please give this urgent matter your
preferential attention to avoid
inconvenience on your part.
Very truly yours,
(Sgd) Manuel C. Tiong
MANUEL C. TIONG
President"
Petitioner refused to vacate. On March 4, 1992,
petitioner requested formal contracts of lease with
DCCSI in favor of Trendsetter Marketing. So Ping Bun
claimed that after the death of his grandfather, So Pek
Giok, he had been occupying the premises for his textile
business and religiously paid rent. DCCSI acceded to
petitioner's request. The lease contracts in favor of
Trendsetter were executed.
In the suit for injunction, private respondents pressed
for the nullification of the lease contracts between
DCCSI and petitioner. They also claimed damages.
xxx xxx xxx
The foregoing issues involve, essentially, the correct
interpretation of the applicable law on tortuous
conduct, particularly unlawful interference with
contract. We have to begin, obviously, with certain
fundamental principles on torts and damages.
Damage is the loss, hurt, or harm which results from
injury, and damages are the recompense or
compensation awarded for the damage suffered. 6 One
becomes liable in an action for damages for a
nontrespassory invasion of another's interest in the
private use and enjoyment of asset if (a) the other has
property rights and privileges with respect to the use or
enjoyment interfered with, (b) the invasion is
substantial, (c) the defendant's conduct is a legal cause
of the invasion, and (d) the invasion is either intentional
and unreasonable or unintentional and actionable
under general negligence rules.
The elements of tort interference are: (1) existence of a
valid contract; (2) knowledge on the part of the third
person of the existence of contract; and (3) interference
of the third person is without legal justification or
excuse.
A duty which the law of torts is concerned with is
respect for the property of others, and a cause of action
ex delicto may be predicated upon an unlawful
interference by one person of the enjoyment by the
other of his private property. This may pertain to a
situation where a third person induces a party to renege
on or violate his undertaking under a contract. In the
case before us, petitioner's Trendsetter Marketing asked
DCCSI to execute lease contracts in its favor, and as a
result petitioner deprived respondent corporation of
the latter's property right. Clearly, and as correctly
viewed by the appellate court, the three elements of tort
interference above-mentioned are present in the instant
case.
Authorities debate on whether interference may be
justified where the defendant acts for the sole purpose
of furthering his own financial or economic interest.
One view is that, as a general rule, justification for
interfering with the business relations of another exists
where the actor's motive is to benefit himself. Such
justification does not exist where his sole motive is to
cause harm to the other. Added to this, some
authorities believe that it is not necessary that the
interferer's interest outweigh that of the party whose
rights are invaded, and that an individual acts under an
economic interest that is substantial, not merely de
minimis, such that wrongful and malicious motives are
negatived, for he acts in self-protection. Moreover,
justification for protecting one's financial position
should not be made to depend on a comparison of his
economic interest in the subject matter with that of
others. It is sufficient if the impetus of his conduct lies
in a proper business interest rather than in wrongful
motives.
As early as Gilchrist vs. Cuddy, we held that where there
was no malice in the interference of a contract, and the
impulse behind one's conduct lies in a proper business
interest rather than in wrongful motives, a party cannot
be a malicious interferer. Where the alleged interferer is
financially interested, and such interest motivates his
conduct, it cannot be said that he is an officious or
malicious intermeddler.
In the instant case, it is clear that petitioner So Ping Bun
prevailed upon DCCSI to lease the warehouse to his
enterprise at the expense of respondent corporation.
Though petitioner took interest in the property of
respondent corporation and benefited from it, nothing
on record imputes deliberate wrongful motives or
malice on him.
Section 1314 of the Civil Code categorically provides
also that, "Any third person who induces another to
violate his contract shall be liable for damages to the
other contracting party." Petitioner argues that damage
is an essential element of tort interference, and since the
trial court and the appellate court ruled that private
respondents were not entitled to actual, moral or
exemplary damages, it follows that he ought to be
absolved of any liability, including attorney's fees.
It is true that the lower courts did not award damages,
but this was only because the extent of damages was
not quantifiable. We had a similar situation in Gilchrist,
where it was difficult or impossible to determine the
extent of damage and there was nothing on record to
serve as basis thereof. In that case we refrained from
awarding damages. We believe the same conclusion
applies in this case.
While we do not encourage tort interferers seeking their
economic interest to intrude into existing contracts at
the expense of others, however, we find that the
conduct herein complained of did not transcend the
limits forbidding an obligatory award for damages in
the absence of any malice. The business desire is there
to make some gain to the detriment of the contracting
parties. Lack of malice, however, precludes damages.
But it does not relieve petitioner of the legal liability for
entering into contracts and causing breach of existing
ones. The respondent appellate court correctly
confirmed the permanent injunction and nullification of
the lease contracts between DCCSI and Trendsetter
Marketing, without awarding damages. The injunction
saved the respondents from further damage or injury
caused by petitioner's interference.
xxx xxx xxx
WHEREFORE, the petition is hereby DENIED. The
assailed Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 38784 are hereby
AFFIRMED, with MODIFICATION that the award of
attorney's fees is reduced from two hundred thousand
(P200,000.00) to one hundred thousand (P100,000.00)
pesos. No pronouncement as to costs.
SO ORDERED.
Bellosillo, Mendoza and Buena, JJ., concur.
LAGON vs. COURT OF APPEALS, ET AL.
G.R. No. 119107, 18 March 2005, 453 SCRA 616
CORONA, J p:
On June 23, 1982, petitioner Jose Lagon purchased from
the estate of Bai Tonina Sepi, through an intestate court,
1 two parcels of land located at Tacurong, Sultan
406
Kudarat. A few months after the sale, private
respondent Menandro Lapuz filed a complaint for torts
and damages against petitioner before the Regional
Trial Court (RTC) of Sultan Kudarat.
In the complaint, private respondent, as then plaintiff,
claimed that he entered into a contract of lease with the
late Bai Tonina Sepi Mengelen Guiabar over three
parcels of land (the "property") in Sultan Kudarat,
Maguindanao beginning 1964. One of the provisions
agreed upon was for private respondent to put up
commercial buildings which would, in turn, be leased
to new tenants. The rentals to be paid by those tenants
would answer for the rent private respondent was
obligated to pay Bai Tonina Sepi for the lease of the
land. In 1974, the lease contract ended but since the
construction of the commercial buildings had yet to be
completed, the lease contract was allegedly renewed.
When Bai Tonina Sepi died, private respondent started
remitting his rent to the court-appointed administrator
of her estate. But when the administrator advised him
to stop collecting rentals from the tenants of the
buildings he constructed, he discovered that petitioner,
representing himself as the new owner of the property,
had been collecting rentals from the tenants. He thus
filed a complaint against the latter, accusing petitioner
of inducing the heirs of Bai Tonina Sepi to sell the
property to him, thereby violating his leasehold rights
over it.
In his answer to the complaint, petitioner denied that
he induced the heirs of Bai Tonina to sell the property
to him, contending that the heirs were in dire need of
money to pay off the obligations of the deceased. He
also denied interfering with private respondent's
leasehold rights as there was no lease contract covering
the property when he purchased it; that his personal
investigation and inquiry revealed no claims or
encumbrances on the subject lots.
Petitioner claimed that before he bought the property,
he went to Atty. Benjamin Fajardo, the lawyer who
allegedly notarized the lease contract between private
respondent and Bai Tonina Sepi, to verify if the parties
indeed renewed the lease contract after it expired in
1974. Petitioner averred that Atty. Fajardo showed him
four copies of the lease renewal but these were all
unsigned. To refute the existence of a lease contract,
petitioner presented in court a certification from the
Office of the Clerk of Court confirming that no record
of any lease contract notarized by Atty. Fajardo had
been entered into their files. Petitioner added that he
only learned of the alleged lease contract when he was
informed that private respondent was collecting rent
from the tenants of the building.
Finding the complaint for tortuous interference to be
unwarranted, petitioner filed his counterclaim and
prayed for the payment of actual and moral damages.
407
On July 29, 1986, the court a quo found for private
respondent (plaintiff below):
xxx xxx xxx
Petitioner appealed the judgment to the Court of
Appeals. In a decision dated January 31, 1995, 4 the
appellate court modified the assailed judgment of the
trial court as follows:
xxx xxx xxx
The core issue here is whether the purchase by
petitioner of the subject property, during the supposed
existence of private respondent's lease contract with the
late Bai Tonina Sepi, constituted tortuous interference
for which petitioner should be held liable for damages.
The Court, in the case of So Ping Bun v. Court of Appeals
laid down the elements of tortuous interference with
contractual relations: (a) existence of a valid contract;
(b) knowledge on the part of the third person of the
existence of the contract and (c) interference of the third
person without legal justification or excuse. In that case,
petitioner So Ping Bun occupied the premises which the
corporation of his grandfather was leasing from private
respondent, without the knowledge and permission of
the corporation. The corporation, prevented from using
the premises for its business, sued So Ping Bun for
tortuous interference.
As regards the first element, the existence of a valid
contract must be duly established. To prove this,
private respondent presented in court a notarized copy
of the purported lease renewal. While the contract
appeared as duly notarized, the notarization thereof,
however, only proved its due execution and delivery
but not the veracity of its contents. Nonetheless, after
undergoing the rigid scrutiny of petitioner's counsel
and after the trial court declared it to be valid and
subsisting, the notarized copy of the lease contract
presented in court appeared to be incontestable proof
that private respondent and the late Bai Tonina Sepi
actually renewed their lease contract. Settled is the rule
that until overcome by clear, strong and convincing
evidence, a notarized document continues to be prima
facie evidence of the facts that gave rise to its execution
and delivery.
The second element, on the other hand, requires that
there be knowledge on the part of the interferer that the
contract exists. Knowledge of the subsistence of the
contract is an essential element to state a cause of action
for tortuous interference. A defendant in such a case
cannot be made liable for interfering with a contract he
is unaware of. While it is not necessary to prove actual
knowledge, he must nonetheless be aware of the facts
which, if followed by a reasonable inquiry, will lead to
a complete disclosure of the contractual relations and
rights of the parties in the contract.
In this case, petitioner claims that he had no knowledge
of the lease contract. His sellers (the heirs of Bai Tonina
Sepi) likewise allegedly did not inform him of any
existing lease contract.
After a careful perusal of the records, we find the
contention of petitioner meritorious. He conducted his
own personal investigation and inquiry, and unearthed
no suspicious circumstance that would have made a
cautious man probe deeper and watch out for any
conflicting claim over the property. An examination of
the entire property's title bore no indication of the
leasehold interest of private respondent. Even the
registry of property had no record of the same.
Assuming ex gratia argumenti that petitioner knew of
the contract, such knowledge alone was not sufficient to
make him liable for tortuous interference. Which brings
us to the third element. According to our ruling in So
Ping Bun, petitioner may be held liable only when there
was no legal justification or excuse for his action or
when his conduct was stirred by a wrongful motive. To
sustain a case for tortuous interference, the defendant
must have acted with malice or must have been driven
by purely impious reasons to injure the plaintiff. In
other words, his act of interference cannot be justified.
Furthermore, the records do not support the allegation
of private respondent that petitioner induced the heirs
of Bai Tonina Sepi to sell the property to him. The word
"induce" refers to situations where a person causes
another to choose one course of conduct by persuasion
or intimidation. 19 The records show that the decision
of the heirs of the late Bai Tonina Sepi to sell the
property was completely of their own volition and that
petitioner did absolutely nothing to influence their
judgment. Private respondent himself did not proffer
any evidence to support his claim. In short, even
assuming that private respondent was able to prove the
renewal of his lease contract with Bai Tonina Sepi, the
fact was that he was unable to prove malice or bad faith
on the part of petitioner in purchasing the property.
Therefore, the claim of tortuous interference was never
established.
In So Ping Bun, the Court discussed whether
interference can be justified at all if the interferer acts
for the sole purpose of furthering a personal financial
interest, but without malice or bad faith. As the Court
explained it:
. . ., as a general rule, justification for
interfering with the business relations
of another exists where the actor's
motive is to benefit himself. Such
justification does not exist where the
actor's motive is to cause harm to the
other. Added to this, some authorities
believe that it is not necessary that
the interferer's interest outweigh that
of the party whose rights are
invaded, and that an individual acts
under an economic interest that is
substantial, not merely de minimis,
such that wrongful and malicious
motives are negatived, for he acts in
self-protection. Moreover,
justification for protecting one's
financial position should not be made
to depend on a comparison of his
economic interest in the subject
matter with that of the others. It is
sufficient if the impetus of his
conduct lies in a proper business
interest rather than in wrongful
motives.
The foregoing disquisition applies squarely to the case
at bar. In our view, petitioner's purchase of the subject
property was merely an advancement of his financial or
economic interests, absent any proof that he was
enthused by improper motives. In the very early case of
Gilchrist v. Cuddy, 21 the Court declared that a person
is not a malicious interferer if his conduct is impelled
by a proper business interest. In other words, a
financial or profit motivation will not necessarily make
a person an officious interferer liable for damages as
long as there is no malice or bad faith involved.
In sum, we rule that, inasmuch as not all three elements
to hold petitioner liable for tortuous interference are
present, petitioner cannot be made to answer for
private respondent's losses.
This case is one of damnun absque injuria or damage
without injury. "Injury" is the legal invasion of a legal
right while "damage" is the hurt, loss or harm which
results from the injury. In BPI Express Card Corporation
v. Court of Appeals, the Court turned down the claim for
damages of a cardholder whose credit card had been
cancelled by petitioner corporation after several
defaults in payment. We held there that there can be
damage without injury where the loss or harm is not
the result of a violation of a legal duty. In that instance,
the consequences must be borne by the injured person
alone since the law affords no remedy for damages
resulting from an act which does not amount to legal
injury or wrong. Indeed, lack of malice in the conduct
complained of precludes recovery of damages.
With respect to the attorney's fees awarded by the
appellate court to private respondent, we rule that it
cannot be recovered under the circumstances.
According to Article 2208 of the Civil Code, attorney's
fees may be awarded only when it has been stipulated
upon or under the instances provided therein. 26
Likewise, being in the concept of actual damages, the
award for attorney's fees must have clear, factual and
legal bases 27 which, in this case, do not exist.
Regarding the dismissal of petitioner's counterclaim for
actual and moral damages, the appellate court affirmed
the assailed order of the trial court because it found no
basis to grant the amount of damages prayed for by
408
petitioner. We find no reason to reverse the trial court
and the Court of Appeals. Actual damages are those
awarded in satisfaction of, or in recompense for, loss or
injury sustained. To be recoverable, they must not only
be capable of proof but must actually be proved with a
reasonable degree of certainty. Petitioner was unable to
prove that he suffered loss or injury, hence, his claim
for actual damages must fail. Moreover, petitioner's
prayer for moral damages was not warranted as moral
damages should result from the wrongful act of a
person. The worries and anxieties suffered by a party
hailed to court litigation are not compensable.
With the foregoing discussion, we no longer deem it
necessary to delve into the issue of laches.
WHEREFORE, premises considered, the petition is
hereby GRANTED. The assailed decision of the Court
of Appeals is hereby REVERSED and SET ASIDE.
No costs.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Carpio-Morales and
Garcia, JJ., concur.
VI. DAMAGES
1. CONCEPT/KINDS
ARTICLE 2195. The provisions of this Title shall be
respectively applicable to all obligations mentioned
in Article 1157.
ARTICLE 2196. The rules under this Title are without
prejudice to special provisions on damages
formulated elsewhere in this Code. Compensation for
workmen and other employees in case of death,
injury or illness is regulated by special laws. Rules
governing damages laid down in other laws shall be
observed insofar as they are not in conflict with this
Code.
ARTICLE 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.
ARTICLE 2198. The principles of the general law on
damages are hereby adopted insofar as they are not
inconsistent with this Code.
FILINVEST CREDIT CORPORATION vs.
THE INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 65935, 30 September 1988, 166 SCRA 155
SARMIENTO, J p:
409
In this special civil action for certiorari, Filinvest Credit
Corporation implores us to declare the nullity of the
Decision dated September 30, 1983 and the Resolution
dated December 16, 1983 of the Intermediate Appellate
Court (now Court of Appeals) which were allegedly
issued with grave abuse of discretion, amounting to
lack of jurisdiction, or in excess of jurisdiction, and with
patent denial of due process.
The facts as found by the trial court are as follows:
This is a case for damages filed by Nestor B. Suñga, Jr.,
businessman and owner of the NBS Machineries
Marketing and the NAP-NAP Transit. Plaintiff alleged
that he purchased a passenger minibus Mazda from the
Motorcenter, Inc. at Calasiao, Pangasinan on March 21,
1978 and for which he executed a promissory note
(Exhibit "B") to cover the amount of P62,592.00 payable
monthly in the amount of P2,608.00 for 24 months due
and payable the 1st day of each month starting May 1,
1978 thru and inclusive of May 1, 1980. On the same
date, however, a chattel mortgage was executed by him
in favor of the Motorcenter, Inc. (Exhibit "A"). The
Chattel Mortgage and Assignment was assigned to the
Filinvest Credit Corporation with the conformity of the
plaintiff. Nestor Suñga claimed that on October 21,
1978, the minibus was seized by two (2) employees of
the defendant Filinvest Credit Corporation upon orders
of the branch manager Mr. Gaspar de los Santos,
without any receipt, who claimed that he was
delinquent in the payments of his vehicle. The plaintiff
reported the loss to the PC (Exhibit "Y") and after
proper verification from the office of the Filinvest, the
said vehicle was recovered from the Crisologo
Compound which was later released by Rosario
Fronda, Assistant Manager of the Filinvest, and Arturo
Balatbat as caretaker of the compound. The police
blotter of the Integrated National Police of Dagupan
City shows that Nestor Suñga and T/Sgt. Isidro Pascual
of the 153rd PC Company sought the assistance of the
Dagupan police and one Florence Onia of the Filinvest
explained that the minibus was confiscated because the
balance was already past due. After verification that his
accounts are all in order, Florence Onia admitted it was
their fault. The motor vehicle was returned to the
plaintiff upon proper receipt.
After trial, the court a quo rendered its decision, the
decretal portion of which reads:
WHEREFORE, premises considered, this Court hereby
renders judgment as follows, to wit:
(1) ORDERING the defendant Filinvest Credit
Corporation to pay the plaintiff Nestor Suñga, Jr.
the following damages, to wit:
(a) Moral Damages P30,000.00
(b) Loss on Income of the minibus for three days
600.00
(c) Actual damages 500.00
(d) Litigation expenses 5,000.00
 (e) Attorney's Fees 10,000.00
(2) And to pay the costs.
SO ORDERED.
Dissatisfied with the aforecited decision, the defendant
(petitioner herein), interposed a timely appeal with the
respondent court. On September 30, 1983, the latter
promulgated its decision affirming in toto the decision
of the trial court dated July 17, 1981, "except with
regard to the moral damages which, under the
circumstances of the accounting error incurred by
Filinvest, is hereby increased from P30,000.00 to
P50,000.00." As the reconsideration of said decision
proved futile in view of its denial by the respondent
court in its resolution of December 16, 1983, the
petitioners come to us thru this instant petition for
certiorari under Rule 65 of the Rules of Court.
The petitioner alleges the following errors:
xxx xxx xxx
The various assignments of error may be synthesized
into the sole issue of: Whether or not the respondent
court a) in allegedly ignoring the various assigned
errors in petitioner's brief; b) in resolving issues not
raised at the trial and on appeal; c) in increasing the
amount of moral damages; and (d) in adhering to its
decision in Edilberto Rebosura et al. vs. Rogaciano
Oropeza, CA-G.R. No. 63048-R, as well as to Batasan
Bill No. 3075, which is yet to be enacted into law, acted
with grave abuse of discretion amounting to lack of
jurisdiction.
xxx xxx xxx
After carefully considering and weighing all the
arguments of both protagonists, we hold that the
respondent court committed a grave abuse of discretion
in increasing extravagantly the award of moral
damages and in granting litigation expenses. In those
respects, the petition is granted and to that extent the
questioned decision is modified.
There is no gainsaying that the plaintiff-appellee
(respondent Suñga) did not appeal from the decision of
the court a quo which awarded him the sum of
P30,000.00 by way of moral damages. "Well settled is
the rule in this jurisdiction that whenever an appeal is
taken in a civil case an appellee who has not himself
appealed cannot obtain from the appellate court any
affirmative relief other than the ones granted in the
decision of the court below." Verily the respondent
court disregarded such a well settled rule when it
increased the award for moral damages from P30,000.00
to P50,000.00, notwithstanding the fact that the private
respondent did not appeal from the judgment of the
trial court, an act indicative of grave abuse of discretion
amounting to lack of jurisdiction.
Certiorari lies when a court has acted without or in
excess of jurisdiction or with grave abuse of discretion.
"Without jurisdiction" means that the court acted with
absolute want of jurisdiction. There is "excess of
jurisdiction" where the court has jurisdiction but has
transcended the same or acted without any statutory
authority (Leung Ben vs. O'Brien, 38 Phils., 182; Salvador
Campos y CIA vs. Del Rosario, 41 Phil., 45). "Grave abuse
of discretion" implies such capricious and whimsical
exercise of judgment as is equivalent to lack of
jurisdiction (Abad Santos vs. Province of Tarlac, 38 Off.
Gaz., 83.) or in other words, where the power is
exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and it must be so patent
and gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined or to
act at all in contemplation of law. (Talavera-Luna vs.
Nable, 38 Off. Gaz., 62).
Or, as held in the recent case of Robert Young vs. Julio A.
Sulit, Jr., "(F)or certiorari to lie, there must be
capricious, arbitrary, and whimsical exercise of power,
the very antithesis of the judicial prerogative in
accordance with centuries of civil law and common law
tradition."
We had occasion to state that "there is no hard and fast
rule in the determination of what would be a fair
amount of moral damages, since each case must be
governed by its own peculiar circumstances." Be that
as it may and in amplification of this generalization, we
set the criterion that "in the case of moral damages, the
yardstick should be that the "amount awarded should
not be palpably and scandalously excessive" so as to
indicate that it was the result of passion, prejudice or
corruption on the part of the trial court . . . Moreover,
the actual losses sustained by the aggrieved parties and
the gravity of the injuries must be considered in
arriving at reasonable levels . . ."
There is no dispute that the private respondent, a
businessman and owner of the NBS Machineries
Marketing and NAPNAP Transit, is entitled to moral
damages due to the unwarranted seizure of the minibus
Mazda, allegedly because he was delinquent in the
payment of its monthly amortizations, which as stated
above, turned out to be incorrect. No doubt such
intent tainted private respondent Suñga's reputation in
the business community, thus causing him mental
anguish, serious anxiety, besmirched reputation,
wounded feelings, moral shock, and social humiliation.
Considering, however, that respondent Suñga was
dispossessed of his motor vehicle for barely three days,
that is, from October 21, 1978 to October 23, 1978,
possession of which was restored to him soon after the
accounting errors were ironed out, we find that the
award of moral damages even in the sum of P30,000.00
is excessive for it must be emphasized that "damages
are not intended to enrich the complainant at the
expense of a defendant. They are awarded only to
enable the injured parties to obtain means, diversions
or amusements that will serve to alleviate the moral
410
sufferings the injured parties have undergone by reason
of defendant's culpable action. In other words, the
award of moral damages is aimed at a restoration
within the limits of the possible, of the spiritual status
quo ante; and therefore it must be proportionate to the
suffering inflicted." Moreover, "(M)oral damages
though not incapable of pecuniary estimations, are in
the category of an award designed to compensate the
claimant for actual injury suffered and not to impose a
penalty on the wrongdoer."
It behooves us therefore to reiterate the caveat to lower
courts "to guard against the award of exorbitant
damages that are way out of proportion to the
environmental circumstances of a case and which time
and again, this Court has reduced or eliminated.
Judicial discretion granted to the courts in the
assessment of damages must always be exercised with
balanced restraints and measured objectivity."
We do not agree with private respondent's argument
that the increase in the award of moral damages is
justified by the prayer in its brief, to wit: FURTHER
REMEDIES AND RELIEFS DEEMED JUST AND
EQUITABLE UNDER AND WITHIN THE PREMISES
ARE PRAYED FOR. Such statement is usually extant in
practically all pleadings as a final statement; it is
rhetorical flourish as it were and could not be a
substitute for appeal as required by the rules for "the
appellee cannot seek modification or reversal of the
judgment or affirmative relief, unless he has also
appealed therefrom."
With regard to the award of litigation expenses in the
sum of P5,000.00, the same is hereby disallowed, there
being no price for litigation.
WHEREFORE, the petition is partially GRANTED. The
award of moral damages is REDUCED to P10,000.00
and the grant of litigation expenses is ELIMINATED.
The rest of the judgment is AFFIRMED. Without costs.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, and Regalado,
JJ., concur.
Padilla, J., took no part.
SPOUSES CUSTODIO vs.
COURT OF APPEALS, ET AL.
G.R. No. 116100, 9 February 1996, 253 SCRA 483
REGALADO, J p:
This petition for review on certiorari assails the decision
of respondent Court of Appeals in CA-G.R. CV No.
29115, promulgated on November 10, 1993, which
affirmed with modification the decision of the trial
court, as well as its resolution dated July 8, 1994
denying petitioner's motion for reconsideration.
411
On August 26, 1982, Civil Case No. 47466 for the grant
of an easement of right of way was filed by Pacifico
Mabasa against Cristino Custodio, Brigida R. Custodio,
Rosalina R. Morato, Lito Santos and Maria Cristina C.
Santos before the Regional Trial Court of Pasig and
assigned to Branch 22 thereof.
The generative facts of the case, as synthesized by the
trial court and adopted by the Court of Appeals, are as
follows:
Perusing the record, this Court finds that the original
plaintiff Pacifico Mabasa died during the pendency of
this case and was substituted by Ofelia Mabasa, his
surviving spouse [and children].
The plaintiff owns a parcel of land with a two-door
apartment erected thereon situated at Interior P. Burgos
St., Palingon, Tipas, Tagig, Metro Manila. The plaintiff
was able to acquire said property through a contract of
sale with spouses Mamerto Rayos and Teodora
Quintero as vendors last September 1981. Said property
may be described to be surrounded by other
immovables pertaining to defendants herein. Taking P.
Burgos Street as the point of reference, on the left side,
going to plaintiff's property, the row of houses will be
as follows: That of defendants Cristino and Brigida
Custodio, then that of Lito and Maria Cristina Santos
and then that of Ofelia Mabasa. On the right side (is)
that of defendant Rosalina Morato and then a Septic
Tank (Exhibit "D"). As an access to P. Burgos Street
from plaintiff's property, there are two possible
passageways. The first passageway is approximately
one meter wide and is about 20 meters distan(t) from
Mabasa's residence to P. Burgos Street. Such path is
passing in between the previously mentioned row of
houses. The second passageway is about 3 meters in
width and length from plaintiff Mabasa's residence to
P. Burgos Street; it is about 26 meters. In passing thru
said passageway, a less than a meter wide path through
the septic tank and with 5-6 meters in length has to be
traversed.
When said property was purchased by Mabasa, there
were tenants occupying the premises and who were
acknowledged by plaintiff Mabasa as tenants.
However, sometime in February, 1982, one of said
tenants vacated the apartment and when plaintiff
Mabasa went to see the premises, he saw that there had
been built an adobe fence in the first passageway
making it narrower in width. Said adobe fence was first
constructed by defendants Santoses along their
property which is also along the first passageway.
Defendant Morato constructed her adobe fence and
even extended said fence in such a way that the entire
passageway was enclosed (Exhibit "I-Santoses and
Custodios, Exh. "D" for plaintiff, Exhs. "1-C", "1-D" and
"1-E") And it was then that the remaining tenants of
said apartment vacated the area. Defendant Ma.
Cristina Santos testified that she constructed said fence
because there was an incident when her daughter was
dragged by a bicycle pedalled by a son of one of the
tenants in said apartment along the first passageway.
She also mentioned some other inconveniences of
having (at) the front of her house a pathway such as
when some of the tenants were drunk and would bang
their doors and windows. Some of their footwear were
even lost. . . . (Italics in original text; corrections in
parentheses supplied)
On February 27, 1990, a decision was rendered by the
trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as follows:
1) Ordering defendants Custodios and Santoses to
give plaintiff permanent access — ingress and
egress, to the public street;
2) Ordering the plaintiff to pay defendants Custodios
and Santoses the sum of Eight Thousand Pesos
(P8,000) as indemnity for the permanent use of the
passageway.
The parties to shoulder their respective litigation
expenses.
Not satisfied therewith, therein plaintiff represented by
his heirs, herein private respondents, went to the Court
of Appeals raising the sole issue of whether or not the
lower court erred in not awarding damages in their
favor. On November 10, 1993, as earlier stated, the
Court of Appeals rendered its decision affirming the
judgment of the trial court with modification, the
decretal portion of which disposes as follows:
WHEREFORE, the appealed decision
of the lower court is hereby
AFFIRMED WITH MODIFICATION
only insofar as the herein grant of
damages to plaintiffs-appellants. The
Court hereby orders defendants-
appellees to pay plaintiffs-appellants
the sum of Sixty Five Thousand
(P65,000) Pesos as Actual Damages,
Thirty Thousand (P30,000) Pesos as
Moral Damages, and Ten Thousand
(P10,000) Pesos as Exemplary
Damages. The rest of the appealed
decision is affirmed to all respects.
On July 8, 1994, the Court of Appeals denied
petitioner's motion for reconsideration. Petitioners then
took the present recourse to us, raising two issues,
namely, whether or not the grant of right of way to
herein private respondents is proper, and whether or
not the award of damages is in order.
xxx xxx xxx
However, with respect to the second issue, we agree
with petitioners that the Court of Appeals erred in
awarding damages in favor of private respondents. The
award of damages has no substantial legal basis. A
reading of the decision of the Court of Appeals will
show that the award of damages was based solely on
the fact that the original plaintiff, Pacifico Mabasa,
incurred losses in the form of unrealized rentals when
the tenants vacated the leased premises by reason of the
closure of the passageway.
However, the mere fact that the plaintiff suffered losses
does not give rise to a right to recover damages. To
warrant the recovery of damages, there must be both a
right of action for a legal wrong inflicted by the
defendant, and damage resulting to the plaintiff
therefrom. Wrong without damage, or damage without
wrong, does not constitute a cause of action, since
damages are merely part of the remedy allowed for the
injury caused by a breach or wrong.
There is a material distinction between damages and
injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results from the
injury, and damages are the recompense or
compensation awarded for the damage suffered. Thus,
there can be damage without injury in those instances
in which the loss or harm was not the result of a
violation of a legal duty. These situations are often
called damnum absque injuria.
In order that a plaintiff may maintain an action for the
injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the
defendant owed to the plaintiff — a concurrence of
injury to the plaintiff and legal responsibility by the
person causing it. The underlying basis for the award
of tort damages is the premise that an individual was
injured in contemplation of law. Thus, there must first
be the breach of some duty and the imposition of
liability for that breach before damages may be
awarded; it is not sufficient to state that there should be
tort liability merely because the plaintiff suffered some
pain and suffering.
Many accidents occur and many injuries are inflicted by
acts or omissions which cause damage or loss to
another but which violate no legal duty to such other
person, and consequently create no cause of action in
his favor. In such cases, the consequences must be
borne by the injured person alone. The law affords no
remedy for damages resulting from an act which does
not amount to a legal injury or wrong.
In other words, in order that the law will give redress
for an act causing damage, that act must be not only
hurtful, but wrongful. There must be damnum et injuria.
If, as may happen in many cases, a person sustains
actual damage, that is, harm or loss to his person or
property, without sustaining any legal injury, that is, an
act or omission which the law does not deem an injury,
the damage is regarded as damnum absque injuria.
In the case at bar, although there was damage, there
was no legal injury. Contrary to the claim of private
respondents, petitioners could not be said to have
violated the principle of abuse of right. In order that the
412
principle of abuse of right provided in Article 21 of the
Civil Code can be applied, it is essential that the
following requisites concur: (1) The defendant should
have acted in a manner that is contrary to morals, good
customs or public policy; (2) The acts should be willful;
and (3) There was damage or injury to the plaintiff.
The act of petitioners in constructing a fence within
their lot is a valid exercise of their right as owners,
hence not contrary to morals, good customs or public
policy. The law recognizes in the owner the right to
enjoy and dispose of a thing, without other limitations
than those established by law. 16 It is within the right of
petitioners, as owners, to enclose and fence their
property. Article 430 of the Civil Code provides that
"(e)very owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to
servitudes constituted thereon."
At the time of the construction of the fence, the lot was
not subject to any servitudes. There was no easement of
way existing in favor of private respondents, either by
law or by contract. The fact that private respondents
had no existing right over the said passageway is
confirmed by the very decision of the trial court
granting a compulsory right of way in their favor after
payment of just compensation. It was only that decision
which gave private respondents the right to use the
said passageway after payment of the compensation
and imposed a corresponding duty on petitioners not to
interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an
absolute right over their property and their act of
fencing and enclosing the same was an act which they
may lawfully perform in the employment and exercise
of said right. To repeat, whatever injury or damage may
have been sustained by private respondents by reason
of the rightful use of the said land by petitioners is
damnum absque injuria.
A person has a right to the natural use and enjoyment
of his own property, according to his pleasure, for all
the purposes to which such property is usually applied.
As a general rule, therefore, there is no cause of action
for acts done by one person upon his own property in a
lawful and proper manner, although such acts
incidentally cause damage or an unavoidable loss to
another, as such damage or loss is damnum absque
injuria. When the owner of property makes use thereof
in the general and ordinary manner in which the
property is used, such as fencing or enclosing the same
as in this case, nobody can complain of having been
injured, because the inconvenience arising from said
use can be considered as a mere consequence of
community life.
The proper exercise of a lawful right cannot constitute a
legal wrong for which an action will lie, although the
act may result in damage to another, for no legal right
has been invaded. One may use any lawful means to
413
accomplish a lawful purpose and though the means
adopted may cause damage to another, no cause of
action arises in the latter's favor. Any injury or damage
occasioned thereby is damnum absque injuria. The
courts can give no redress for hardship to an individual
resulting from action reasonably calculated to achieve a
lawful end by lawful means.
WHEREFORE, under the compulsion of the foregoing
premises, the appealed decision of respondent Court of
Appeals is hereby REVERSED and SET ASIDE and the
judgment of the trial court is correspondingly
REINSTATED.
SO ORDERED.
Romero and Puno, JJ., concur.
Mendoza, J., took no part.
2. ACTUAL/COMPENSATORY DAMAGES
ARTICLE 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.
ARTICLE 2200. Indemnification for damages shall
comprehend not only the value of the loss suffered,
but also that of the profits which the obligee failed to
obtain. (1106)
ARTICLE 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in good
faith is liable shall be those that are the natural and
probable consequences of the breach of the
obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude,
the obligor shall be responsible for all damages which
may be reasonably attributed to the non-performance
of the obligation. (1107a)
ARTICLE 2202. In crimes and quasi-delicts, the
defendant shall be liable for all damages which are
the natural and probable consequences of the act or
omission complained of. It is not necessary that such
damages have been foreseen or could have reasonably
been foreseen by the defendant.
ARTICLE 2203. The party suffering loss or injury
must exercise the diligence of a good father of a
family to minimize the damages resulting from the act
or omission in question.
ARTICLE 2204. In crimes, the damages to be
adjudicated may be respectively increased or lessened
according to the aggravating or mitigating
circumstances.
ARTICLE 2205. Damages may be recovered:
(1) For loss or impairment of earning capacity in cases
of temporary or permanent personal injury;
(2) For injury to the plaintiff's business standing or
commercial credit.
ARTICLE 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. In addition:
(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;
(2) If the deceased was obliged to give support
according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's
inheritance by the law of testate or intestate
succession, may demand support from the person
causing the death, for a period not exceeding five
years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate
descendants and ascendants of the deceased may
demand moral damages for mental anguish by reason
of the death of the deceased.
ARTICLE 2207. If the plaintiff's property has been
insured, and he has received indemnity from the
insurance company for the injury or loss arising out
of the wrong or breach of contract complained of, the
insurance company shall be subrogated to the rights
of the insured against the wrongdoer or the person
who has violated the contract. If the amount paid by
the insurance company does not fully cover the injury
or loss, the aggrieved party shall be entitled to recover
the deficiency from the person causing the loss or
injury.
ARTICLE 2208. In the absence of stipulation,
attorney's fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
(3) In criminal cases of malicious prosecution against
the plaintiff;
(4) In case of a clearly unfounded civil action or
proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident
bad faith in refusing to satisfy the plaintiff's
plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household
helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's
compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability
arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just
and equitable that attorney's fees and expenses of
litigation should be recovered.
In all cases, the attorney's fees and expenses of
litigation must be reasonable.
ARTICLE 2209. If the obligation consists in the
payment of a sum of money, and the debtor incurs in
delay, the indemnity for damages, there being no
stipulation to the contrary, shall be the payment of the
interest agreed upon, and in the absence of
stipulation, the legal interest, which is six per cent per
annum. (1108)
ARTICLE 2210. Interest may, in the discretion of the
court, be allowed upon damages awarded for breach
of contract.
ARTICLE 2211. In crimes and quasi-delicts, interest as
a part of the damages may, in a proper case, be
adjudicated in the discretion of the court.
ARTICLE 2212. Interest due shall earn legal interest
from the time it is judicially demanded, although the
obligation may be silent upon this point. (1109a)
ARTICLE 2213. Interest cannot be recovered upon
unliquidated claims or damages, except when the
demand can be established with reasonably certainty.
ARTICLE 2214. In quasi-delicts, the contributory
negligence of the plaintiff shall reduce the damages
that he may recover.
ARTICLE 2215. In contracts, quasi-contracts, and
quasi-delicts, the court may equitably mitigate the
damages under circumstances other than the case
referred to in the preceding article, as in the following
instances:
(1) That the plaintiff himself has contravened the
terms of the contract;
414
(2) That the plaintiff has derived some benefit as a
result of the contract;
(3) In cases where exemplary damages are to be
awarded, that the defendant acted upon the
advice of counsel;
(4) That the loss would have resulted in any event;
(5) That since the filing of the action, the defendant
has done his best to lessen the plaintiff's loss or
injury.
a. In General
PNOC SHIPPING AND TRANSPORT
CORPORATION vs. COURT OF APPEALS, ET AL.
G.R. No. 107518, 8 October 1998, 297 SCRA 402
ROMERO, J p:
A party is entitled to adequate compensation only for
such pecuniary loss actually suffered and duly proved.
Indeed, basic is the rule that to recover actual damages,
the amount of loss must not only be capable of proof
but must actually be proven with a reasonable degree
of certainty, premised upon competent proof or best
evidence obtainable of the actual amount thereof. The
claimant is duty-bound to point out specific facts that
afford a basis for measuring whatever compensatory
damages are borne. A court cannot merely rely on
speculations, conjectures, or guesswork as to the fact
and amount of damages as well as hearsay or
uncorroborated testimony whose truth is suspect. 6
Such are the jurisprudential precepts that the Court
now applies in resolving the instant petition.
The records disclose that in the early morning of
September 21, 1977, the M/V Maria Efigenia XV ,
owned by private respondent Maria Efigenia Fishing
Corporation, was navigating the waters near Fortune
Island in Nasugbu, Batangas on its way to Navotas,
Metro Manila when it collided with the vessel
Petroparcel which at the time was owned by the Luzon
Stevedoring Corporation (LSC).
After investigation was conducted by the Board of
Marine Inquiry, Philippine Coast Guard Commandant
Simeon N. Alejandro rendered a decision finding the
Petroparcel at fault. Based on this finding by the Board
and after unsuccessful demands on petitioner, private
respondent sued the LSC and the Petroparcel captain,
Edgardo Doruelo, before the then Court of First
Instance of Caloocan City, paying thereto the docket fee
of one thousand two hundred fifty-two pesos
(P1,252.00) and the legal research fee of two pesos
(P2.00). In particular, private respondent prayed for an
award of P692,680.00, allegedly representing the value
of the fishing nets, boat equipment and cargoes of M/V
Maria Efgenia XV, with interest at the legal rate plus
25% thereof as attorney's fees. Meanwhile, during the
pendency of the case, petitioner PNOC Shipping and
415
Transport Corporation sought to be substituted in place
of LSC as it had already acquired ownership of the
Petroparcel.
xxx xxx xxx
Subsequently, the complaint was further amended to
include petitioner as a defendant which the lower court
granted in its order of September 16, 1985. After
petitioner had filed its answer to the second amended
complaint, on February 5, 1987, the lower court issued a
pre-trial order containing, among other things, a
stipulations of facts, to wit:
"1. On 21 September 1977, while the fishing boat 'M/V
MARIA EFIGENIA' owned by plaintiff was
navigating in the vicinity of Fortune Island in
Nasugbu, Batangas, on its way to Navotas, Metro
Manila, said fishing boat was hit by the LSCO
tanker 'Petroparcel' causing the former to sink.
2. The Board of Marine Inquiry conducted an
investigation of this marine accident and on 21
November 1978, the Commandant of the Philippine
Coast Guard, the Honorable Simeon N. Alejandro,
rendered a decision finding the cause of the
accident to be the reckless and imprudent manner
in which Edgardo Doruelo navigated the LSCO
'Petroparcel' and declared the latter vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring
Corporation (LUSTEVECO), executed in favor of
PNOC Shipping and Transport Corporation a Deed
of Transfer involving several tankers, tugboats,
barges and pumping stations, among which was
the LSCO Petroparcel.
4. On the same date on 2 April 1979 (sic) defendant
PNOC STC again entered into an Agreement of
Transfer with co-defendant Lusteveco whereby all
the business properties and other assets
appertaining to the tanker and bulk oil
departments including the motor tanker LSCO
Petroparcel of defendant Lusteveco were sold to
PNOC STC.
5. The aforesaid agreement stipulates, among others,
that PNOC-STC assumes, without qualifications,
all obligations arising from and by virtue of all
rights it obtained over the LSCO 'Petroparcel'.
6. On 6 July 1979, another agreement between
defendant LUSTEVECO and PNOC-STC was
executed wherein Board of Marine Inquiry Case
No. 332 (involving the sea accident of 21 September
1977) was specifically identified and assumed by
the latter.
7. On 23 June 1979, the decision of Board of Marine
Inquiry was affirmed by the Ministry of National
Defense, in its decision dismissing the appeal of
 Capt. Edgardo Doruelo and Chief mate Anthony
Estenzo of LSCO 'Petroparcel'.
8. LSCO 'Petroparcel' is presently owned and
operated by PNOC-STC and likewise Capt.
Edgardo Doruelo is still in their employ.
9. As a result of the sinking of M/V Maria Efigenia
caused by the reckless and imprudent manner in
which LSCO Petroparcel was navigated by
defendant Doruelo, plaintiff suffered actual
damages by the loss of its fishing nets, boat
equipments (sic) and cargoes, which went down
with the ship when it sank the replacement value of
which should be left to the sound discretion of this
Honorable Court."
After trial, the lower court rendered on November 18,
1989 its decision disposing of Civil Case No. C-9457 as
follows:
"WHEREFORE, and in view of the foregoing,
judgment is hereby rendered in favor of the
plaintiff and against the defendant PNOC
Shipping & Transport Corporation, to pay
the plaintiff:
a. The sum of P6,438,048.00 representing
the value of the fishing boat with interest
from the date of the filing of the
complaint at the rate of 6% per annum;
b. The sum of P50,000.00 as and for
attorney's fees; and
c. The costs of suit.
The counterclaim is hereby DISMISSED for
lack of merit. Likewise, the case against
defendant Edgardo Doruelo is hereby
DISMISSED, for lack of jurisdiction.
SO ORDERED."
In arriving at the above disposition, the lower court
cited the evidence presented by private respondent
consisting of the testimony of its general manager and
sole witness, Edilberto del Rosario. Private respondent's
witness testified that M/V Maria Efgenia XV was
owned by private respondent per Exhibit A, a
certificate of ownership issued by the Philippine Coast
Guard showing that M/V Maria Efgenia XV was a
wooden motor boat constructed in 1965 with 128.23
gross tonnage. According to him, at the time the vessel
sank, it was then carrying 1,060 tubs (bañeras) of
assorted fish the value of which was never recovered.
Also lost with the vessel were two cummins engines
(250 horsepower), radar, pathometer and compass. He
further added that with the loss of his flagship vessel in
his fishing fleet of fourteen (14) vessels, he was
constrained to hire the services of counsel whom he
paid P10,000 to handle the case at the Board of Marine
Inquiry and P50,000.00 for commencing suit for
damages in the lower court.
As to the award of P6,438,048.00 in actual damages, the
lower court took into account the following pieces of
documentary evidence that private respondent
proffered during trial:
(a) Exhibit A — certified xerox copy of the certificate
of ownership of M/V Maria Efgenia XV;
(b) Exhibit B — a document titled "Marine Protest"
executed by Delfin Villarosa, Jr. on September 22,
1977 stating that as a result of the collision, the
M/V Maria Efigenia XV sustained a hole at its left
side that caused it to sink with its cargo of 1,050
bañeras valued at P170,000 00;
(c) Exhibit C — a quotation for the construction of a
95-footer trawler issued by Isidoro A. Magalong of
I. A. Magalong Engineering and Construction on
January 26, 1987 to Del Rosario showing that
construction of such trawler would cost
P2,250,000.00;
(d) Exhibit D — pro forma invoice No. PSPI-05/87-
NAV issued by E.D. Daclan of Power Systems,
Incorporated on January 20, 1987 to Del Rosario
showing that two (2) units of CUMMINS Marine
Engine model N855-M, 195 bhp. at 1800 rpm.
would cost P1,160,000.00;
(e) Exhibit E — quotation of prices issued by Scan
Marine Inc. on January 20, 1987 to Del Rosario
showing that a unit of Furuno Compact Daylight
Radar, Model FR-604D, would cost P100,000.00
while a unit of Furuno Color Video Sounder,
Model FCV-501 would cost P45,000.00 so that the
two units would cost P145,000.00;
(f) Exhibit F — quotation of prices issued by Seafgear
Sales, Inc. on January 21, 1987 to Del Rosario
showing that two (2) rolls of nylon rope (5" cir. X
300fl.) would cost P140,000.00; two (2) rolls of
nylon rope (3" cir. X 240fl.), P42,750.00; one (1)
binocular (7 x 50), P1,400.00, one (1) compass (6"),
P4,000.00 and 50 pcs. of floats, P9,000.00 or a total
of P197,150.00;
(g) Exhibit G — retainer agreement between Del
Rosario and F. Sumulong Associates Law Offices
stipulating an acceptance fee of P5,000.00, per
appearance fee of P400.00, monthly retainer of
P500.00, contingent fee of 20% of the total amount
recovered and that attorney's fee to be awarded by
the court should be given to Del Rosario; and
(h) Exhibit H — price quotation issued by Seafgear
Sales, Inc. dated April 10, 1987 to Del Rosario
showing the cost of poly nettings as: 50 rolls of
400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls
of 400/18 5kts 100md x 100mtrs., P81,500.00; 50
416
 rolls of 400/18 8kts. 100md x 100mtrs.,
P116,000.00, and 50 rolls of 400/18 10kts. 100md x
100mtrs., P146,500 and bañera (tub) at P65.00 per
piece or a total of P414,065.00.
The lower court held that the prevailing replacement
value of P6,438,048.00 of the fishing boat and all its
equipment would regularly increase at 30% every year
from the date the quotations were given.
On the other hand, the lower court noted that petitioner
only presented Lorenzo Lazaro, senior estimator at
PNOC Dockyard & Engineering Corporation, as sole
witness and it did not bother at all to offer any
documentary evidence to support its position. Lazaro
testified that the price quotations submitted by private
respondent were "excessive" and that as an expert
witness, he used the quotations of his suppliers in
making his estimates. However, he failed to present
such quotations of prices from his suppliers, saying that
he could not produce a breakdown of the costs of his
estimates as it was "a sort of secret scheme." For this
reason, the lower court concluded:
"Evidently, the quotation of prices
submitted by the plaintiff relative to
the replacement value of the fishing
boat and its equipments in the tune of
P6,438,048.00 which were lost due to
the recklessness and imprudence of
the herein defendants were not
rebutted by the latter with sufficient
evidence. The defendants through
their sole witness Lorenzo Lazaro
relied heavily on said witness' bare
claim that the amount aforesaid is
excessive or bloated, but they did not
bother at all to present any
documentary evidence to
substantiate such claim. Evidence to
be believed, must not only proceed
from the mouth of the credible
witness, but it must be credible in
itself (Vda. de Bonifacio vs. B.L.T. Bus
Co., Inc. L-26810, August 31, 1970)."
Aggrieved, petitioner filed a motion for the
reconsideration of the lower court's decision
contending that: (1) the lower court erred in holding it
liable for damages; that the lower court did not acquire
jurisdiction over the case by paying only P1,252.00 as
docket fee; (2) assuming that plaintiff was entitled to
damages, the lower court erred in awarding an amount
greater than that prayed for in the second amended
complaint; and (3) the lower court erred when it failed
to resolve the issues it had raised in its memorandum.
16 Petitioner likewise filed a supplemental motion for
reconsideration expounding on whether the lower
court acquired jurisdiction over the subject matter of
the case despite therein plaintiff's failure to pay the
prescribed docket fee.
417
On January 25, 1990, the lower court declined
reconsideration for lack of merit. Apparently not
having received the order denying its motion for
reconsideration, petitioner still filed a motion for leave
to file a reply to private respondent's opposition to said
motion. Hence, on February 12, 1990, the lower court
denied said motion for leave to file a reply on the
ground that by the issuance of the order of January 25,
1990, said motion had become moot and academic.
Unsatisfied with the lower court's decision, petitioner
elevated the matter to the Court of Appeals which,
however, affirmed the same in toto on October 14, 1992.
On petitioner's assertion that the award of P6,438,048.00
was not convincingly proved by competent and
admissible evidence, the Court of Appeals ruled that it
was not necessary to qualify Del Rosario as an expert
witness because as the owner of the lost vessel, "it was
well within his knowledge and competency to identify
and determine the equipment installed and the cargoes
loaded" on the vessel. Considering the documentary
evidence presented as in the nature of market reports or
quotations, trade journals, trade circulars and price
lists, the Court of Appeals held, thus:
"Consequently, until such time as the
Supreme Court categorically rules on
the admissibility or inadmissibility of
this class of evidence, the reception of
these documentary exhibits (price
quotations) as evidence rests on the
sound discretion of the trial court. In
fact, where the lower court is
confronted with evidence which
appears to be of doubtful
admissibility, the judge should
declare in favor of admissibility
rather than of non- admissibility (The
Collector of Palakadhari, 124 [1899], p
43, cited in Francisco, Revised Rules
of Court, Evidence, Volume VII, Part
I, 1990 Edition, p. 18). Trial courts are
enjoined to observe the strict
enforcement of the rules of evidence
which crystallized through constant
use and practice and are very useful
and effective aids in the search for
truth and for the effective
administration of justice. But in
connection with evidence which may
appear to be of doubtful relevancy or
incompetency or admissibility, it is
the safest policy to be liberal, not
rejecting them on doubtful or
technical grounds, but admitting
them unless plainly irrelevant,
material or incompetent, for the
reason that their rejection places them
beyond the consideration of the
court. If they are thereafter found
relevant or competent, can easily be
remedied by completely discarding
 or ignoring them. (Banaria vs.
Banaria, et al., CA. No. 4142, May 31,
1950; cited in Francisco, Supra)."
[Emphasis supplied].
Stressing that the alleged inadmissible documentary
exhibits were never satisfactorily rebutted by
appellant's own sole witness in the person of Lorenzo
Lazaro, the appellate court found that petitioner
ironically situated itself in an "inconsistent posture by
the fact that its own witness, admittedly an expert one,
heavily relies on the very same pieces of evidence (price
quotations) appellant has so vigorously objected to as
inadmissible evidence." Hence, it concluded:
". . . The amount of P6,438,048.00 was
duly established at the trial on the
basis of appellee's documentary
exhibits (price quotations) which
stood uncontroverted, and which
already included the amount by way
of adjustment as prayed for in the
amended complaint. There was
therefore no need for appellee to
amend the second amended
complaint in so far as to the claim for
damages is concerned to conform
with the evidence presented at the
trial. The amount of P6,438,048.00
awarded is clearly within the relief
prayed for in appellee's second
amended complaint."
xxx xxx xxx
Hence, the instant recourse.
In assailing the Court of Appeals' decision, petitioner
posits the view that the award of P6,438,048 as actual
damages should have been in light of these
considerations, namely: (1) the trial court did not base
such award on the actual value of the vessel and its
equipment at the time of loss in 1977; (2) there was no
evidence on extraordinary inflation that would warrant
an adjustment of the replacement cost of the lost vessel,
equipment and cargo; (3) the value of the lost cargo and
the prices quoted in respondent's documentary
evidence only amount to P4,336,215.00; (4) private
respondent's failure to adduce evidence to support its
claim for unrealized profit and business opportunities;
and (5) private respondent's failure to prove the extent
and actual value of damages sustained as a result of the
1977 collision of the vessels.
Under Article 2199 of the Civil Code, actual or
compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury
sustained. They proceed from a sense of natural justice
and are designed to repair the wrong that has been
done, to compensate for the injury inflicted and not to
impose a penalty. In actions based on torts or quasi-
delicts, actual damages include all the natural and
probable consequences of the act or omission
complained of. There are two kinds of actual or
compensatory damages: one is the loss of what a person
already possesses (daño emergente), and the other is
the failure to receive as a benefit that which would have
pertained to him (lucro cesante). Thus:
"Where goods are destroyed by the
wrongful act of the defendant the
plaintiff is entitled to their value at
the time of destruction, that is,
normally, the sum of money which
he would have to pay in the market
for identical or essentially similar
goods, plus in a proper case damages
for the loss of use during the period
before replacement. In other words,
in the case of profit-earning chattels,
what has to be assessed is the value
of the chattel to its owner as a going
concern at the time and place of the
loss, and this means, at least in the
case of ships, that regard must be had
to existing and pending
engagements. . .
. . . If the market value of the ship
reflects the fact that it is in any case
virtually certain of profitable
employment, then nothing can be
added to that value in respect of
charters actually lost, for to do so
would be pro tanto to compensate the
plaintiff twice over. On the other
hand, if the ship is valued without
reference to its actual future
engagements and only in the light of
its profit-earning potentiality, then it
may be necessary to add to the value
thus assessed the anticipated profit
on a charter or other engagement
which it was unable to fulfill. What
the court has to ascertain in each case
is the 'capitalize value of the vessel as
a profit-earning machine not in the
abstract but in view of the actual
circumstances,' without, of course,
taking into account considerations
which were too remote at the time of
the loss." [Emphasis supplied].
As stated at the outset, to enable an injured party to
recover actual or compensatory damages, he is required
to prove the actual amount of loss with reasonable
degree of certainty premised upon competent proof
and on the best evidence available. The burden of proof
is on the party who would be defeated if no evidence
would be presented on either side. He must establish
his case by a preponderance of evidence which means
that the evidence, as a whole, adduced by one side is
superior to that of the other. In other words, damages
cannot be presumed and courts, in making an award
418
must point out specific facts that could afford a basis
for measuring whatever compensatory or actual
damages are borne.
In this case, actual damages were proven through the
sole testimony of private respondent's general manager
and certain pieces of documentary evidence. Except for
Exhibit B where the value of the 1,050 bañeras of fish
were pegged at their September 1977 value when the
collision happened, the pieces of documentary evidence
proffered by private respondent with respect to items
and equipment lost show similar items and equipment
with corresponding prices in early 1987 or
approximately ten (10) years after the collision.
Noticeably, petitioner did not object to the exhibits in
terms of the time index for valuation of the lost goods
and equipment. In objecting to the same pieces of
evidence, petitioner commented that these were not
duly authenticated and that the witness (Del Rosario)
did not have personal knowledge on the contents of the
writings and neither was he an expert on the subjects
thereof. Clearly ignoring petitioner's objections to the
exhibits, the lower court admitted these pieces of
evidence and gave them due weight to arrive at the
award of P6,438,048.00 as actual damages.
The exhibits were presented ostensibly in the course of
Del Rosario's testimony. Private respondent did not
present any other witnesses especially those whose
signatures appear in the price quotations that became
the bases of the award. We hold, however, that the
price quotations are ordinary private writings which
under the Revised Rules of Court should have been
proffered along with the testimony of the authors
thereof. Del Rosario could not have testified on the
veracity of the contents of the writings even though he
was the seasoned owner of a fishing fleet because he
was not the one who issued the price quotations.
Section 36, Rule 130 of the Revised Rules of Court
provides that a witness can testify only to those facts
that he knows of his personal knowledge.
For this reason, Del Rosario's claim that private
respondent incurred losses in the total amount of
P6,438,048 00 should be admitted with extreme caution
considering that, because it was a bare assertion, it
should be supported by independent evidence.
Moreover, because he was the owner of private
respondent corporation whatever testimony he would
give with regard to the value of the lost vessel, its
equipment and cargoes should be viewed in the light of
his self-interest therein. We agree with the Court of
Appeals that his testimony as to the equipment
installed and the cargoes loaded on the vessel should be
given credence considering his familiarity thereto.
However, we do not subscribe to the conclusion that his
valuation of such equipment, cargo and the vessel itself
should be accepted as gospel truth. We must, therefore,
examine the documentary evidence presented to
support Del Rosario's claim as regards the amount of
losses.
419
The price quotations presented as exhibits partake of
the nature of hearsay evidence considering that the
persons who issued them were not presented as
witnesses. Any evidence, whether oral or documentary,
is hearsay if its probative value is not based on the
personal knowledge of the witness but on the
knowledge of another person who is not on the witness
stand. Hearsay evidence, whether objected to or not,
has no probative value unless the proponent can show
that the evidence falls within the exceptions to the
hearsay evidence rule. On this point, we believe that the
exhibits do not fall under any of the exceptions
provided under Sections 37 to 47 of Rule 130.
It is true that one of the exceptions to the hearsay rule
pertains to "commercial lists and the like" under Section
45, Rule 130 of the Revised Rules on Evidence. In this
respect, the Court of Appeals considered private
respondent's exhibits as "commercial lists." It added,
however, that these exhibits should be admitted in
evidence "until such time as the Supreme Court
categorically rules on the admissibility or
inadmissibility of this class of evidence" because "the
reception of these documentary exhibits (price
quotations) as evidence rests on the sound discretion of
the trial court." Reference to Section 45, Rule 130,
however, would show that the conclusion of the Court
of Appeals on the matter was arbitrarily arrived at. This
rule states:
"Commercial lists and the like. —
Evidence of statements of matters of
interest to persons engaged in an
occupation contained in a list,
register, periodical, or other
published compilation is admissible
as tending to prove the truth of any
relevant matter so stated if that
compilation is published for use by
persons engaged in that occupation
and is generally used and relied upon
by them there."
Under Section 45 of the aforesaid Rule, a document is a
commercial list if: (1) it is a statement of matters of
interest to persons engaged in an occupation; (2) such
statement is contained in a list, register, periodical or
other published compilation; (3) said compilation is
published for the use of persons engaged in that
occupation, and (4) it is generally used and relied upon
by persons in the same occupation.
Based on the above requisites, it is our considered view
that Exhibits B, C, D, E, F and H 39 are not "commercial
lists" for these do not belong to the category of "other
published compilations" under Section 45 aforequoted.
Under the principle of ejusdem generis, "(w)here
general words follow an enumeration of persons or
things, by words of a particular and specific meaning,
such general words are not to be construed in their
widest extent, but are to be held as applying only to
persons or things of the same kind or class as those
specifically mentioned." The exhibits mentioned are
mere price quotations issued personally to Del Rosario
who requested for them from dealers of equipment
similar to the ones lost at the collision of the two
vessels. These are not published in any list, register,
periodical or other compilation on the relevant subject
matter. Neither are these "market reports or quotations"
within the purview of "commercial lists" as these are
not "standard handbooks or periodicals, containing
data of everyday professional need and relied upon in
the work of the occupation." These are simply letters
responding to the queries of Del Rosario. Thus, take for
example Exhibit D which reads:
xxx xxx xxx
To be sure, letters and telegrams are admissible in
evidence but these are, however, subject to the general
principles of evidence and to various rules relating to
documentary evidence. Hence, in one case, it was held
that a letter from an automobile dealer offering an
allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a
"price current" or "commercial list" within the statute
which made such items presumptive evidence of the
value of the article specified therein. The letter was not
admissible in evidence as a "commercial list" even
though the clerk of the dealer testified that he had
written the letter in due course of business upon
instructions of the dealer.
But even on the theory that the Court of Appeals
correctly ruled on the admissibility of those letters or
communications when it held that unless "plainly
irrelevant, immaterial or incompetent," evidence should
better be admitted rather than rejected on "doubtful or
technical grounds," the same pieces of evidence,
however, should not have been given probative weight.
This is a distinction we wish to point out. Admissibility
of evidence refers to the question of whether or not the
circumstance (or evidence) is to considered at all. On
the other hand, the probative value of evidence refers to
the question of whether or not it proves an issue. Thus,
a letter may be offered in evidence and admitted as
such but its evidentiary weight depends upon the
observance of the rules on evidence. Accordingly, the
author of the letter should be presented as witness to
provide the other party to the litigation the opportunity
to question him on the contents of the letter. Being mere
hearsay evidence, failure to present the author of the
letter renders its contents suspect. As earlier stated,
hearsay evidence, whether objected to or not, has no
probative value. Thus:
"The courts differ as to the weight to
be given to hearsay evidence
admitted without objection. Some
hold that when hearsay has been
admitted without objection, the same
may be considered as any other
properly admitted testimony. Others
maintain that it is entitled to no more
consideration than if it had been
excluded.
The rule prevailing in this jurisdiction
is the latter one. Our Supreme Court
held that although the question of
admissibility of evidence can not be
raised for the first time on appeal, yet
if the evidence is hearsay it has no
probative value and should be
disregarded whether objected to or
not. 'If no objection is made' —
quoting Jones on Evidence — 'it
(hearsay) becomes evidence by
reason of the want of such objection
even though its admission does not
confer upon it any new attribute in
point of weight. Its nature and
quality remain the same, so far as its
intrinsic weakness and incompetency
to satisfy the mind are concerned,
and as opposed to direct primary
evidence, the latter always prevails.
The failure of the defense counsel to
object to the presentation of
incompetent evidence, like hearsay
evidence or evidence that violates the
rules of res inter alios acta, or his
failure to ask for the striking out of
the same does not give such evidence
any probative value. But
admissibility of evidence should not
be equated with weight of evidence.
Hearsay evidence whether objected
to or not has no probative value."
Accordingly, as stated at the outset, damages may not
be awarded on the basis of hearsay evidence.
Nonetheless, the non-admissibility of said exhibits does
not mean that it totally deprives private respondent of
any redress for the loss of its vessel. This is because in
Lufthansa German Airlines v. Court of Appeals, the Court
said:
"In the absence of competent proof on
the actual damage suffered, private
respondent is 'entitled to nominal
damages which, as the law says, is
adjudicated in order that a right of
the plaintiff, which has been violated
or invaded by defendant, may be
vindicated and recognized, and not
for the purpose of indemnifying the
plaintiff for any loss suffered."
[Emphasis supplied].
Nominal damages are awarded in every obligation
arising from law, contracts, quasi-contracts, acts or
omissions punished by law, and quasi-delicts, or in
every case where property right has been invaded. 50
420
Under Article 2223 of the Civil Code, "(t)he
adjudication of nominal damages shall preclude further
contest upon the right involved and all accessory
questions, as between the parties to the suit, or their
respective heirs and assigns."
Actually, nominal damages are damages in name only
and not in fact. Where these are allowed, they are not
treated as an equivalent of a wrong inflicted but simply
in recognition of the existence of a technical injury.
However, the amount to be awarded as nominal
damages shall be equal or at least commensurate to the
injury sustained by private respondent considering the
concept and purpose of such damages. The amount of
nominal damages to be awarded may also depend on
certain special reasons extant in the case.
Applying now such principles to the instant case, we
have on record the fact that petitioner's vessel
Petroparcel was at fault as well as private respondent's
complaint claiming the amount of P692,680.00
representing the fishing nets, boat equipment and
cargoes that sunk with the M/V Maria Efigenia XV . In
its amended complaint, private respondent alleged that
the vessel had an actual value of P800,000.00 but it had
been paid insurance in the amount of P200,000.00 and,
therefore, it claimed only the amount of P600,000.00.
Ordinarily, the receipt of insurance payments should
diminish the total value of the vessel quoted by private
respondent in his complaint considering that such
payment is causally related to the loss for which it
claimed compensation. This Court believes that such
allegations in the original and amended complaints can
be the basis for determination of a fair amount of
nominal damages inasmuch as a complaint alleges the
ultimate facts constituting the plaintiffs cause of action.
Private respondent should be bound by its allegations
on the amount of its claims.
xxx xxx xxx
WHEREFORE, the challenged decision of the Court of
Appeals dated October 14, 1992 in CA-G.R. CV No.
26680 affirming that of the Regional Trial Court of
Caloocan City, Branch 121, is hereby MODIFIED
insofar as it awarded actual damages to private
respondent Maria Efigenia Fishing Corporation in the
amount of P6,438,048.00 for lack of evidentiary bases
therefor. Considering the fact, however, that (1)
technically petitioner sustained injury but which,
unfortunately, was not adequately and properly
proved, and (2) this case has dragged on for almost two
decades, we believe that an award of Two Million
(P2,000.000.00) 59 in favor of private respondent as and
for nominal damages is in order.
No pronouncement as to costs.
SO ORDERED.
Kapunan and Purisima, JJ ., concur.
421
Narvasa, C .J ., is on leave.
TALISAY-SILAY MILLING CO., INC., ET AL. vs.
ASOCIACION DE AGRICULTORES DE TALISAY-
SILAY, INC., ET AL.
G.R. No. 91852, 15 August 1995, 247 SCRA 361
FELICIANO, J p:
On 15 February 1966, Talisay-Silay Milling Co., Inc.
("TSMC") and Talisay-Silay Industrial Cooperative
Association, Inc. ("TSICA") instituted an action for
damages (Civil Case No. 9133) against defendants
Asociacion de Agricultores de Talisay-Silay, Inc.
("AATSI"), First Farmers Milling Co., Inc. ("FFMCI"),
Dominador Agravante and other individual sugar
planters and Ramon Nolan in his personal and official
capacity as administrator of the Sugar Quota
Administration. On 9 March 1967, an amended and
supplemental complaint formally included as
defendants the Philippine National Bank ("PNB") and
the National Investment Development Corporation
("NIDC").
On 4 March 1972, the then Court of First Instance of
Rizal, Branch VIII rendered its decision in Civil Case
No. 9133 the dispositive portion of which reads:
"WHEREFORE, premises considered judgment is
hereby rendered:
1. Declaring as illegal the transfer of sugar quota
allotments or production allowance of the
defendant planters from the Talisay-Silay Milling
Co., Inc. to First Farmers Milling Co., Inc.;
2. Ordering the said planters to return to and
continue to mill their sugar canes with the Talisay-
Silay Milling, Co., Inc.;
3. Restraining the defendant Sugar Quota
Administration or his agents from approving the
issuance of quota license for 'A' sugar by First
Farmers Milling Co., Inc. to defendant farmers;
4. Condemning the defendants jointly and severally
to pay plaintiff Talisay-Silay Industrial Cooperative
Association the amount of P6,609,714.32 and to
plaintiff Talisay-Silay Milling Co., Inc. the sum of
P8,802,612.89 with legal rate of interest from the
filing of the complaint until fully paid, with costs
against defendants.
SO ORDERED."
Appeal was had by defendants-appellants AATSI, et al.
and on 30 October 1989, the Court of Appeals rendered
a decision affirming with modification the decision of
the court a quo. More specifically, the Court of Appeals
(a) absolved from liability appellants Ramon Nolan of
the Sugar Quota Administration, the PNB and the
NIDC, and (b) reduced the amount of damages due
plaintiffs-appellees TSMC and TSICA from
approximately P15.4 million to only P1 million. The
Court of Appeals decreed:
xxx xxx xxx
Hence, there is left for determination the extent of
liability, if any, of respondents AATSI, et al. who had
seceded and transferred their sugar export quota from
TSMC to FFMCI.
xxx xxx xxx
The disposition of the instant case, to the mind of the
Court, involves the resolution of the following issues:
(a) whether AATSI, et al. are, in fact, liable to TSMC
and TSICA; (b) assuming AATSI, et al. are liable,
whether the Court of Appeals erred in reducing the
amount of damages awarded by the trial court to TSMC
and TSICA from P15.4 million to P1 million; and (c)
assuming error on the part of the Court of Appeals,
whether the amount of damages awarded by the trial
court is supported by the evidence of record.
xxx xxx xxx
We find no cogent reason to disturb the conclusion of
the Court of Appeals and the court a quo that the
transfer of export sugar quota by AATSI and certain
individual sugar planters from TSMC to FFMCI was
illegal and invalid for having been effected despite the
absence of the second condition imposed by Section 4 of
Republic Act No. 1825, that is, that TSMC was not
willing to give AATSI, et al. the participation of the
plantation owner laid down in Republic Act No. 809
vis-a-vis the sugar mill.
xxx xxx xxx
III
Turning to the extent of liability incurred by AATSI,
FFMCI and the individual sugar planters when they
illegally seceded and transferred their sugar quota from
TSMC and TSICA, we address first the issue raised by
AATSI, et al. that the pieces of evidence offered by
TSMC and TSICA and relied upon by the court a quo,
in particular, Exhibits "P-1"-"P-8" and "W-1"-"W-6," are
"incompetent" and the testimony of Mr. Yapjoco merely
his "opinion." According to AATSI, et al.,
"The evidence of damages must be
clear. Manresa expresses the rule on
the quantum of proof of 'ganancias
frustradas'. Thus: — 'la necesidad de
una prueba robusta.'
At once apparent is that the
pronouncement of the court [a quo]
on the quantum of damages . . . does
not distinctly state the factors and the
law on which it is based. It simply
concluded — 'unrealized profits.' It
did not state what facts were
considered in arriving at the different
figures, what amounts plaintiffs
failed to receive and what were
deducted to determine the
'unrealized profits,' how the court
arrived at the figures constituting the
so-called unrealized profits.
What the lower court had thus stated
— 'unrealized profits' — is purely a
conclusion of law, not a finding of the
essential ultimate facts." (Emphasis
provided by the text)
In fine, AATSI, et al. maintains that TSMC and TSICA
failed to clearly prove unrealized profits or ganancias
frustradas and that the court a quo had erred in
awarding the same.
We consider that the evidence of record requires us to
reject this overly broad contention.
The familiar rule is that damages consisting of
unrealized profits, frequently referred as 'ganancias
frustradas' or "lucrum cessans," are not to be granted on
the basis of mere speculation, conjecture or surmise but
rather by reference to some reasonably definite
standard such as market value, established experience
or direct inference from known circumstances.
Uncertainty as to whether or not a claimant suffered
unrealized profits at all — i.e., uncertainty as to the very
fact of injury — will, of course, preclude recovery of
this species of damages. Where, however, it is
reasonably certain that injury consisting of failure to
realize otherwise reasonably expected profits had been
incurred, uncertainty as to the precise amount of such
unrealized profits will not prevent recovery or the
award of damages. The problem then would be the
ascertainment of the amount of such unrealized profits.
In the case at bar, as earlier stated, Exhibits "P-1" and
"W-1" were offered by TSMC and TSICA to substantiate
their claim for unrealized profits covering four (4) crop
years, CYs 1964-1965, 1965-1966, 1966-1967 and 1967-
1968. 30 Exhibits "P-1" and "W-1" set forth the income
that TSMC and TSICA claim should have been realized
had they milled the sugar allocations for Mill District
No. 44 (composed of TSMC and TSICA) during those
four (4) crop years, which allocations had been
transferred to and milled by FFMCI.
To support the figures set out in Exhibits "P-1" and "W-
1," TSMC and TSICA submitted detailed schedules
marked as Exhibits "P-2"-"P-8" and "W-2"-"W-6,"
respectively. These schedules purport to show, in
greater detail, the various components of the "Total
Sales Value" of the sugar allotted to Mill District No. 44
as well as the "Total Cost of Production" of such sugar
on a given crop year. Deducting the Total Cost of
Production from the Total Sales Value, the remainder
422
represents the "Total Unrealized Income" suffered by
TSMC and TSICA in a given crop year.
Examination of Exhibits "P-2" to "P-8" and "W-2" to "W-
6" shows that the figures there set out were based, in
turn, on data provided by (a) circulars issued by the
Sugar Quota Administration; 31 (b) certifications issued
by the then Bureau of Commerce listing the average
selling prices of sugar and molasses during given years;
32 as well as (c) the sugar and molasses production and
distribution reports of FFMCI. 33 Combining these
specific documentary material with the testimony of
Mr. Yapjoco, we consider that they provided sufficient
basis for a reasonable estimate of the unrealized net
income or profit sustained by TSMC and TSICA for CYs
1964-1965, 1965-1966, 1966-1967 and 1967-1968. We do
not believe that the data embodied in Exhibits "P-1" to
"P-8" and "W-1" to "W-6" can be dismissed as merely
speculative; the data, in fact, appears to rest on fairly
definite standards utilized by the governmental agency
having relevant administrative jurisdiction (i.e., the
Sugar Quota Administration) and accounting standards
widely employed in the world of business and
commerce.
Nevertheless, a review of the damages actually
awarded to TSMC and TSICA by the trial court on the
one hand and the Court of Appeals on the other,
reveals the need for a more careful and thorough
examination of the matter. As earlier noted, the Court
of Appeals' award of P1 million based simply on the
amount set out in the original complaint of TSMC and
TSICA must be discarded. Upon the other hand, the
award by the trial court of damages to TSMC and
TSICA was arrived at merely by totalling up the
unrealized income sustained by TSMC and TSICA over
the relevant four (4) crop year period:
"Because of the refusal of the
defendants planters to return to
TSMC, plaintiff TSMC [and TSICA]
suffered an unrealized profit of
P1,934,847.73 in 1964-65 while for
1965-66 crop year, in the amount of
P3,033,301.16, for 1966-67 in the
amount of P4,656,643.20, and for
1967-1968, in the amount of
P4,805,472.12.
The plaintiff TSMC failed to realize
P3,015,077.77 and plaintiff TSICA
failed to realize P6,609,714.32 or a
total of P9,624,792.09. In 1967-68 after
the lease to TASICA has expired,
TSMC failed to realize a net income
of P4,805,514.12." (Brackets supplied)
We believe, in other words, that the figures and
computations utilized by the trial court in its award of
damages need further examination and refinement.
423
For instance, the award of damages rendered by the
trial court took into account the loss of income suffered
by TSMC and TSICA when AATSI, et al. transferred
two (2) types of sugar quota: the "domestic quota" and
the "export quota." In respect of the domestic quota, the
Court, in Hawaiian Philippines Corporation v. Asociacion
de Hacenderos de Silay-Saravia, Inc., ruled that the
transfer by AATSI, et al. of their domestic quota was
valid considering that Section 9 of Act No. 4166 as
amended by R.A. No. 1072, required only one (1)
condition for the validity of a transfer of such quota: the
absence or expiration of a milling contract between the
sugar central and the sugar planter. The consent of the
sugar central was not required for the validity of a
transfer of the domestic sugar quota. Accordingly, the
transfer by AATSI, et al. of their domestic sugar quota
must be regarded as valid and the loss of income
attributable to the transfer of such domestic sugar quota
from TSMC and TSICA to FFMCI must be deducted
from the aggregate amount of damages due to TSMC
and TSICA.
A second example: Exhibits "P-1" and "W-1" embody
figures relating to "molasses." Molasses are a by-
product of milled sugar, whether that sugar be covered
by a "domestic quota" or by an "export quota." The
amount of income lost traceable to molasses that would
have been extracted from domestic sugar must be
deducted from the aggregate damages due to TSMC
and TSICA.
We consider, therefore, that there is need for
recalculation of the damages due to TSMC and TSICA,
in the interest of substantial and impartial justice. To
this end, and following the course of action taken by the
Court in the Northern Cement Corporation case, the
Court finds it necessary and appropriate to remand this
case to the Court of Appeals in accordance with Section
9 of B.P. Blg. 129 for a more careful evaluation of the
evidence already adduced by the parties and re-
computation of the damages appropriately due to
TSMC and TSICA. The Court also directs that, in
computing the actual amount of damages due, the
Court of Appeals should provide for legal interest in
accordance with recent caselaw of this Court.
Finally, in accordance with the rule laid down in Sun
Insurance Office, Ltd., (SIOL) v. Asuncion, the
corresponding additional judicial filing fees shall
constitute a lien on the judgment award, to be assessed
and collected by the Clerk of Court.
WHEREFORE, the Decision and Resolution of the
Court of Appeals in CA-G.R. No. 51350-R dated 30
October 1989 and 10 January 1990, respectively are
hereby MODIFIED insofar as the award of actual
damages due Talisay-Silay Milling Co., Inc. and
Talisay-Silay Industrial Cooperative Association, Inc.
are concerned. Subject to the rulings referred to herein,
this case is REMANDED to the Court of Appeals for the
determination, with all deliberate dispatch, of the
amount of damages due Talisay-Silay Milling Co., Inc.
and Talisay-Silay Industrial Cooperative Association,
Inc. considering that this litigation among the parties
has already lasted more than twenty-eight (28) years.
The rest of the Decision of the Court of Appeals is
hereby AFFIRMED. Costs against respondents.
SO ORDERED.
Romero, Melo, and Vitug, JJ., concur.
G.A MACHINERIES, INC., vs.
HORACIO YAPTINCHAY
G.R. No. L-30965, 29 November 1983, 126 SCRA 78
GUTIERREZ, JR., J p:
Petitioner G. A. Machineries, Inc. (hereinafter referred
to as GAMI) seeks the reversal of the decision of the
Court of First Instance of Rizal, affirmed by the Court of
Appeals in the original case entitled Horacio
Yaptinchay, doing business under the name and style
"Hi-Way Express", v. G.A. Machineries Inc. for recovery
of damages.
The antecedent facts of the case are not seriously
disputed and are summarized by the Court of Appeals
as follows:
"Sometime early in January, 1962 appellant GAMI, thru
a duly authorized agent, offered to sell a brand-new
Fordson Diesel Engine to appellee Horacio Yaptinchay,
owner of the freight hauling business styled 'Hi-Way
Express'. Relying on the representations of appellant's
representative that the engine offered for sale was
brand new, appellee agreed to purchase the same at the
price of P7,590.00. Pursuant to the contract of sale thus
entered into, appellant delivered to appellee, on
January 27, 1962, one (1) Fordson Diesel Engine
assembly, Model 6-D, with Engine Serial No. A-212193,
at 1500 RPM, with fly wheel, fly wheel housing, fuel
injection assembly, exhauster, fuel filter, oil filter, fuel
lift pump, plus conversion kit for F-500, subject to the
standard warranties, particularly the representation,
relied upon by appellee, that the same was brand new.
Said engine was installed by appellant in Unit No. 6 of
the Hi-Way Express.
"Within the week after its delivery, however, the engine
in question started to have a series of malfunctions
which necessitated successive trips to appellant's repair
shop. Thus, it first sprang an oil leak such that, on
February 6, 1962, it was brought in to '1. Adjust idling
of engine and tappete clearance; 2. Inspect and remedy
oil leaks of engine; 3. Replace clutch disc and pressure
plate w/original; and 4. Replace release bearing hub
trunion bolt' (Exhibit C). Thereafter, the malfunctioning
persisted and, on inspection, appellee's mechanic
noticed a worn out screw which made appellee
suspicious about the age of the engine. This prompted
appellee, thru his lawyer, to write appellant a letter,
dated February 10, 1962, protesting that the engine was
not brand-new as represented (Exhibit E). Because of
the recurring defects, the engine was again submitted to
appellant's shop to '1. Inspect engine oil leaks on
cylinder head; 2. Check up propeller shaft (vibrating at
high speed); and 3. Tighten bolts of pump.' (Exhibit F).
All these notwithstanding, the engine could still not be
returned into operation because it continued not to
function well. In fact, it was sent back to appellant's
shop on the same day it was delivered after the last
repair work done on it. Another check up was
thereafter required to be made on March 5, 1962
(Exhibit G). Then again, on March 10, 1962, the engine
was back at the repair shop to '1. Inspect leaks on No. 1
& 5 high pressure pipe; and 2. Change engine oil with
finishing & oil element' (Exhibit H). Still, the oil leaks
remained unchecked and, on July 2, 1962, one last effort
to '1. Remedy engine oil leaks' (Exhibit 1) was made,
but all to no avail because, instead of improving, the
engine's condition became worse as it developed engine
knock and appellee had to stop its operation altogether
due to its unserviceability.
"These repeatedly recurring defects and continued
failure of appellant to put the engine in good operating
condition only served to firm up in appellee's mind the
suspicion that the engine sold to him was not brand-
new as represented. He then sought the assistance of
the PC Criminal Investigation Service to check on the
authenticity of the serial number of the engine, with
due notice to appellant. Scientific examination and
verification tests revealed that the original motor
number of the engine aforesaid was tampered. Further
inquiries by appellee from the Manila Trading
Company, which also handles the importation and
distribution of similar engines, also disclosed that,
unlike the engine delivered to appellee whose engine
body and injection pump were painted with two
different colors, brand-new engines are painted with
only one color all over.
"Thus convinced that a fraudulent misrepresentation as
to the character of the engine had been perpetrated
upon him, appellee made demands from appellant for
indemnification for damages and eventually instituted
the present suit.
"In its defense, appellant interposed prescription of the
action, denied the imputation of misrepresentation, and
disputed the propriety and amount of damages
claimed." . . .
After trial on the merits, the trial court ruled in favor of
plaintiff Yaptinchay as follows:
"FOR ALL THE FOREGOING
CONSIDERATIONS, the Court
hereby renders judgment ordering
the defendant, G. A. Machineries,
Inc., to pay the plaintiff, Horacio
Yaptinchay, actual damages
sustained in the sum of P54,000.48; to
reimburse the purchase price of the
424
 Fordson diesel engine in the amount
of P7,590.00; and to pay attorney's
fees to plaintiff's counsel on the sum
of P2,000.00 and costs.
"Plaintiff is, likewise, ordered to
return the Fordson diesel engine with
serial number A-21219 to the
defendant."
Defendant GAMI appealed the decision to the Court of
Appeals. As stated earlier, the decision was affirmed by
the Appellate Court. A motion for reconsideration was
denied. Hence, the instant petition.
xxx xxx xxx
The assignments of errors raise the following issues: 1)
whether or not the respondent's cause of action against
the petitioner had already prescribed at the time the
complaint was filed in the trial court; 2) whether or not
the factual findings of both the trial and appellate
courts as regards the subject Fordson diesel engine are
supported by evidence and 3) whether or not the award
of damages was justified considering the evidence on
record.
The first issue is premised on the petitioner's
proposition that the respondent's cause of action was
for breach of warranty against hidden defects as
provided under Articles 1561 and 1566 of the Civil
Code. Article 1571 of the Civil Code provides for a six-
month prescriptive period from the delivery of the
thing sold for the filing of an action for breach of
warranty against hidden defects. According to
petitioner GAMI when respondent Yaptinchay filed the
case with the trial court, more than six months had
already lapsed from the time the alleged defective
engine was delivered and, therefore, the action had
prescribed.
The petitioner contends that Yaptinchay's asserted
cause of action was premised and anchored on the
delivery by the defendant of a DEFECTIVE ENGINE
and that the allegations in the complaint that the engine
was not brand new are clearly mere specifications of
the precise nature of the hidden defects.
A cursory reading of the complaint shows that the
petitioner's arguments are not well-taken.
The main thrust of the complaint is the contention that
the Fordson diesel engine delivered by the petitioner to
the respondent was not brand-new contrary to the
representations of the former and the expectations of
the latter. The complaint was couched in a manner
which shows that instead of the brand-new Fordson
diesel engine which was bought by the respondent
from the petitioner, another engine which was not
brand new was delivered resulting in the damages
sought to be recovered. It is evident therefore, that the
complaint was for a breach of a contract of sale rather
425
than a breach of warranty against hidden defects. This
is so because an action for breach of warranty against
hidden defects presupposes that the thing sold is the
same thing delivered but with hidden defects.
Consequently, the six-month prescriptive period under
Article 1571 of the Civil Code is not applicable.
The petitioner takes exception to the factual findings of
the appellate court and argues: 1) the fact that the
Fordson diesel engine developed oil leaks does not
necessarily imply that the said engine was not brand
new and 2) the testimony of laboratory technician
Captain Garcia of the Philippine Constabulary to the
effect that the motor or serial number of the engine was
tampered does not deserve credence.
The first argument is premised on the proposition that
even brand-new engines in many cases develop oil
leaks. To support this proposition the petitioner
presented documentary evidence (Exhibits "5", "7", "8",
"9", "10", "11", "12", "13", "14", "15", "16" and "17")
consisting of job orders for allegedly brand new engines
which developed oil leaks.
An examination of the documentary evidence shows
that the job orders were for twelve (12) different
engines. Moreover, the petitioner's witness who
testified on the said job orders admitted that some
engines were repaired only after a few months. On the
other hand, the subject Fordson diesel engine was
repaired on the complaint not only of oil leaks but also
replacement of clutch disc and pressure plate,
replacement of release bearing hub trunion belt, and
other defects within a week after it was delivered to the
respondents or on February 6, 1962 (Exhibit "C").
Thereafter it was returned for more repairs on February
28, 1962 (Exhibit "F"), on March 10, 1962 (Exhibit "H")
and on July 2, 1962 (Exhibit "I"). The documentary
evidence of the petitioner consisting of the job orders of
the supposed brand-new engines which also developed
oil leaks is no reason to doubt the trial court's and
appellate court's factual findings. In fact, the
documentary evidence and the admissions of the
petitioner's witness enhance the respondent's allegation
that the Fordson diesel engine sold to him was not
brand-new.
The second argument questions Captain Garcia's
findings that the original motor number of the engine
was tampered as shown by the presence of fragmentary
numbers which appeared in the engine when he
conducted a macro-etching test thereon by applying
acid on the surface of said engine. The petitioner
emphasizes Captain Garcia's alleged testimony that ". . .
what he calls fragmentary numeral" is not definitely a
numeral or a fragment of a numeral and states that the
same could have been caused by any molecular
pressure applied to the area of the metal where it
appeared. In effect, the petitioner insists that the
supposed fragmentary numerals could have been
merely scratches or indentations near the serial number
of the motor which might have been caused by sparks
from the welding process.
The arguments are not well-taken. First, the statements
attributed to Captain Garcia are not accurate. An
examination of the record shows that Captain Garcia
positively stated the fragmentary numeral to be a
numeral or a number but in the absence of key portions
he could not positively identify the exact number or
numeral. He discounted the possibility that such
fragmentary numerals could be mere scratches. Second,
the witness did not categorically state that any
molecular pressure could have caused the fragmentary
numeral. Hence, Captain Garcia under cross-
examination stated:
"Q. This fragmentary numeral could be
caused deliberately by tampering with
the engine number or by other factor
such as scratches or burning by other
foreign element, is that right?
"A. No, sir, they can be caused by scraping
but not by scratching, because by
scraping there is molecular disturbance
of metal.
"Q. When you say molecular disturbance
does it mean you first apply in the
area, or would it disturb the molecule
in or around that area?
"A. Once you stamped the number, you
impressed it and there is molecular
disturbance in the structure of the
metal.
"Q. If the metal is burned, there is also
molecular disturbance in the metal, is
that correct?
"A. The metal will only expand.
"Q. There is no spark of the machine could
not cause the molecular disturbance in
the steam, is that right?
"A. It cannot" (T.S.N., Iluminado C.
Palisoc, February 5, 1965, pp. 99-100)
The petitioner's argument that the Court of Appeals
findings are based on manifestly mistaken inferences,
misapprehension of facts, and purely on speculation,
surmises, and conjectures is without merit.
The Fordson diesel engine delivered to the respondent
was not brand-new.
We agree with the Court of Appeals that:
"Indeed, it would be too much to say
that the successive malfunctions of
the engine, the defects and other
discrepancies therein that cropped up
so soon after its delivery, the
numerous trips it had to appellant's
repair shop, the demonstrable
tampering with its serial number, and
its ultimate breakdown despite
appellant's attempts to put it into
good working order could be
attributed to mere coincidence. If all
these mean anything at all, it can only
be that the engine aforesaid was not
really brand new.
The petitioner committed a breach of
contract against the respondent. The
misrepresentation of the quality of
the subject Fordson diesel engine is
tantamount to fraud or bad faith. The
return of the P7,590.00 purchase price
with legal interest from the date of
purchase and computed pursuant to
our ruling in Villoria v. Court of
Appeals (G.R. No. 63398, June 29,
1983) is justified. The next question
refers to the award of actual damages
in the amount of P54,000.48. This
amount covers the probable income
which the respondent failed to realize
because of the breach of contract. Is
the award of damages in the form of
lucro cessante justified?
The law on the matter is spelled out
in Raagas v. Traya (22 SCRA 839),
where we stated.
". . . In Abubakar Tan v. Tian
Ho, L-18820, December 29,
1962 and Lim Giok v. Bataan
Cigar and Cigarette Factory,
L-15861, April 16, 1960, we
held that even if the
allegations regarding the
amount of damages in the
complaint are not
specifically denied in the
answer, such damages are
not deemed admitted. In
Tomassi v. Villa-Abrille, L-
7047, August 21, 1958,
Suntay Tanjangco v.
Jovellanos, et al, L-12332, June
30, 1960, and Delfin v. Court
of Agrarian Relations, et al., L-
23348, March 14, 1967, 1967
A PHILD 453, we declared in
no uncertain terms that
actual damages must be
proved, and that a court
cannot rely on 'speculation,
conjecture or guesswork' as
to the fact and amount of
damages, but must depend
on actual proof that damages
had been suffered and on
426
 evidence of the actual
amount. . . ."
The fact that the defendant does not
dispute the amount of this kind of
damages does not necessarily imply
that the other party outright is
entitled to the award of damages.
Article 2200 of the Civil Code entitles
the respondent to recover as
compensatory damages not only the
value of the loss suffered but also
prospective profits while Article 2201
entitles the respondent to recover all
damages which may be attributed to
the non-performance of the
obligation. However, in order to
recover this kind of damages, the
plaintiff must prove his case —
"'When the existence of a loss
is established, absolute
certainty as to its amount is
not required. The benefit to
be derived from a contract
which one of the parties has
absolutely failed to perform
is of necessity to some
extent, a matter of
speculation, but the injured
party is not to be denied all
remedy for that reason
alone. He must produce the
best evidence of which his
case is susceptible and if that
evidence warrants the
inference that he has been
damaged by the loss of
profits which he might with
reasonable certainty have
anticipated but for the
defendant's wrongful act, he
is entitled to recover."
(Cerreno v. Tan Chuco, 28
Phil. 312 quoted in Central
Bank of the Philippines v. Court
of Appeals, 63 SCRA 431, 457).
Applying the foregoing test to the instant case, we find
the evidence of the respondent insufficient to be
considered within the purview of "best evidence." The
bare assertion of the respondent that he lost about
P54,000.00 and the accompanying documentary
evidence presented to prove the amount lost are
inadequate if not speculative. The document itself
merely shows that everytime a truck travels, Mr.
Yaptinchay earns P369.88. This amount is then
multiplied by the number of trips which the truck was
allegedly unable to make. The estimates were prepared
by a certain Dionisio M. Macasieb whose identity was
not even revealed by the respondent. Mr. Yaptinchay
427
was in the freight truck business. He had several freight
trucks among them the truck with the subject Fordson
diesel engine, covering the route from Manila to
Baguio. To prove actual damages, it would have been
easy to present the average actual profits realized by
the other freight trucks plying the Manila-Baguio route.
With the presentation of such actual income the court
could have arrived with reasonable certainty at the
amount of actual damages suffered by the respondent.
We rule that the award of actual damages in the
amount of P54,000.08 is not warranted by the evidence
on record.
WHEREFORE, the decision appealed from is hereby
modified. The award of actual damages in the amount
of P54,000.48 is deleted. The petitioner shall also pay six
(6%) percent interest per annum on the P7,590.00
purchase price from January 27, 1962 to July 29, 1974
and twelve (12%) percent interest per annum from July
30, 1974 until the purchase price is reimbursed. In all
other respects, the appealed decision is affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio Herrera, Plana and
Relova, JJ., concur.
CHINA AIRLINES LIMITED vs. COURT OF
APPEALS, ET AL.
G.R. No. 94590, 29 July 1992, 211 SCRA 897
FELICIANO, J p:
Private respondent Manuel J. Ocampo bought, through
the Ultraman Travel Agency, a round-trip ticket for
Manila-San Francisco-Manila from petitioner China
Airlines Limited ("CAL"). The ticket purchased was a
GV-10, or a Group Tour, ticket for which Ocampo paid
a special discounted (reduced) price of P6,063.00. A
Group Tour ticket is issued to members of a group of at
least ten (10) passengers travelling for a minimum of
fourteen (14) days and for a maximum of thirty-five (35)
days. It is a condition of a Group Tour ticket that the
holder thereof must stay in the place of destination (in
this case, the United States), for at least fourteen (14)
but not exceeding thirty-five (35) days. The portion of
the ticket covering the return trip may be used only
after expiration of fourteen (14) days counted from the
date of arrival at the place of destination; beyond the
thirty-five (35) allowable days, the return trip ticket is
no longer valid.
The ticket purchased by respondent Ocampo bore the
following schedule and status:
Date Time Status.
Manila-Taipei 09 May 1030 RQ
Taipei-S.F. 09 May 1525 RQ
S.F.-Honolulu 24 May 2350 RQ
Honolulu-Tokyo 30 May 0405 RQ
Tokyo-Taipei 02 June 1545 RQ
Taipei-Manila 09 June 1120 RQ

It will be noted from the above schedule that
respondent Ocampo's return flight from San Francisco
to Manila was scheduled for 24 May 1979, i.e., the 15th
day after arrival in San Francisco. Respondent Ocampo,
however, wanted to leave for Manila earlier than 24
May 1979 because he had several business meetings
scheduled to be held here prior to 24 May 1979 and
because of his desire to attend to his wife's and son's
forthcoming departure for Europe scheduled on 24 May
1979.
Notwithstanding the limitations on his discounted GV-
10 ticket, therefore, respondent Ocampo sought to make
special arrangements, through Ultraman Travel
Agency, with CAL Manila for a change in schedule. The
travel agency was, according to respondent Ocampo,
assured that the necessary adjustments would be made
and that Mr. Ocampo could definitely take the CAL
flight from San Francisco on 18 May 1979. Not satisfied,
respondent Ocampo sent his private secretary to the
office of CAL Manila to have the ticket changed. There,
the secretary was handed a typewritten note purporting
to show a revised schedule for the different sectors of
the return trip from San Francisco to Manila with the
corresponding flight numbers. The revised schedule
was as follows:
"CI001 — flight number.
dep San Francisco 11:50 p.m. May 18
arr Honolulu 1:55 a.m. May 19
CI007 — flight number.
dep Honolulu 4:05 a.m. May 20
arr Taipei 10:25 a.m. May 21
CI811 — flight number.
dep Taipei 11:20 a.m. May 21
arr Manila 1:10 p.m. May 21"
Respondent Ocampo was asked to reconfirm his return
flight with CAL San Francisco which would alter the
ticket by attaching a sticker on it showing the adjusted
flights and departure dates. The revised schedule was
also entered into respondent Ocampo's reservation card
on file in the office of CAL Manila.
Respondent Ocampo left Manila for San Francisco on 9
May 1979 and arrived in San Francisco also on the same
day, San Francisco local time. Next day, he proceeded
to CAL San Francisco's office to confirm his revised
return flight schedule. CAL San Francisco, however,
declined to confirm his return flight, since the date
indicated on the ticket was not 18 May 1979 but rather
24 May 1979. Mr. Ocampo, however, apprised CAL San
Francisco about the special arrangement that he had
requested from CAL Manila. CAL San Francisco
contacted CAL Manila by telex requesting verification
of the revised schedule for respondent Ocampo. CAL
San Francisco, however, received a negative reply from
CAL Manila.
Respondent Ocampo persisted in his efforts to book
himself on the CAL San Francisco-Honolulu flight on
18 May 1979. By telephone, he contacted his private
secretary in Manila to make the necessary inquiry and
verification at CAL Manila. His secretary later
telephoned back to inform him that CAL Manila would
forthwith send a communication to CAL San Francisco
to correct the situation. With that information,
respondent Ocampo proceeded once more to CAL San
Francisco and left his telephone number and address
where he could be contacted upon receipt of
confirmation from CAL Manila.
CAL San Francisco never sent any notice to private
respondent. On the morning of 18 May 1979,
respondent Ocampo went to CAL San Francisco's office
to check again on the status of his return flight; there he
was apparently informed that CAL Manila had not
responded. Respondent Ocampo was accordingly
constrained to take a Philippine Airlines flight which
left San Francisco on 20 May 1979, the earliest available
return flight which respondent Ocampo could secure
after 18 May 1979.
Upon arrival in Manila, respondent Ocampo demanded
an explanation from CAL Manila. He was told candidly
that a mistake had been committed by an employee of
CAL Manila who had sent a negative reply to CAL San
Francisco's request for confirmation without first
consulting Ocampo's passenger reservation card.
Another employee or representative of CAL Manila
offered private respondent compensation for actual
expenses incurred by him due to his inability to board
the CAL 18 May 1979 flight from San Francisco. Private
respondent asked that the offer be reduced to writing;
however, nothing in writing emanated from CAL
Manila and nothing further happened.
Private respondent then filed a complaint for damages
before the then Court of First Instance of Manila. He
asked for P200,000.00 as moral damages, P200,000.00 as
exemplary damages and P50,000.00 as attorney's fees.
On 23 May 1983, after trial on the merits, the trial court
rendered a decision, the dispositive portion of which
read as follows:
"In View of the Foregoing
Considerations, the Court is of the
opinion and so holds that when the
plaintiff tried to return to Manila
from San Francisco, a date different
from the scheduled date of his
departure from San Francisco as
contained in his plane ticket, the
plaintiff is considered as a chance
passenger and could only board the
defendant's plane on his departure on
May 18, 1979 depending upon the
volume of passengers and plane load
on May 18, 1979 and defendant had
not violated any provisions of the
plane ticket issued to the plaintiff
which is the contract between
428
 plaintiff and the defendant; the
complaint is hereby dismissed for
lack of cause of action. On principles
of equity and justice, defendant is
hereby ordered to reimburse the
plaintiff the sum of $601.00 or its
equivalent value in Philippine
Currency at the rate then existing on
May 18, 1979. The counterclaim of the
defendant is hereby dismissed as the
same had not been fully established,
without special pronouncement as to
cost.
So ordered."
On appeal by private respondent, the Court of Appeals
reversed the trial court's decision. The Court of Appeals
found petitioner CAL guilty of bad faith in not allowing
respondent Ocampo to board the 18 May 1979 CAL
flight in San Francisco despite messages from CAL
Manila confirming the change in schedule and the
availability of seats for the different sectors of the flight
from San Francisco to Manila. The Court of Appeals
awarded, in addition to the US $601 that the trial court
had ordered CAL to pay to private respondent, the sum
of P200,000.00 as moral damages, another P200,000.00
as exemplary damages and attorney's fees of
P50,000.00.
In the instant Petition for Review, petitioner CAL
argues that:
1. The respondent Court erred when it concluded that
the petitioner [was] liable to the private respondent
on the basis that he had a confirmed reservation
contrary to the express finding of the lower court.
2. The respondent Court erred when it concluded that
the petitioner was guilty of bad faith.
3. The respondent Court erred when it awarded
damages not warranted by the evidence and which
are excessive.
We note that while the ticket, held by private
respondent himself, showed on its face a 24 May 1979
departure from San Francisco to Honolulu and a "RQ"
[Request] status, the evidence of record showed that
private respondent had indeed requested CAL Manila
for an earlier return flight, to which request CAL
Manila eventually agreed. The record shows a stream of
telexes between the several offices of petitioner CAL
involved in respondent's trip, disclosing the following
salient facts:
1. On 7 May 1979 at 2:54 p.m., Manila time, CAL
Manila sent telexes to CAL Taipei and CAL San
Francisco informing the two (2) offices that
respondent Ocampo had a sold seat for the sector
San Francisco-Honolulu on 18 May 1979, but that
the status of the sector Honolulu-Taipei for 20 May
429
1979 and the sector Taipei-Manila for 21 May 1979,
was only "wait listed. "
2. On 7 May 1979 at 4:44 p.m., San Francisco time,
CAL San Francisco sent a reply to CAL Manila to
confirm the San Francisco-Honolulu sector
scheduled for 18 May 1979 as well as the Honolulu-
Taipei sector for 20 May 1979.
3. On 8 May 1979, at 10:10 a.m., Manila time, CAL
Manila sent another telex to CAL Taipei, urging the
latter to do everything possible to confirm the
Taipei-Manila sector of the flight scheduled for 21
May 1979.
4. On 14 May 1979 at 8:06 a.m., Taipei time, CAL
Taipei telexed CAL Manila confirming the Taipei-
Manila sector as earlier requested.
5. On 17 May 1979 at 1:10 p.m., San Francisco time,
CAL San Francisco, which by then had learned
about the confirmed status of all segments of the
flight San Francisco-Manila, reiterated its request to
CAL Manila for an early departure authority, i.e.,
as an exception to the regular conditions of a GV-10
ticket, so that respondent Ocampo may be allowed
to board the 18 May 1979 flight leaving San
Francisco for Honolulu.
6. On 17 May 1979 at 2:28 p.m., Manila time, CAL
Manila instructed CAL San Francisco to inform
respondent Ocampo of the confirmed status of the
different sectors of his return flight, and to accept
private respondent for carriage by reason of a prior
arrangement made with CAL Manila.
7. On 18 May 1979 at 9:32 a.m., Manila time, CAL
Manila sent an urgent message to CAL San
Francisco substantially reiterating the instructions
in CAL Manila's telex of 17 May 1979 sent at 2:28
p.m. For some reason not clear in the record, the
last two (2) telexes received in CAL San Francisco
from CAL Manila apparently did not get to the
attention of, and were not acted upon by, the right
person or persons in CAL San Francisco.
Because CAL Taipei had confirmed as early as 14 May
1979 the Taipei-Manila sector of private respondent's
return trip, public respondent Court of Appeals
considered CAL San Francisco's refusal to board private
respondent as an act of bad faith, and awarded private
respondent the large amounts he sought by way of
moral and exemplary damages totalling P400,000.00.
We consider that private respondent was able to show
that petitioner CAL had indeed confirmed a seat for
Mr. Ocampo on the 18 May 1979 flight from San
Francisco-Honolulu (and all the way to Manila). We
agree, therefore, with the Court of Appeals that
petitioner CAL had breached its contract of carriage
with private respondent by such failure or refusal to
board him on that flight.

We are not, however, persuaded that breach of
contractual obligation had been attended by bad faith
or malice or gross negligence amounting to bad faith.
To the contrary, it appears to the Court that petitioner
CAL had exercised diligent efforts to effect the change
of schedule which it apparently had earlier stated to
private respondent (prior to his departure from Manila)
it would carry out. There was clearly a concerted effort
among the involved CAL offices as shown by the flow
of telexes from one to the others. If at the outset,
petitioner CAL simply did not intend to comply with
its promise to private respondent that it would
accommodate his requested change of schedule, it
would not have taken the trouble of composing and
transmitting all those telexes between its several offices.
CAL San Francisco was obviously aware of the
limitations on a GV-10 CAL ticket and its employee(s)
who had refused to accede summarily to respondent
Ocampo's request for confirmation of his revised
schedule, cannot be held guilty of bad faith; the
procedure adopted of seeking verification from CAL
Manila was one taken in the usual course of business
and was not in itself unreasonable or arbitrary The
responsible officer(s) of CAL Manila admitted that it
had initially sent an erroneous message to CAL San
Francisco concerning authorization for early departure
of private respondent from San Francisco. While the
CAL Manila employee who had sent a mistaken telex
message was negligent, there was no evidence either of
deliberate malice or of gross negligence. The last two (2)
telexes sent by CAL Manila to CAL San Francisco on 17
May and 18 May 1979 were presumably received by
CAL San Francisco in time to have relayed to
respondent Ocampo his acceptance as a passenger on
the CAL flight out of San Francisco scheduled for 18
May 1979. Again, however, we do not believe that
respondent Ocampo had convincingly shown that the
employees of petitioner CAL were motivated by
personal malice or bad faith, or that there was patently
negligence so gross as to amount to bad faith. Bad faith
under the law is not presumed; it must be established
by clear and convincing evidence. Private respondent
has not adduced that kind of evidence in the instant
case. There was no pretense that any of the employees
of any of the CAL offices involved knew respondent
Ocampo from Adam.
Under Article 2201 of the Civil Code, the measure of
recoverable damages for breach of contract varies
according to the circumstances attending that breach.
Article 2201 provides:
"In contracts and quasi-contracts, the
damages for which the obligor who
acted in good faith is liable shall be
those that are the natural and
probable consequences of the breach
of the obligation, and which the
parties have foreseen or could have
reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or
wanton attitude the obligor shall be
responsible for all damages which
may be reasonably attributed to the
non-performance of the obligation."
(Emphasis supplied)
Article 2220 is also pertinent:
"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 or in bad faith."
(Emphasis supplied)
Clearly, the law distinguishes a contractual breach
effected in good faith from one attended by bad faith.
Where in breaching the contract, the defendant is not
shown to have acted fraudulently or in bad faith,
liability for damages is limited to the natural and
probable consequences of the breach of the obligation
and which the parties had foreseen or could reasonably
have foreseen; and in that case, such liability would not
include liability for moral and exemplary damages.
Under Article 2232 of the Civil Code, in a contractual or
quasi-contractual relationship, exemplary damages
may be awarded only if the defendant had acted in "a
wanton, fraudulent, reckless, oppressive or malevolent
manner." We are unable to so characterize the behavior
here shown of the employees of CAL Manila and of
CAL San Francisco. Thus, we believe and so hold that
the damages recoverable by respondent Ocampo are
limited to the peso value of the Philippine Airlines
ticket it had purchased for his return flight from San
Francisco; and reasonable expenses occasioned to
private respondent by reason of the delay in his return
San Francisco-Manila trip — exercising the Court's
discretion, we believe that for such expenses, US
$1,500.00 would be a reasonable amount — plus
attorney's fees in the amount of P15,000.00, considering
that respondent Ocampo was ultimately compelled to
litigate his claim against petitioner.
WHEREFORE, the Decision of the Court of Appeals
dated 25 July 1990 is hereby REVERSED and SET
ASIDE. A new judgment is hereby ENTERED requiring
petitioner to pay private respondent Ocampo the
Philippine Peso equivalent of US $2,101.00, at the rate
of exchange prevailing at the time of payment thereof,
as reasonable compensatory damages, plus attorney's
fees in the amount of P15,000.00 and costs. Petitioner's
counterclaim before the trial court is hereby
DISMISSED.
SO ORDERED.
430

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur
CONSOLIDATED DAIRY PRODUCTS CO., ET AL.
vs. COURT OF APPEALS
G.R. No. 100401, 24 August 1992, 212 SCRA 810
MEDIALDEA, J p:
This is a petition for review on certiorari of the decision
of the Court of Appeals in CA-G.R. CV No. 01644
entitled "Consolidated Dairy Products Co., et al., versus
The Court of Appeals and Standard Investment
Corporation," which affirmed in toto the decision of the
then Court of First Instance (now Regional Trial Court)
of Rizal (Pasay City).
The facts of the case as summarized by the trial court
and adopted by the Court of Appeals are as follows:
"Sometime in 1956 Consolidated Dairy Products
Company, Inc., a foreign corporation in Seattle,
Washington, U.S.A. (hereinafter referred to as
Consolidated Seattle), agreed with Santiago Syjuco, Inc.
(hereinafter referred to as Syjuco, Inc.) to go into a joint
venture to manufacture and sell Darigold milk and
other dairy products in this country. To achieve this
purpose, they organized and incorporated defendant
Consolidated Philippines, Inc. (hereinafter referred to
as Consolidated Philippines), with offices at Parañaque,
Rizal. Consolidated Seattle owned 51% of the capital
stock while the remaining 49% of the capital stock was
owned by the Syjuco Inc. Thereafter, Consolidated
Seattle extended to Consolidated Philippines the
exclusive right to use the tradename Darigold in the
Philippines. In turn, Consolidated Philippines began
processing and distributing Darigold evaporated filled
milk in the Philippines.
"At the start of its operation, Consolidated Philippines
was importing its can requirements from the United
States. However, due to economic policy then
prevailing in the country, Consolidated Philippines was
constrained to secure its can requirement from local
sources. Hence, on April 2, 1959, Consolidated
Philippines entered into a contract with plaintiff
Standard Investment Corporation (hereinafter referred
to as Standard, operating under the tradename
Standard Can Company. Under the said can supply
agreement, Consolidated Philippines agreed to
purchase from the latter its requirements of can up to
May 31, 1969 (Exhibit C). Pursuant to this agreement,
plaintiff constructed a can-making plant and purchased
the required machineries and equipment and sent
technicians to train in the United States under and for
the account of Consolidated Philippines.
"In 1966, Dairy Export Company (hereinafter referred to
as Dexco), a subsidiary of Consolidated Seattle and also
holding office at 635 Elliot Avenue West, Seattle,
Washington, U.S.A. with Consolidated Seattle, applied
for a license to do business in the Philippines which
431
was approved by the Securities and Exchange
Commission. It held office in the very office of
Consolidated Philippines. Thereafter, on September 30,
1966, Dexco entered into a contract with Consolidated
Philippines whereby the latter agreed to purchase from
the former packaged sweetened condensed filled milk.
"On May 6, 1968, plaintiff Standard, Consolidated
Philippines and Dexco signed a memorandum of
agreement by virtue of which the tenure of the can
supply agreement of April 2, 1959 between the plaintiff
and Consolidated Philippines was extended up to
December 31, 1981.
"On January 12, 1972, Consolidated Seattle thru Louis
Arrigoni, notified Consolidated Philippines that the
former was placing the control and licensing of the
Darigold trademark in the Orient, including the
Republic of the Philippines, into the hands of Dexco
(Exhibit 8).
"On August 28, 1974, Consolidated Seattle, through its
President, Dr. Louis Arrigoni, wrote Mr. Augusto
Syjuco of Syjuco, Inc., a personal and confidential letter
offering to sell to him the interest of Consolidated
Seattle in Consolidated Philippines, alleging a great
many economies could be made by a single
management and production organization running the
three organizations, the Standard, Consolidated
Philippines and Dexco, as the set up then existing will
ultimately result in the demise of Consolidated
Philippines (Exhibit O). This was refused by Mr.
Augusto Syjuco.
"On November 13, 1974, Dexco wrote Consolidated
Philippines that it was cancelling effective January 25,
1975 the license granted to Consolidated Philippines to
use the tradename Darigold (Exhibit P).
"Mr. Augusto Syjuco, in his behalf and in behalf of
Syjuco, Inc., the minority stockholder in Consolidated
Philippines, protested the cancellation of the license
(Exhibit Q).
"Subsequently, Dr. Louis Arrigoni, speaking as
President of Consolidated Seattle, offered Syjuco, Inc. to
sell (sic) Consolidated Seattle's share in Consolidated
Philippines for P1.00 or to buy Syjuco, Inc.'s share in
Consolidated Philippines or to file bankruptcy
proceedings for Consolidated Philippines.
"Left with no better choice, Syjuco, Inc. chose to sell its
49% equity in Consolidated Philippines to Consolidated
Seattle. Consequently, on October 8, 1976, Syjuco, Inc.
executed a memorandum agreement by virtue of which
it agreed to sell to Consolidated Seattle all its interest in
Consolidated Philippines and to dissolve Consolidated
Philippines, subject to the condition that the right of
plaintiff to submit claims it may have shall be respected
in case Consolidated Philippines is not dissolved
(Exhibit E).
"Accordingly, Consolidated Seattle bought the entire
interest of Syjuco, Inc. and its stockholdings
Consolidated Philippines and proceeded to dissolve
Consolidated Philippines (TSN, October 22, 1979, p. 20).
"Before Consolidated Philippines could be dissolved,
however, Dexco the wholly owned subsidiary of
Consolidated Seattle took over the marketing activities
of Consolidated Philippines (Exhibits A and A-1) and
proceeded to sell milk under the tradename Darigold
upon the dissolution of Consolidated Philippines (TSN,
October 22, 1979, pp. 31, BB-1 and BB-3).
"Earlier, however, on November 3, 1976, E.L. Benitez,
then general manager of Consolidated Philippines,
notified plaintiff that it was cancelling the can supply
contract of April 2, 1959 (Exhibit B), prompting plaintiff
to demand reimbursement concerned due to the
cessation of their operation on November 15, 1976 in
the amount of P1,022.472.59 and payment of unrealized
profits (Exhibits H, I and N).
"Since plaintiff's demands were rejected (Exhibit 11), it
was constrained to file this case and to engage the
services of counsel for 25% of all recoveries (Exhibit X).
"After summons have been validly served on the
defendants, defendants Dexco in its answer claims that
plaintiff Standard had no cause of action against it
considering that the basis for its instant action was the
can supply contract between the said plaintiff and
Consolidated Philippines wherein Dexco was not a
party and therefore no(t) privy (to the) contract existing
between them, and that assuming that it was bound by
the can supply contract and liable to the plaintiff, this
action was premature as no demand relative thereto
was made.
"Defendant Consolidated Philippines, through its
trustees, defendant Jesus Bito and Federico Guilas,
claims that the plaintiff's action was premature as the
same never referred to an impartial referee which was
provided for by can supply agreement, that the
dissolution and liquidation of Consolidated Philippines
was mutually agreed upon by the Consolidated Seattle
and Syjuco, Inc., and that the dissolution and
liquidation of Consolidated Philippines extinguished its
obligation under the can supply contract, and finally
that the guarantee extended by Consolidated Seattle for
Consolidated Philippines' liability under the can supply
contract covered only liabilities for cans already
supplied and not liabilities accruing subsequent to the
execution of the memorandum agreement of October 8.
In both answers Consolidated Philippines as well as
Dexco filed Counterclaims which were denied by the
plaintiff.
"Defendant Consolidated Seattle did not file any
answer. (pp. 1-4, Decision; p. 14, Record)" (pp. 53-56,
Rollo)
After the parties presented their respective evidence,
the trial court rendered judgment in favor of Standard.
The dispositive portion of which reads:
"IN VIEW OF THE FOREGOING, this Court hereby
orders the defendants, namely, Consolidated Dairy
Products Company of Seattle, Washington, U.S.A.
and/or its alter ego Dairy Export Company Inc., as well
as Consolidated Philippines, Inc. (represented by its
Acting Trustees Jesus B. Bito and Federico B. Guilas) to
pay plaintiff, jointly and severally, the following:
a) P1,022,472.59 representing the separation pay that
plaintiff had to pay its employees plus 6% interest
per annum computed from the date of the filing of
this on April 4, 1977 until the defendants fully pay
their obligation;
b) P8,107,931.13 representing the plaintiff's aggregate
unrealized profit from the years 1974 to 1981 plus
6% interest per annum computed from April 4,
1977, the date of the filing of this case until
defendants fully pay their obligation;
c) P1,050,197.80 representing inventory losses
suffered by plaintiff plus 6% interest per annum
computed from April 4, 1977 until defendants
fully settle their obligation; and
d) P1,000,000.00 as exemplary damages, considering
the damages caused the plaintiff and the
fraudulent scheme used by the defendants, plus
25% of all the abovementioned amounts as
attorney's fees.
"The counterclaim of the defendants Consolidated
Philippines and Dexco are denied for lack of merit. (pp.
9-10, Decision; pp. 564-565, Record)"
Not satisfied with the decision of the trial court,
Consolidated Seattle and Consolidated Philippines,
thru its acting trustees, appealed to the Court of
Appeals. On April 19, 1991, the Court of Appeals
rendered a decision affirming the decision of the trial
court in toto.
In this petition for review, Consolidated Seattle and
Consolidated Philippines pray for the reversal of the
decision of the Court of Appeals and the dismissal of
the complaint of Standard. The following assignment of
errors were raised:
xxx xxx xxx
"FOURTH ASSIGNMENT OF ERROR
"THE LOWER COURT ERRED IN SUSTAINING
PLAINTIFF'S CLAIM FOR UNREALIZED PROFITS.
"FIFTH ASSIGNMENT OF ERROR
432
 "THE LOWER COURT ERRED IN AWARDING
PLAINTIFF INVENTORY LOSSES IN THE SUM OF
P1,150,197.00.
"SIXTH ASSIGNMENT OF ERROR
"THE LOWER COURT ERRED IN AWARDING
EXEMPLARY DAMAGES AND ATTORNEY'S FEES IN
FAVOR OF PLAINTIFF." (pp. 15-16, Rollo)
xxx xxx xxx
We now go to the propriety of the award of damages.
The trial court received evidence to support private
respondent's claim for damages. It should be
emphasized here that the damages claimed by private
respondents do not refer to claims which were already
due from the can supply contract. The claims here are
for damages caused by the fraudulent termination by
petitioners of the can supply contract four (4) years
before the end of its term and for such a short notice.
We reproduce herein the findings of the trial court and
adopt them with modifications as regards the amount:
"Plaintiff's first claim is for
reimbursement for the separation pay
it paid its employees due to the
termination of the can supply
agreement in the amount of
P1,022,472.59.
"The evidence supports plaintiff's
claim above (sub-par. A and C, par.
111 of Exhibit C and Exhibit J-1). The
amount actually paid by plaintiffs to
the separated employee is
P929,520.54 (Exhibits L and R to R-
54). To this was added 10% since 10%
must be added to costs and
production, thus making the total of
P1,022,472.59 (Exhibit C and I)." (p.
521, Record)
There is no question that Standard paid these amounts
to their separated employees. It was obliged to do so by
virtue of the CBA it signed with the employees.
"The second claim of plaintiff is for
unrealized profit amounting to
P8,107,931.13. In support of this claim
plaintiff showed that from 1971 to
1975 it made an aggregate profit of
P8,107,931.13 (Exhibits M, U, U-2, U-
4, U-6, U-8, U-10, U-12, U-14, U-16
and U-18), and argued that since the
can supply contract had another five
(5) years to go (1977 to 1981) plaintiff
would have earned that much."(Ibid.)
Indemnification for damages shall comprehend not
only the value of the loss suffered, but also that of the
profits which the obligee failed to obtain (Art. 2200
433
NCC). The presumption that Standard would earn
exactly the same profit as it did five (5) years before its
closure is speculative. A more reasonable amount
would be the average of the yearly profit for the five
years preceding the closure (1971-1975) multiplied by
the number of years remaining as provided for in the
contract. The average yearly profit for 1971 to 1975 is
P1,041,095.76 (p. 280, Records). This amount multiplied
by five (years) amounts to P5,205,478.80.
We also affirm the findings of the appellate court on
inventory losses as it is sufficiently supported by
evidence, to wit:
"The financial statement of plaintiff
further shows that it incurred
inventory losses in the year 1977
(Exhibit V), due to cans which rusted
and could not have been disposed of
(TSN, November 27, 1979, p. 13),
administrative expenses connected
with the cost of the cans, cost of raw
materials and amounting to
P1,150,197.80 (TSN, November 26,
1979, Exhibit V). These losses were
due to the cancellation of the can
supply contract before its agreed
expiration date. It is only right that
defendants be held liable for them."
(p. 64, Rollo)
There is no doubt that the breach committed by the
petitioners was made in a wanton and fraudulent
manner. There was no reason for petitioners to
terminate the can supply contract with Standard. The
latter was purposely organized for the benefit of
Consolidated Philippines. Neither was there a need to
close Consolidated Philippines because Consolidated
Seattle had all the intentions of continuing its business
only this time to be undertaken by its sole subsidiary,
Dexco to the prejudice of Standard. Where a defendant
violates a contract with plaintiff, the court may award
exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive and malevolent
manner (Art. 2232, Civil Code).
The claim for attorney's fees of 25% percent of all
recoveries is unconscionable. It is hereby reduced to
15%.
ACCORDINGLY, the decision of respondent Court of
Appeals is affirmed with modification on the amount of
damages awarded as discussed above.
SO ORDERED.
Cruz, Griño-Aquino and Bellosillo, JJ ., concur.
b. Death and permanent incapacity
MANZANARES vs. MORETA
G.R. No. 12306, 22 October 1918

TORRES, J p:
In this case which is brought for the recovery of the
damages resulting from the death of the child Salvador
Bona, of from 8 to 9 years of age, who had been run
over by an automobile driven and managed by the
defendant on the morning of March 5, 1916, a judgment
was rendered on August 3, 1916, whereby the said
defendant was sentenced to pay the sum of P1,000 as
indemnity to the plaintiff, the mother of the deceased
child, and to pay the costs. From this judgment, an
appeal was taken by the defendant after his motion for
a new trial had been overruled, and the case is now
before this court by bill of exceptions.
The statement of facts is at once admitted, and we find
no reason for disturbing the findings made by the trial
judge in his judgment appealed from, wherein the
defendant was found liable for the accident which
occurred to the said child on Solana Street on the
morning of said day, and consequently, the defendant,
as the one who had caused the accident, is bound to
indemnify the mother of the deceased child in the
amount of P1,000, which was deemed by the trial judge
to be the value of the damages occasioned to the mother
for the loss and death of a member of her family.
To the reasons given by the trial judge as grounds for
his decision, we deem pertinent to add the following:
If it were true that the defendant, in coming from the
southern part of Solana Street, had to stop his auto
before crossing Real Street, because he had met vehicles
which were going along the latter street or were coming
from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto
across said Real Street and to continue its way along
Solana Street northward, he should have adjusted the
speed of the auto which he was operating until he had
fully crossed Real Street and had completely reached a
clear way on Solana Street. But, as the child was run
over by the auto precisely at the entrance of Solana
Street, this accident could not have occurred, if the auto
had been running at a slow speed, aside from the fact
that the defendant, at the moment of crossing Real
Street and entering Solana Street, in a northward
direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right
to that on the left; and if the accident had occurred in
such a way that after the automobile had run over the
body of the child, and the child's body had already
been stretched out on the ground, the automobile still
moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile
entered Solana Street from Real Street, at a high speed
without the defendant having blown the horn. If these
precautions had been taken by the defendant, the
deplorable accident which caused the death of the child
would not have occurred.
In view of the foregoing considerations as well as those
contained in the judgment of the trial court, which, we
believe to be in accordance with law and the evidence
of record, we believe that the errors assigned by the
appellant are thereby refuted and that therefore the
judgment appealed from, should be, as it hereby is,
affirmed, with the costs against the appellant. So
ordered.
Arellano, C.J., Johnson, Araullo and Street, JJ., concur.
Separate Opinions
MALCOLM, J., concurring:
The facts are few and simple. A male child, 8 or 9 years
of age, was killed through the negligence of the
defendant in driving his automobile. The mother of the
dead boy is a widow, a poor washerwoman. She brings
action against the defendant to recover damages for her
loss in the amount of P5,000. Without there having been
tendered any special proof of the amount of damages
suffered, the trial court found the defendant responsible
and condemned him to pay to plaintiff the sum of
P1,000. The decision of this Court handed down by
Justice Torres, affirms the judgment of the Court of First
Instance. If necessary, the decision of the Supreme
Court of Louisiana in the case of Burvant vs. Wolfe
([1910], 126 La., 787), could be cited as corroborative
authority.
The principles of law which measure the pecuniary
responsibility of the defendant, not discussed in the
main opinion, are more difficult. Since the time of
Grotius and even before, lawyers and publicists have
speculated as to whether the loss of a human life should
be compensated in money, and if so, as to the amount
which should be allowed.
At Common Law no civil action lies for damages
caused by the death of a human being by the wrongful
or negligent act of another. The maxim is actio personalis
moritur cum persona. (Mobile Life Ins. Co. vs. Brame [1878],
95 U. S., 754; Baker vs. Bolton, 1 Campb., 493.) Two
different modes of reasoning have arrived at this result.
The first and older theory was the merger of the private
right in the public wrong. (The E. B. Ward, Jr. [1883], 16
Fed., 255.) The second and younger theory was that the
death of a human being cannot be complained of as a
civil injury. Under the latter doctrine, it has been
repeatedly held that a civil action by a parent for the
death of a minor child cannot be maintained. (Kramer
vs. San Francisco Market Street R. Co. [1864], 25 Cal., 434;
Jackson vs. Pittsburg, C. C. & St. L. R. Co. [1894], 140 Ind.,
241; Wilson vs. Bumstead [1881], 12 Neb., 1; Sullivan vs.
Union P. R. Co. [1880], 2 Fed., 447; Osborn vs. Gillett
[1873], L. R. 8 Exch., 88; Weems vs. Mathieson, 4 Macq. H.
L. Cas. 215; Gulf, C. & S. F. Ry. Co. vs. Beall [1897], 91
Tex., 310. See 41 L. R. A., 807, Note.)
By the Civil Law, particularly as existing in Spain,
France, Porto Rico, and Louisiana, the true principle is
somewhat beclouded. Thus, in Louisiana, a State
favored by French and Spanish antecedents, the exact
434
question of whether an action for damages caused by
the homicide of a human being can be maintained, was
presented by able counsel for the opinion of
distinguished jurists. And it was held in a decision,
later expressly affirmed, that, under the Civil Law, the
action could not be maintained by the surviving wife or
children. (Hubgh vs. New Orleans & Carrollton R. R. Co.
[1851], 6 La. Ann., 495; Hermann vs. New Orleans &
Carrollton R. R. Co. [1856], 11 La. Ann., 5; 24 Pothier
Pandectes, p. 279; law 13; 7 Partida, title 15, law 3.)
The same question has arisen in Porto Rico. It has there
been held that by the Civil Law in force in Porto Rico a
civil action lies for negligence resulting in death.
(Borrero vs. Cia. Anonyma de la Luz Electriea de Ponce
[1903], 1 Porto Rico Fed., 144; Diaz vs. San Juan Light &
Transit Co. [1911], 17 Porto Rico, 64.) The right to sue for
death from negligence of a defendant, by persons
entitled to support by the deceased has not been
changed by the new Civil Code of Porto Rico. (Torres vs.
Ponce Railway & Light Co. [1903], 1 Porto Rico Fed., 476.)
In Spain, from which both the Civil Law of Porto Rico
and the Philippines were derived, it has been decided
that such an action could be maintained. (Decision of
the supreme court of Spain of December 14, 1894.) In
France, the highest court has interpreted the Code
Napoleon as sanctioning actions by those damaged by
the death of another against persons by whose fault the
death happened. (Chavoix vs. Enfants Duport [1853], 1
Journal du Palais 614; Rollond's case, 19 Sirey, 269.)
That even in those jurisdictions in which the Common
Law has force, the observance of the principle has been
resisted, is disclosed by the action of Hawaii in holding
that there can be a recovery for death by wrongful act.
(The Schooner Robert Lewers Co. vs. Kekauoha [1902], 114
Fed., 849.) That the impropriety of the judge-made rule
was early disclosed, is shown by the numerous statutes,
beginning with Lord Campbell's Act, which were
enacted to cover the deficiency by permitting of a right
of action to recover damages for death caused by
wrongful act. Even in Louisiana, a State partially
governed by the Civil Law, because of a statute, an
action will now lie for pecuniary and other damages
caused by death. (McCubbin vs. Hastings [1875], 27 La.
Ann., 713.) And finally, that eminent authorities
recognize liability in case of death by negligence is
disclosed by the mere mention of such names as
Grotius, Puffendorif, and Domat. For instance, Grotius
in his Rights of War and Peace said:
"Exemplo hæc sint. Homicida
injustus, tenetur solvere impensas, si
qæu factæ sunt in medicos, et iis quos
occisus alere exofficio solebat, puta
parentibus, uxoribus liberis dare
tantum, quantum illa spes
alimentorum, ratione habita ætatis
occissi, valebat — sicuti Hercules
legitur Iphiti a se occissi leberis
mulctam pependissi, quo facilius
435
expiaretur. Michael Ephesius ad
quintum Nicomachiorum Aristotilis;
Alla kai o Phoneuthies elabe tropon
tina — O gare e gune e oi paides, e oi
suggenies tou phoneuthentos elabe
tropon tina ekeino dedotai. Sed et qui
occisus est accipit aliquo modo. Quae
enim uxor ejus et liberi et cognati
accipiunt, ipse quodammodo accipit.
Loquimur de homicida injusto id est,
qui non habuit jus id faciendi unde
mors sequitur. Quare si quis jus
haburit sed in caritatem peccavirit ut
qui fugere noluit, non tenebitur.
"Vitae autem in libero homine
aestimatio non fit, secus in servo qui
vendi potuit." [11 La. Ann., 5.]
"The following may be for example:
Any man slaying another, unjustly, is
bound to discharge the expenses, if
any are contracted, for physicians,
and to give to those whom the slain
was in duty accustomed to maintain
— such as parents, wives, children —
as much as that hope of maintenance
— regard being had to the age of the
deceased — was worth: thus,
Hercules is said to have made
reparation (paid a fine) to the
children of Iphitus, slain by him, in
order that expiation might more
easily be made.
"Michael, the Ephesian, says upon the
5th of the Nicomachii of Aristotle:
'but also the person slain receives, in
some sort, for what the wife or
children or relations of the person
slain receive is, in some sort given
him.' We are speaking of an unjust
manslayer: that is, one who had not
the right of doing that from whence
death follows. "Wherefore, if any one
may have had the right; but has
sinned against charity, as when one
(being assaulted) has been unwilling
to flee, he shall not be bound. But of
life, in case of a free man, no
valuation is made, otherwise, in case
of a slave who can be sold."
Both because of the civil origin of the applicable law in
the Philippines, because we are not fettered by the
harsh common law rule on the subject, because it is the
modern and more equitable principle, and because
reason and natural justice are eloquent advocates, we
hold that an action for damages can be maintained in
this jurisdiction for the death of a person by wrongful
act. It can be admitted, since objection has not been
made, that the primary right of action is in the parent.
The second phase of our enquiry, pertaining to the
amount of compensation for the loss of a human life,
must now be settled.
"Damage" has been defined by Escriche as "the
detriment, injury, or loss which are occasioned by
reason of fault of another in the property or person."
(Escriche, Diccionario Razonado de Legislacion y
Jurisprudencia, vol. 2, p. 597.) Of whatsoever nature the
damage be, and from whatsoever cause it may proceed,
the person who has done the injury ought to repair it by
an indemnity proportionate to his fault and to the loss
caused thereby. (1 Cushing, Domat's Civil Law, p. 741.)
Damnum (daño or a loss) must be shown to sustain an
action for damages.
Philippine law as found in the well known article 1902
of the Civil Code, derived from Partida VII, Title V, is to
this effect. In order to give rise to the obligation
imposed by this article of the Civil Code, the
coincidence of two distinct requisites is necessary, viz:
(1) That there exist an injury or damage not originating
in acts or omissions of the prejudiced person himself,
and its existence be duly proven by the person
demanding indemnification therefore; (2) that said
injury or damage be caused by the fault or negligence
of a person other than the sufferer. (12 Manresa,
Comentarios al Codigo Civil, p. 604.)
Those seeking to recoup damages must ordinarily
establish their pecuniary loss by satisfactory proof.
(Decisions of the supreme court of Spain, December 14,
1894; November 13 and 26, 1895; December 7, 1896;
September 30, 1898, and December 16, 1903; Sanz vs.
Lavin [1906], 6 Phil., 299; To Guioc-Co vs. Del Rosario
[1907], 8 Phil., 546; Diaz vs. San Juan Light & Transit Co.
[1911], 17 Porto Rico, 64.) The customary elements of
damages must be shown. But in certain cases, the law
presumes a loss because of the impossibility of exact
proof and computation in respect to the amount of the
loss sustained. In other words, the loss can be proved
either by evidence or by presumption. For instance,
where the relation of husband and wife or parent and
child exist, provided the child is shown to be a minor,
the law presumes a pecuniary loss to the survivor from
the fact of death, and it is not necessary to submit proof
as to such loss. (Chicago vs. Scholten [1874], 75 Ill., 468;
Rockford, etc. R. Co. vs. Delaney [1876], 82 Ill., 198; Chicago
vs. Hesing [1876], 83 Ill., 204; Delaware, etc. R. Co. vs.
Jones [1889], 128 Pa. St. 308; Atrops vs. Costello [1894], 8
Wash., 149; Mason vs. Southern R. Co. [1900], 58 S. C., 70;
McKechney vs. Redmond, 94 Ill. App., 470; Joliet vs.
Weston, 22 Ill. App., 225; Kelly vs. Twenty-third St. R. Co.,
14 N. Y. St., 699; Dunhene vs. Ohio L. Ins. etc. Co., 1 Disn.,
257; Diaz vs. San Juan Light & Transit Co., supra.)
In one of the cited cases, (City of Chicago vs. Hesing) on
an action to recover damages resulting to the parents,
laboring people, by the death of their child four years
old through negligence on the part of the City of
Chicago, the court said:
"Only pecuniary damages can be
recovered in such actions as this.
Nothing can be given as solace or for
bereavement suffered. Under
instructions declaring the true rule
for estimating the damages, the jury
found for plaintiff, in the sum of $800,
but one of the errors assigned is, the
amount found is excessive. As a
matter of law, we cannot so declare,
and as a matter of fact, how can we
know the amount is in excess of the
pecuniary damages sustained? When
proof is made of the age and
relationship of the deceased to next of
kin, the jury may estimate the
pecuniary damages from the facts
proven, in connection with their own
knowledge and experiences in
relation to matters of common
observation. It is not indispensable
there should be proof of actual
services of pecuniary value rendered
to next of kin, nor that any witness
should express an opinion as to the
value of services that may have been
or might be rendered. Where the
deceased was a minor, and left a
father who would have been entitled
to his services had he lived, the law
implies a pecuniary loss, for which
compensation, under the statute, may
be given."
The discretion of a jury, where there is a jury, or of the
trial court, where the court possesses such faculty, in
fixing the amount of damages, will not be interfered
with by the appellate court unless this discretion has
been palpably abused. Since in the very nature of
things, the value of a human life cannot be exactly
estimated in money, and since the elements which go to
make up any value are personal to each case, much
must depend on the good sense and sound judgment of
the jury or judge. The rule has been applied to the death
of minor children where there was nothing to show
passion, prejudice, or ignorance on the part of the jury.
(See 13 Cyc., 375-377.)
The right of action for death and the presumption in
favor of compensation being admitted, the difficulty of
estimating in money the worth of a life should not keep
a court from judicially compensating the injured party
as nearly as may be possible for the wrong. True, man
is incapable of measuring exactly in the delicate scales
of justice the value of a human life. True, the feelings of
a mother on seeing her little son torn and mangled —
expiring — dead — could never be assuaged with
money. True, all the treasure in nature's vaults could
not begin to compensate a parent for the loss of a
beloved child. Nevertheless, within the bounds of
436
human powers, the negligent should make reparation
for the loss.
Attempts at approximation in money for death have
been made. Many American statutes have arbitrarily
limited the amounts that could be recovered to five
thousand dollars or ten thousand dollars. The federal
Courts have intimated that these statutory limits should
only be taken as a guide to the permissible amount of
damages. (Cheatham vs. Red River Line [1893], 56 Fed.,
248; The Oceanic [1894], 61 Fed., 338; Farmers' L. & T.
Co. vs. Toledo A. A. & N. M. Ry. Co. [1895], 67 Fed.,
73.) In Louisiana, $2,500, $3,000, $4,000, and $6,000 were
allowed in the respective cases for the death of a child.
In Porto Rico, $1,000 and $1,500 has been allowed for
such a loss. In the Philippines, the rule has been in
criminal cases to allow as a matter of course P1,000 as
indemnity to the heirs of the deceased.
The foregoing is believed to be a fair statement of the
pertinent general principles. Before closing, notice
should be taken of the leading decisions of the supreme
court of Spain and the supreme court of Porto Rico. The
first is the decision of the supreme court of Spain of
December 14, 1894.
xxx xxx xxx
As will be readily perceived, having dug out the
applicable authorities, and having set them before us,
our task still is far from complete. On the one hand, the
obvious conclusion would be that, inasmuch as plaintiff
has failed to prove her pecuniary loss, she cannot
recover, or, for the same reason, to return the case to the
lower court for further evidence. This is the obvious
way. To one trained in the Common Law, and
inculcated with all the doctrines of the American law of
damages, it is the logical way. Is it the just and natural
way?
The first reply would be that the civil law authorities
are, like the common law cases, against recovery
without proof of loss. If necessary, however, the three
decisions just described, could be differentiated from
the present facts. The decision of the supreme court of
Spain, it is to be remembered, involved an action for the
death of a man of mature years. The first decision of the
supreme court of Porto Rico recognizes the principle of
presumptive recovery. The second decision of the
supreme court of Porto Rico concerned an action for the
death of a son of sufficient age to have an earning
capacity. None of these is our case. Here present is the
case of a young child whose death is caused by
wrongful act, leaving a poor mother to be the loser.
To answer in a different way, let us make a comparison.
The facts before us, and the facts before the supreme
court of Illinois in analogous cases, are substantially
identical. We have proof of the age of the deceased,
proof of the name of the next of kin, and proof that the
mother is a laboring woman. Under both the Common
Law and the Civil Law, plaintiff's damage, broadly
437
speaking, is for the loss of the services of the deceased,
or for support by the deceased. Plaintiff having shown
that the deceased was her son and that he was 8 or 9
years of age at the time of death, it was neither
necessary nor possible to prove loss of services or
support, or to prove special damage as if the object of
the loss had been a horse or other animal. No doubt the
damage could be greatly enhanced by showing the
personal characteristics of the deceased. Outside of this,
however, the pecuniary loss may be estimated from the
facts at hand with reference to the general knowledge
which all possess.
To force the plaintiff to prove her loss exactly would be
to ask the impossible — would be in effect to return to
the old common law rule which prohibits a recovery
Physical and gross criteria, as the hewing of wood and
carrying of water, are indeed no standards at all. Even
if the case was to be reopened, the plaintiff could with
extreme difficulty present any better evidence than that
now before us. As we have the basis of satisfactory facts
from which to infer the amount of damage, as the law
presumes a pecuniary loss because of the death, and as
the trial judge has made an intelligent computation, we
should rest here, with knowledge that, within the ken
of human wisdom, justice has been done.
On a careful consideration of the entire field of the law
on the subject of damages, we come to the conclusion
that the amount, in the nature of an indemnity allowed
by the trial court, is neither excessive nor immoderately
inadequate, and should stand.
Judgment, therefore, should be affirmed.
HUGO BORROMEO vs. THE MANILA ELECTRIC
RAILROAD AND LIGHT CO.
G.R. No. 18345, 5 December 1922, 44 Phil. 165
AVANCEÑA, J p:
On the evening of April 10, 1920, electric car No. 203 of
the defendant company was running along M. H. del
Pillar Street of the city of Manila, and on arriving at the
intersection of that street and Isaac Peril it stopped to
receive passengers. At that moment the plaintiff
approached the car with his two children, 12 and 16
years old, respectively, and putting his two children on
board the car first, he proceeded to follow, but in
attempting to board he fell off and was dragged some
distance by the car, one of the year wheels passing over
his left foot. As a result of this accident, plaintiff's left
foot was amputated, making it necessary for him to use
an artificial foot in order to able to walk.
The plaintiff brought this action to recover from the
defendant damages for the injury sustained by him by
reason of the accident. The trial court sentenced the
defendant to pay the sum of P5,400, with legal interest
thereon from the date of the judgment. From this
judgment both parties have appealed. Pending the
cause in this court, the appeal taken by the defendant
was dismissed.
The defendant's appeal having been dismissed, and the
only error assigned by the plaintiff having reference to
the amount of the damages to which he is entitled, we
accept the finding of the trial court that the defendant is
liable, and that plaintiff's fall was due entirely to the car
having been suddenly set in motion at the moment that
the plaintiff was about to board it, but without having
gained a sure footing on the running board, and that
the subsequent loss of his left foot was due to the
carelessness and negligence of the defendant's
employees in charge of car No. 203. We are convinced,
moreover, that this finding is supported by the
evidence.
The sum of P5,400 awarded by the trial court to plaintiff
as damages is made up to the expense incurred for
hospital, medicine, physician's fees on account of this
accident. Although the plaintiff asks for more on this
account, we believe, after an examination of the
evidence, that this amount is really all that he is entitled
to on this account.
However, the trial court has not allowed the plaintiff
anything for the loss of his left foot, which has
incapacitated him from following his profession and we
believe that this is an error. The obligation to indemnity
for injury caused by negligence under article 1902 of the
Civil Code, includes the two kinds of damages
specified in article 1106 of the same Code; to wit,
damages for the loss actually sustained and for the
profit which the injured party may have failed to
realize.
It appears that at the time of the accident, the plaintiff
was chief engineer of the merchant steamer San Nicolas
with a monthly salary of P375, and having lost his left
foot, thereby necessitating the use of an artificial foot in
order to be able to walk, he can no longer be employed
as a marine engineer on any vessel, and, as a matter of
fact, the Collector of Custom has refused to grant him a
license to follow his profession as marine engineer. It
also appears that the plaintiff, who is 45 years old, has
been engaged in this profession for sixteen years (since
1904), and that he knows no other profession whereby
he can earn his living. It is evident that this damage
must also be indemnified. The plaintiff's incapacity to
continue in the practice of his profession as marine
engineer has put an end to one of those activities and
has certainly destroyed a source — the principal source
— of his professional earnings in the future. Taking into
account the age of the plaintiff and the salary he
derived from this profession from the exercise of which
he has been deprived, we fix this future damage at
P2,000.
The judgment appealed from is modified as regards the
plaintiffs appeal, and he is allowed, besides the amount
awarded him in the judgment, the sun of P2,000,
without special pronouncement as to cost. so ordered.
Araullo, C.J., Street, Malcolm, Villamor, Ostrand, Johns
and Romualdez, JJ., concur.
VILLA REY TRANSIT, INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. L-25499, 18 February 1970, 31 SCRA 511
CONCEPCION, C.J p:
Petitioner, Villa Rey Transit, Inc., seeks the review by
certiorari of a decision of the Court of Appeals
affirming that of the Court of First Instance of
Pangasinan. The basic facts are set forth in said decision
of the Court of Appeals, from which We quote:
"At about 1:30 in the morning of March 17, 1960, an
Isuzu First Class passenger bus owned and operated by
the defendant, bearing Plate No. TPU-14871-Bulacan
and driven by Laureano Casim, left Lingayen,
Pangasinan, for Manila. Among its paying passengers
was the deceased, Policronio Quintos, Jr. who sat on the
first seat, second row, right side of the bus. At about
4:55 o'clock a.m. when the vehicle was nearing the
northern approach of the Sadsaran Bridge on the
national highway in barrio Sto. Domingo, municipality
of Minalin, Pampanga, it frontally hit the rear side of a
bullcart filled with hay. As a result the end of a bamboo
pole placed on top of the hayload and tied to the cart to
hold it in place, hit the right side of the windshield of
the bus. The protruding end of the bamboo pole, about
8 feet long from the rear of the bullcart, penetrated
through the glass windshield and landed on the face of
Policronio Quintos, Jr. who, because of the impact, fell
from his seat and was sprawled on the floor. The pole
landed on his left eye and the bone of the left side of his
face was fractured. He suffered other multiple wounds
and was rendered unconscious due, among other
causes to severe cerebral concussion. A La Mallorca
passenger bus going in the opposite direction towards
San Fernando, Pampanga, reached the scene of the
mishap and it was stopped by Patrolman Felino Bacani
of the municipal police force of Minalin who, in the
meantime, had gone to the scene to investigate.
Patrolman Bacani placed Policronio Quintos, Jr. and
three other injured men who rode on the bullcart
aboard the La Mallorca bus and brought them to the
provincial hospital of Pampanga at San Fernando for
medical assistance. Notwithstanding such assistance,
Policronio Quintos, Jr. died at 3:15 p.m. on the same
day, March 17, 1960, due to traumatic shock due to
cerebral injuries."
The private respondents, Trinidad, Prima and Julita, all
surnamed Quintos, are the sisters and only surviving
heirs of Policronio Quintos, Jr., who died single, leaving
no descendants nor ascendants. Said respondents
herein brought this action against herein petitioner,
Villa Rey Transit, Inc., as owner and operator of said
passenger bus, bearing Plate No. TPU-14871-Bulacan,
for breach of the contract of carriage between said
petitioner and the deceased Policronio Quintos, Jr., to
438
recover the aggregate sum of P63,750.00 as damages,
including attorney's fees. Said petitioner — defendant
in the court of first instance — contended that the
mishap was due to a fortuitous event, but this pretense
was rejected by the trial court and the Court of Appeals,
both of which found that the accident and the death of
Policronio had been due to the negligence of the bus
driver, for whom petitioner was liable under its
contract of carriage with the deceased. In the language
of His Honor, the trial Judge:
"The mishap was not the result of any
unforeseeable fortuitous event or
emergency but was the direct result
of the negligence of the driver of the
defendant. The defendant must,
therefore, respond for damages
resulting from its breach of contract
for carriage. As the complaint alleged
a total damage of only P63,750.00
although as elsewhere shown in this
decision the damages for wake and
burial expenses, loss of income, death
of the victim, and attorneys fee reach
the aggregate of P79,615.95, this
Court finds it just that said damages
be assessed at total of only P63,750.00
as prayed for in plaintiffs' amended
complaint."
The dispositive part of the decision of the trial Court
reads:
"WHEREFORE, judgment is hereby
rendered ordering the defendant to
pay to the plaintiffs the amount of
P63,750.00 as damages for breach of
contract of carriage resulting from the
death of Policronio Quintos, Jr.”
which, as above indicated, was affirmed by the Court of
Appeals. Hence, the present petition for review on
certiorari, filed by Villa Rey Transit, Inc.
The only issue raised in this appeal is the amount of
damages recoverable by private respondents herein.
The determination of such amount depends, mainly
upon two (2) factors, namely: (1) the number of years
on the basis of which the damages shall be computed
and (2) the rate at which the losses sustained by said
respondents should be fixed.
The first factor was based by the trial court — the view
of which was concurred in by the Court of Appeals —
upon the life expectancy of Policronio Quintos, Jr.,
which was placed at 33-1/3 years — he being over 29
years of age (or around 30 years for purposes of
computation) at the time of his demise — by applying
the formula (2/3 x [80-30] = life expectancy) adopted in
the American Expectancy Table of Mortality or the
actuarial of Combined Experience Table of Mortality.
Upon the other hand, petitioner maintains that the
439
lower courts had erred in adopting said formula and in
not acting in accordance with Alcantara v. Surro in
which the damages were computed on a four (4) year
basis, despite the fact that the victim therein was 39
years old, at the time of his death, and had a life
expectancy of 28.90 years.
The case cited is not, however, controlling in the one at
bar. In the Alcantara case, none of the parties had
questioned the propriety of the four-year basis adopted
by the trial court in making its award of damages. Both
parties appealed, but only as regards the amount
thereof. The plaintiffs assailed the non-inclusion, in its
computation, of the bonus that the corporation, which
was the victim's employer, had awarded to deserving
officers and employees, based upon the profits earned
less than two (2) months before the accident that
resulted in his death. The defendants, in turn, objected
to the sum awarded for the fourth year, which was
treble that of the previous years, based upon the
increases given, in that fourth year, to other employees
of the same corporation. Neither this objection nor said
claim for inclusion of the bonus was sustained by this
Court. Accordingly, the same had not thereby laid
down any rule on the length of time to be used in the
computation of damages. On the contrary, it declared:
"The determination of the indemnity
to be awarded to the heirs of a
deceased person has therefore no
fixed basis. Much is left to the
discretion of the court considering
the moral and material damages
involved, and so it has been said that
"(t)here can be no exact or uniform
rule for measuring the value of a
human life and the measure of
damages cannot be arrived at by
precise mathematical calculation, but
the amount recoverable depends on
the particular facts and circumstances
of each case. The life expectancy of
the deceased or of the beneficiary,
whichever is shorter, is an important
factor.' (25 C.J.S. 1241.) Other factors
that are usually considered are: (1)
pecuniary loss to plaintiff or
beneficiary (25 C.J.S. 1243-1250); (2)
loss of support (25 C.J.S., 1250-1251);
(3) loss of service (25 C.J.S. 1251-
1254); (4) loss of society (25 C.J.S.
1254-1255); (5) mental suffering of
beneficiaries (25 C.J.S. 1258-1259); and
(6) medical and funeral expenses (25
C.J.S. 1254-1260)."
Thus, life expectancy is, not only relevant, but, also, an
important element in fixing the amount recoverable by
private respondents herein. Although it is not the sole
element determinative of said amount, no cogent
reason has been given to warrant its disregard and the
adoption, in the case at bar, of a purely arbitrary
standard. such as a four-year rule. In short, the Court of
Appeals has not erred in basing the computation of
petitioner's liability upon the life expectancy of
Policronio Quintos, Jr.
With respect to the rate at which the damages shall be
computed, petitioner impugns the decision appealed
from upon the ground that the damages awarded
therein will have to be paid now, whereas most of those
sought to be indemnified will be suffered years later.
This argument is basically true, and this is, perhaps,
one of the reasons why the Alcantara case points out
the absence of a "fixed basis" for the ascertainment of
the damages recoverable in litigations like the one at
bar. Just the same, the force of the said argument of
petitioner herein is offset by the fact that, although
payment of the award in the case at bar will have to
take place upon the finality of the decision therein, the
liability of petitioner herein had been fixed at the rate
only of P2,184.00 a year, which is the annual salary of
Policronio Quintos, Jr. at the time of his death, as a
young "training assistant" in the Bacnotan Cement
Industries, Inc. In other words, unlike the Alcantara
case, on which petitioner relies, the lower courts did not
consider, In the present case, Policronio's potentiality
and capacity to increase his future income. Indeed,
upon the conclusion of his training period, he was
supposed to have a better job and be promoted from
time to time, and, hence, to earn more, if not —
considering the growing importance of trade,
commerce and industry and the concomitant rise in the
income level of officers and employees therein — much
more.
At this juncture, it should be noted, also, that We are
mainly concerned with the determination of the losses
or damages sustained by the Private respondents, as
dependents and intestate heirs of the deceased, and that
said damages consist, not of the full amount of his
earnings, but of the support they received or would
have received from him had he not died in consequence
of the negligence of petitioner's agent. In fixing the
amount of that support, We must reckon with the
"necessary expenses of his own living", which should be
deducted from his earnings. Thus, it has been
consistently held that earning capacity, as an element of
damages to one's estate for his death by wrongful act is
necessarily his net earning capacity or his capacity to
acquire money, "less the necessary expense for his own
living. Stated otherwise, the amount recoverable is not
loss of the entire earning, but rather the loss of that
portion of the earnings which the beneficiary would
have received. In other words, only net earnings, not
gross earning, are to be considered 5 that is, the total
of the earnings less expenses necessary in creation of
such earnings or income 6 and less living and other
incidental expenses.
All things considered, We are of the opinion that it is
fair and reasonable to fix the deductible living and
other expenses of the deceased at the sum of P1,184.00 a
year, or about P100.00 a month, and that, consequently,
the loss sustained by his sisters may be roughly
estimated at P1,000.00 a year or P33,333.33 for the 33-
1/3 years of his life expectancy. To this sum of
P33,333.33, the following should be added: (a)
P12,000.00, pursuant to Arts. 104 and 107 of the Revised
Penal Code, in relation to Article 2206 of our Civil
Code, as construed and applied by this Court; 8 (b)
P1,727.95, actually spent by private respondents for
medical and burial expenses: and (c) attorney's fee,
which was fixed by the trial court, at P500.00, but
which, in view of the appeal taken by petitioner herein,
first to the Court of Appeals and later to this Supreme
Court, should be increased to P2,500.00. In other words,
the amount adjudged in the decision appealed from
should be reduced to the aggregate sum of P49,561.28,
with interest thereon, at the legal rate, from December
29, 1961, date of the promulgation of the decision of the
trial court.
Thus modified, said decision and that of the Court of
Appeals are hereby affirmed, in all other respects, with
costs against petitioner, Villa Rey Transit, Inc. It is so
ordered.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Fernando, Teehankee, Barredo and Villamor, JJ.,
concur.
DAVILA, ET AL. vs. PHILIPPINE AIRLINES, INC.
G.R. No. L-28512, 28 February 1973, 49 SCRA 497
MAKALINTAL, J p:
In Civil Case No. 5728 of the Court of First Instance of
Iloilo (Pedro R. Davila and Preciosa C. Tirol, plaintiffs,
vs. Philippine Air Lines, Inc., defendant) judgment was
rendered ordering the defendant to pay the plaintiffs
various sums of money, as follows:
"(1) For the death of Pedro T. Davila, Jr. the amount of
P6,000.00;
(2) For the loss of the earning capacity of the deceased
at the rate of P12,000.00 per annum for five (5)
years in the amount of Sixty Thousand Pesos.
(P60,000.00);
(3) For moral damages in favor of the plaintiffs Ten
Thousand Pesos (P10,000.00);
(4) For exemplary damages in the amount of Ten
Thousand Pesos P(10,000.00);
(5) For actual damages the amount of Five Thousand
Pesos (P5,000.00) broken down to as follows: A
rolex watch valued at P600.00; a pistol worth
P300.00; burial expenses P600.00; for the lot and the
mausoleum P3,500.00;
(6) For Attorney's fees the amount of Ten Thousand
Pesos (P10,000.00) or a total amount of One
Hundred and One Thousand Pesos (P101,000.00)
To pay the costs of this proceedings."
Both parties appealed directly to this Court in view of
the aggregate of the amounts awarded, the judgment
440
having been rendered before the effectivity of Rep. Act
No. 5440. In this appeal the plaintiffs seek an increase in
said amounts, and the defendant, complete exoneration
from, or at least mitigation of, liability.
The case arose from the tragic crash of a passenger
plane of the defendant which took the lives of all its
crew and passengers. The plane, identified as PI-C133,
was a DC-3 type of aircraft, manufactured in 1942 and
acquired by the defendant in 1948. It had flown almost
18,000 hours at the time of its ill-fated flight. Despite its
age, however, it had been certified as airworthy by the
Civil Aeronautics Administration. On November 23,
1960, at 5:30 in the afternoon, it took off from the
Mandurriao Airport, Iloilo, on its way to Manila, with
33 people on board, including the plane's complement.
It did not reach its destination, but crashed at Mt. Baco,
Mindoro, one hour and fifteen minutes after take-off. A
massive search was undertaken by the defendant and
by other parties as soon as it was realized that the
plane's arrival in Manila was overdue. The plaintiffs,
parents of Pedro T. Davila, Jr., who was one of the
passengers, had no definite news of what had
happened to their son, getting what information they
could only from conflicting newspaper reports, until
they received, on December 19, 1960, a letter of
condolence from the defendant's president Andres
Soriano, informing them that their son had died in the
crash. And it was only on December 29 that his body
was recovered and taken back to Iloilo.
The issues before the trial court, and now before Us in
this appeal, are whether or not the defendant is liable
for violation of its contract of carriage and if so, for how
much. The provisions of the Civil Code on this
substantive question of liability are clear and explicit.
Article 1733 binds common carriers, "from the nature of
their business and by reasons of public policy, . . . to
observe extraordinary diligence in the vigilance.. for the
safety of the passengers transported by them according
to all the circumstances of each case." Article 1755
establishes the standard of care required of a common
carrier, which is, "to carry the passengers safely as far as
human care and foresight can provide, using the
utmost diligence of very cautious persons, with due
regard for all the circumstances." Article 1756 fixes the
burden of proof by providing that "in case of death of
or injuries to passengers, common carriers are
presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence as prescribed in Articles 1733
and 1755." Lastly, Article 1757 states that "the
responsibility of a common carrier for the safety of
passengers . . . cannot be dispensed with or lessened by
stipulation, by the posting of notices, by statements on
tickets, or otherwise."
The route prescribed by the Civil Aeronautics
Administration for the flight of plane PI-C113 in the
afternoon of November 23, 1960 was Iloilo-Romblon-
Manila, the latter stage, denominated as airway "Amber
I," being a straight lane from Romblon to Manila. The
441
prescribed elevation of the flight was 6,000 ft. The plane
reported its position after take-off and again when it
was abeam the Roxas homer. However, it did not
intercept airway "Amber I" over Romblon as it was
supposed to do, and the pilot did not give his position
then although Romblon was a compulsory checking
point. The fact was that the plane had deviated from
the prescribed route by 32 miles to the west when it
crashed at Mt. Baco. The reading of the altimeter of the
plane when its wreckage was found was 6,800 ft.
There is a suggestion that in the course of the flight
between Romblon and Mindoro the aircraft was drifted
westward by the cross-winds then blowing in the
region. The defendant, however, has not given a
definite explanation as to why, if such was the case, the
pilot failed to make the necessary correction in his flight
to compensate for the drift. According to the
defendant's witness, Maj. Mijares, Chief of the Aviation
Safety Division of the Civil Aeronautics Administration
and Chairman of the CAA Investigating Committee,
there was a navigational error, to which several factors
contributed: "the weather observation at that time from
the Weather Bureau was not so good between Mt. Baco
and Romblon and the wind aloft was quite strong,
which would be also one of the causes for the drifting
of the aircraft; and the other strong probability, I would
say, would be the malfunction of the aircraft's
navigational instrument." He further explained that "a
cross-wind can drift the plane if the pilot will not make
the necessary correction, if his navigational instrument
is malfunctioning and the visual reference outside the
aircraft could not make the necessary corrections."
There is nothing in the testimony of Maj. Mijares to
show just how strong the cross-winds were in the
region at the time, although in the investigation of the
accident by the Senate Committee on transportation
there was testimony that the cross-winds had a velocity
of either 20 to 25 knots or 25 to 35 knots an hour.
Considering the relatively short distance from Romblon
to Mt. Baco and the brief span of time it would take to
fly that distance, cross-winds with the velocity stated
could not have possibly deviated the plane by as much
as 32 miles.
The defendant points out that the navigational
instrument on board the plane consisted of two (2) sets
of automatic direction finders (ADF) which, when
found after the crash, showed a reading that the aircraft
was heading north, which was the proper flight
direction. This point, however, is of no vital significance
in this case since it does not explain why the aircraft
was 32 miles off its prescribed route in the first place. It
is suggested that the pilot did not notice the drift of his
plane because of poor visibility due to thick clouds,
which prevented him from making the corresponding
correction on the basis of visual references to the terrain
outside. But according to Maj. Mijares himself the
report from the Weather Bureau at the time showed
that visibility was 15 miles between Romblon and Mt.
Baco and that the clouds from 2,700 to 7,000 ft.
elevation were "scattered." And the profile of the
probable weather cross-section along airway "Amber I"
during the flight (Exh. 33-A) shows that at 6,000 ft. the
airplane was clear and free of clouds. The suggestion
therefore that the pilot was practically flying blind and
consequently failed to notice the drift of the aircraft is
not justified by the evidence. Indeed even the
investigating team of the defendant under the
chairmanship of Capt. Jaime Manzano concluded in its
report that "based on the limited evidences available,
the board is of the opinion that the probable cause was
the inability of the pilot to intersect airway 'Amber I'
over Romblon and to maintain track within its
designated airway lane for reasons unknown."
What is undisputed therefore is that the pilot did not
follow the route prescribed for his flight, at least
between Romblon and Manila. Since up to that point
over Romblon, where he was supposed to intersect
airway "Amber I," the weather was clear, the most
reasonable conclusion is that his failure to do so was
intentional, and that he probably wanted to fly on a
straight line to Manila. It was a violation of air-traffic
rules to which, under the circumstances, the accident
may be directly attributable.
In any case, absent a satisfactory explanation on the
part of the defendant as to how and why the accident
occurred, the presumption is that it was at fault, under
Article 1756 of the Civil Code.
The next question relates to the amount of damages that
should be awarded to the plaintiffs, parents of the
deceased. The trial court fixed the indemnity for his
death in the amount of P6,000.00. Pursuant to current
jurisprudence on the point it should be increased to
P12,000.00.
The deceased was employed as manager of a radio
station, from which he was earning P8,400.00 a year,
consisting of a monthly salary of P600.00 and allowance
of P100.00. As a lawyer and junior partner of his father
in the law office, he had an annual income of P3,600.00.
From farming he was getting an average of P3,000.00.
All in all therefore the deceased had gross earnings of
P15,000.00 a year.
According to Article 2206, paragraph (1), of the Civil
Code, "the defendant shall be liable for the loss of the
earning capacity of the deceased and indemnity shall be
paid to the heirs of the latter." This Article, while
referring to "damages for death caused by crime or
quasi-delict," is expressly made applicable by Article
1764 "to the death of a passenger caused by the breach
of contract by a common carrier."
The deceased, Pedro Davila, Jr., was single and 30 years
of age when he died. At that age one's normal life
expectancy is 33-1/3 years, according to the formula
(2/3 x [80 — 30]) adopted by this Court in the case of
Villa Rey Transit, Inc. vs. Court of Appeals on the basis of
the American Expectancy Table of Mortality or the
Actuarial of Combined Experience Table of Mortality.
However, although the deceased was in relatively good
health, his medical history shows that he had
complained of and been treated for such ailments as
backaches, chest pains and occasional feelings of
tiredness. It is reasonable to make an allowance for
these circumstances and consider, for purposes of this
case, a reduction of his life expectancy to 25 years.
In the same case of Villa Rey Transit this Court stated: ".
. .earning capacity, as an element of damages to one's
estate for his death by wrongful act is necessarily his
net earning capacity or his capacity to acquire money,
less the necessary expense for his own living. Stated
otherwise, the amount recoverable is not loss of the
entire earnings, but rather the loss of that portion of the
earnings which the beneficiary would have received. In
other words, only net earnings, not gross earnings, are
to be considered, that is, the total of the earnings less
expenses necessary in the creation of such earnings or
income and less living and other incidental expenses."
Considering the fact that the deceased was getting his
income from three (3) different sources, namely, from
managing a radio station, from law practice and from
farming, the expenses incidental to the generation of
such income were necessarily more than if he had only
one source. Together with his living expenses, a
deduction of P600.00 a month, or P7,200.00 a year,
seems to Us reasonable, leaving a net yearly income of
P7,800.00. This amount, multiplied by 25 years, or
P195,000.00 is the amount which should be awarded to
the plaintiffs in this particular respect.
Actual losses sustained consist of the following, as
found by the trial court: "Rolex Watch — P600.00; pistol
— P300.00; Burial Expenses — P600.00; and cost of
cemetery lot and mausoleum — P3,500.00."
Under Article 2206, in relation to Article 1764, of the
Civil Code, the parents of the deceased are entitled to
moral damages for their mental anguish. The trial court
awarded P10,000.00 in this concept, and We find no
justification to change the award, considering the long
period of uncertainty and suffering the plaintiffs
underwent from November 23, when the plane crash
occurred, to December 19, when they received a letter
from the defendant's president confirming the death of
their son, and again to the following December 29,
when his body was finally recovered and taken back to
them.
With respect to the award of P10,000.00 as exemplary
damages, it is Our opinion that the same should be
eliminated. According to Article 2232 of the Civil Code,
in contracts and quasi-contracts the court may award
exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner.
The failure of the defendant here to exercise
extraordinary diligence, as required by law, does not
amount to anyone of the circumstances contemplated in
the said provision.
442

The trial court has awarded attorney's fees of
P10,000.00. We do not find this award groundless or the
amount thereof unreasonable.
The total of the different items above enumerated is
P232,000.00. The judgment of the court a quo is
therefore modified accordingly and the defendant is
ordered to pay the said amount to the plaintiffs, with
legal interest thereon from the finality of this judgment.
With costs against the defendant.
Concepcion, C.J., Zaldivar, Castro, Fernando,
Teehankee, Barredo, Makasiar, Antonio and Esguerra,
JJ., concur.
THE PEOPLE OF THE PHILIPPINES vs.
GUMERCINDO QUILATON y EBAROLA
G.R. No. 69666, 23 January 1992, 205 SCRA 288
FELICIANO, J p:
Appellant Gumercindo Quilaton was found guilty of
murder and sentenced to suffer the penalty of reclusion
perpetua, and required to pay the heirs of the offended
party various amounts of money.
Appellant was tried and convicted under the following
information:
"That on or about the 16th day of August,
1983, in the municipality of San Simon,
province of Pampanga, Philippines, and
within the jurisdiction of this Honorable
Court, the above-named accused
GUMERCINDO QUILATON y EBAROLA
alias 'ROBERTO SANDOVAL' armed with a
knife (balisong), with deliberate intent to kill,
by means of treachery and with evident
premeditation, did then and there wilfully,
unlawfully, and feloniously attack, assault and
wound ROLANDO S. MANAHAN, thereby
inflicting upon him serious and fatal injuries,
which directly caused the death of the said
Rolando S. Manahan.
All contrary to law."
Appellant pleaded not guilty on arraignment and the
case proceeded to trial. In time, the trial court rendered
a decision with the following dispositive portion:
"WHEREFORE, premises considered, the
Court hereby finds the accused
GUMERCINDO QUILATON y EBAROLA,
also known as Roberto Sandoval guilty
beyond reasonable doubt of the crime of
Murder as charged in the Information and
hereby sentences him to suffer the penalty of
Reclusion Perpetua.
443
The Court further sentences him to indemnify
the heirs of Rolando S. Manahan the sum of
One Hundred Thousand (P100,000.00) Pesos,
Philippine Currency, for the death of Rolando
S. Manahan, the sum of Twenty Six Thousand
Four Hundred Forty Five (P26,445.00) Pesos,
Philippine Currency, for actual damages
incurred for burial and other expenses of the
deceased, the sum of Two Hundred Fifty
Thousand (P250,000.00) Pesos, Philippine
Currency, or moral damages. The Court
further orders the accused to pay the costs.
SO ORDERED."
Appellant has assigned the following errors in his brief:
1. The court a quo gravely erred in not finding that
the victim was armed with a bladed weapon and
was the aggressor.
2. The court a quo gravely erred in finding that the
killing of the victim was qualified by treachery.
3. The court a quo gravely erred in not finding that
the accused-appellant acted in self-defense.
xxx xxx xxx
The trial court instead gave credence to the testimony
of Lamberto Abugan who had seen appellant initiate a
deadly assault on the victim Rolando Manahan by
drawing a fan knife from his right hip and by
announcing his intention to kill Manahan. The ordinary
rule is that findings of fact of the trial court on the
credibility of witnesses are entitled to great respect
considering that the trial court was in a position to
evaluate the deportment of witnesses while testifying.
The Court does not see any compelling reason to depart
from the general rule.
The Court, however, agrees with the Solicitor General
that appellant should be convicted of homicide only.
The information here filed specified treachery and
evident premeditation as qualifying circumstances. The
trial court disregarded evident premeditation, holding
that the prosecution had not adequately established the
presence of that circumstance. But it considered
appellant's act of stabbing the unarmed Rolando
Manahan as treachery and took this into account in
convicting appellant of murder.
xxx xxx xxx
The trial court had ordered appellant to pay the heirs of
Rolando Manahan P26,445.00 as actual damages,
representing interment and related expenses incurred
by the heirs of Rolando Manahan. The brother of
Rolando Manahan testified on this matter and
submitted various receipts in support of their claim for
actual damages; appellant did not controvert this claim
nor the amount thereof.

The amount of P100,000.00 awarded to the heirs of
Rolando Manahan as indemnity for death must,
however, be reduced to P50,000.00 conformably with
prevailing jurisprudence on the matter. The propriety
of the award of P250,000.00 by the trial court in concept
of moral damages needs some analysis.
The monetary liabilities of a person accused and
convicted of a crime are specified in Article 2206 of the
Civil Code:
"ARTICLE 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. In addition:
(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;
(2) If the deceased was obliged to
give support according to the
provisions of article 291, the
recipient who is not an heir
called to the decedent's
inheritance by the law of testate
or intestate succession, may
demand support from the person
causing the death, for a period
not exceeding five years, the
exact duration to be fixed by the
court;
(3) The spouses, legitimate and
illegitimate descendants and
ascendants of the deceased may
demand moral damages for
mental anguish by reason of the
death of the deceased."
(Emphasis supplied).
Aside, therefore, from the ordinary indemnity for death
which is currently set by case law at P50,000.00,
appellant is obliged: (1) to compensate the heirs of
Rolando Manahan for the latter's loss of earning
capacity; (2) to give support in the form of expenses for
education to the sisters of Rolando Manahan who had
been dependent on him therefor; and (3) to pay the
heirs of Rolando Manahan moral damages for the
mental anguish suffered by them. In the instant case,
the trial court lumped these monetary obligations into
what it called "moral damages."
The more important variables taken into account in
determining the compensable amount of lost earnings
are: (1) the number of years for which the victim would
otherwise have lived; and (2) the rate of loss sustained
by the heirs of the deceased. In Villa Rey Transit, Inc. v.
Court of Appeals (supra), the Court computed the first
factor, i.e. life expectancy, by applying the formula (2/3
x [80 age at death]) adopted in the American
Expectancy Table of Mortality or the actuarial
Combined Experience Table of Mortality. That formula
was followed by the Court in cases subsequent to Villa
Rey Transit, e.g. Philippine Airlines v. Court of Appeals,
People v. Daniel (supra); and Dangwa Transportation Co.,
Inc. v. Court of Appeals. The Court notes that the formula
used in Villa Rey Transit was based on a table derived
from actuarial experience prior to 1970 when the
decision in Villa Rey Transit was promulgated. Actuarial
experience subsequent to 1970 has, however, changed
and indicates a longer life expectancy in the Philippines
due to conditions including, among other things,
advances in medical science, improved nutrition and
food supply, diet consciousness and health
maintenance. The 1970 mortality table was updated in
1980 to reflect the changes of conditions.
Considering that Rolando Manahan was 26 years of age
at the time of death, he was expected to live for another
46 years. This is derived by using the generally
accepted formula in computing for life expectancy,
based on the 1980 CSO table:
(Lx+1, Lx+2, .., Lx+n),
Lx
where
n =100 - x
x = age upon death
L = number of people in sample surviving after number
of years.
But a man does not normally continue working to earn
money up to the final month or year of his life; hence 46
years could be reasonably reduced to 39 years. Besides,
Rolando Manahan was a government employee who is
expected to retire at the age of 65. If there are 261
working days in a year and Rolando Manahan was
receiving P23.00 a day, Rolando Manahan's gross
earnings would be approximately P234,000.00. A
reasonable amount must be deducted therefrom that
would represent Rolando Manahan's necessary
expenses had he been living, in this case P120,000.00.
The net or compensable earnings lost by reason of
Rolando Manahan's death is, accordingly, P114,000.00.
Finally, the Court in the exercise of its discretion,
considers it appropriate and reasonable to award the
amount of P20,000.00 to the heirs of Rolando Manahan
by way of moral damages. Ruben Manahan, brother of
Rolando Manahan, testified that their mother suffered a
444
mild stroke upon learning of Rolando Manahan's
slaying; this eventually resulted in the mother's semi-
paralysis.
WHEREFORE, the Decision of the Regional Trial Court,
Branch 54, Macabebe, Pampanga is hereby SET ASIDE;
the Court instead finds appellant Gumercindo Quilaton
guilty of HOMICIDE. Applying the Indeterminate
Sentence Law, appellant is hereby SENTENCED to
suffer imprisonment for an indeterminate period
ranging from ten (10) years as minimum to seventeen
(17) years and four (4) months as maximum. Appellant
is ORDERED to pay the heirs of Rolando Manahan the
following amounts:
1. P50,000.00 as indemnity for death;
2. P26,445.00 as actual damages;
3. P114,000.00 by way of lost earnings;
4. P10,000.00 by way of educational assistance to
Rolando Manahan's two (2) sisters; and
5. P20,000.00 as moral damages.
Costs against appellant.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ .,
concur.
SALVADOR vs. PEOPLE OF THE PHILIPPINES
G.R. No. 164266, 23 July 2008
NACHURA, J p:
This is a Petition for Review on Certiorari under Rule
45 of the Rules of Court filed by petitioner Nover Bryan
Salvador y De Leon, assailing the Court of Appeals
(CA) Decision 1 dated February 26, 2004 which
affirmed the Regional Trial Court (RTC) Decision dated
October 26, 2001. Likewise assailed is the appellate
court's Resolution dated July 6, 2004 denying
petitioner's motion for reconsideration.
The facts of the case follow:
Spouses Ernesto and Margarita Zuñiga had three
daughters, namely: Marianne, Mary Ann and the victim
Arlene. Mary Ann was married to the petitioner herein.
The Zuñiga family, including Mary Ann and the
petitioner were living together at 550 Coloong I,
Valenzuela City. Their residence had three bedrooms —
one for the Zuñiga spouses; the other for Marianne and
Arlene; and the last for Mary Ann and the petitioner.
On September 20, 1997, the Zuñiga spouses, together
with Marianne, went to Bulacan to attend the wake of
Ernesto's mother; while Mary Ann with her new born
child, and Arlene, stayed at their Valenzuela home.
Petitioner, at that time, asked permission to attend a
birthday party.
445
At about 9:00 in the evening, petitioner, accompanied
by Eduardo Palomares, returned home to get some
karaoke tapes to be used at the birthday party. They
thereafter went back to the party and stayed there until
12 midnight before heading back home.
At 4:30 in the morning, the following day, the Zuñiga
spouses and Marianne arrived home. They opened the
main door which was then locked. After preparing for
sleep, Marianne proceeded to the room which she was
sharing with Arlene. There she saw Arlene, who
suffered stab wounds, already dead. After seeing
Arlene's body, the Zuñiga spouses rushed to the room
of Mary Ann and the petitioner. While Mary Ann
proceeded to Arlene's room, petitioner stayed at the
sala and cried. He was later seen embracing Mary Ann
and telling her that he was innocent.
At around 5:00 in the morning, police investigators
arrived. The police found no forcible entry into the
house; no valuables were missing; and no bloodstains
in other parts of the house except Arlene's room. They
likewise discovered, on top of the kitchen table,
petitioner's underwear (briefs), gray t-shirt and short
pants. 7 They further found hair strands on Arlene's
bed. These pieces of evidence were brought to the
laboratory for examination.
On September 21, 1997, Dr. Noel Minay (Dr. Minay), a
medico-legal of the National Bureau of Investigation
(NBI) conducted an autopsy of the deceased. He found
that Arlene suffered 21 stab wounds produced by a
pointed instrument, one side of which was sharp like a
balisong or a kitchen knife. He further declared the
possibility that Arlene struggled with the assailant
before she died.
The NBI Forensic Biologist also examined petitioner's
briefs, t-shirt and short pants, and found that the briefs
and shirt were positive of type "O" human blood,
Arlene's blood type. The NBI Forensic Chemist,
subsequently, conducted DNA Analysis on the
following specimens:
1. One (1) dirty white Hanford brief[s];
2. One (1) light gray t-shirt with DKNY print infront;
3. Several strands of hair allegedly recovered in the
bedroom of [the] victim;
4. Buccal swabs taken from the following:
a. ERNESTO ZUÑIGA (victim's father)
b. MARGARITA ZUÑIGA (victim's mother)
c. NOVER BRYAN SALVADOR (suspect)
The examination of specimen no. 1 yielded a negative
result for the presence of human DNA; while specimen
nos. 2, 3, and 4 a-c, yielded positive results.
Petitioner was thus charged with Homicide in an
Information dated April 8, 1998, the accusatory portion
of which reads:
That on or about the 20th day of September, 1997, in
Valenzuela, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, without any justifiable cause and with
deliberate intent to kill, did then and there willfully,
unlawfully and feloniously assault and stab one
ARLENE ZUÑIGA, hitting on the different parts of her
body, which led to the death of said Arlene Zuñiga.
CONTRARY TO LAW.
The aforementioned facts were established during the
prosecution's presentation of evidence. It was further
testified to by the witnesses that — petitioner owned a
knife otherwise known as balisong, which he usually
brought every time he went out. Ill motive was shown
by petitioner's previous act of peeping through the
bathroom and Arlene's room on two occasions — while
she was taking a bath and while she was inside the
room with Marianne.
For his part, all that the petitioner could offer was bare
denial of the accusations against him.
On October 26, 2001, the RTC rendered a Decision
finding the petitioner guilty of homicide. The
dispositive portion of which reads:
WHEREFORE, judgment is hereby
rendered finding accused NOVER
BRYAN SALVADOR y DE LEON
guilty beyond reasonable doubt and
as principal of the crime of homicide
as defined and penalized under
Article 249 of the Revised Penal
Code, without any attending
mitigating or aggravating
circumstance, and, applying the
Indeterminate Sentence Law, hereby
sentences him to an indeterminate
penalty of EIGHT (8) YEARS, EIGHT
(8) MONTHS and ONE (1) DAY of
prision mayor, as minimum, to
FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of
reclusion temporal, as maximum. The
accused is further sentence (sic) to
indemnify Spouses Ernesto and
Margarita Zuñiga the amount of
P50,000.00 for the death of Arlene
Zuñiga and another amount of
P50,000.00 as moral damages, both
without subsidiary imprisonment in
case of insolvency. The accused is
further sentenced to pay the costs of
suit.
SO ORDERED.
xxx xxx xxx
On appeal, the CA affirmed petitioner's conviction.
Hence, the present petition for review on certiorari
anchored on the following grounds:
xxx xxx xxx
The petition lacks merit.
Direct evidence of the crime is not the only matrix
wherefrom a trial court may draw its conclusion and
finding of guilt. The rules of evidence allow a trial court
to rely on circumstantial evidence to support its
conclusion of guilt. Circumstantial evidence is that
evidence which proves a fact or series of facts from
which the facts in issue may be established by
inference. At times, resort to circumstantial evidence is
imperative since to insist on direct testimony would, in
many cases, result in setting felons free and deny
proper protection to the community.
xxx xxx xxx
We also reiterate the well-settled rule that this Court
accords great weight and a high degree of respect to
factual findings of the trial court, especially when
affirmed by the CA, as in the present case. Here, the
RTC was unequivocally upheld by the CA, which was
clothed with the power to review whether the trial
court's conclusions were in accord with the facts and
the relevant laws. The credibility given by the trial
courts to prosecution witnesses is an important aspect
of evidence which appellate courts can rely on, because
of the trial courts' unique opportunity to observe the
witnesses, particularly their demeanor, conduct, and
attitude, during the direct and cross-examination by
counsels.
In view of the foregoing, petitioner was correctly
convicted of homicide punishable by reclusion
temporal. Applying the Indeterminate Sentence Law,
the minimum of the indeterminate penalty, absent any
modifying circumstances, shall be taken from the full
range of prision mayor and the maximum of which
shall be taken from the medium period of reclusion
temporal. Specifically, the indeterminate penalty that
should be imposed is within the range of 6 years and 1
day to 12 years of prision mayor, as minimum; to 14
years, 8 months and 1 day to 17 years and 4 months of
reclusion temporal, as maximum. Hence, a modification
of the penalty imposed by the trial court is in order.
Instead of 8 years, 8 months and 1 day, the minimum
term of the indeterminate penalty shall be 8 years and 1
day of prision mayor; 35 while the maximum term shall
be that imposed by the trial court.
An appeal in a criminal proceeding throws the whole
case open for review. It then becomes the duty of this
Court to correct any error in the appealed judgment,
whether or not included in the assignment of errors.
We affirm the award of P50,000.00 by way of indemnity
ex delicto to the Zuñiga spouses. When death occurs as a
446
result of a crime, the heirs of the deceased are entitled
to such amount as indemnity for death without need of
any evidence or proof of damages. The court likewise
correctly awarded P50,000.00 as moral damages
because of their mental anguish and moral suffering
caused by Arlene's death.
The trial and appellate courts did not award actual
damages, obviously because the victim's heirs failed to
present proof of the expenses they incurred. However,
it has been repeatedly held by this Court that where the
amount of actual damages cannot be determined
because of the absence of receipts to prove the same,
temperate damages may be fixed at P25,000.00.
WHEREFORE, premises considered, the petition is
hereby DENIED. The Decision of the Court of Appeals
dated February 26, 2004 in CA-G.R. CR No. 26048 is
AFFIRMED with MODIFICATIONS. Petitioner Nover
Bryan Salvador y De Leon is hereby sentenced to suffer
the indeterminate penalty of eight (8) years and one (1)
day of prision mayor, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion
temporal, as maximum. In addition to civil indemnity
and moral damages, petitioner is ordered to pay
spouses Ernesto and Margarita Zuñiga the sum of
P25,000.00 as temperate damages.
SO ORDERED.
Quisumbing, * Ynares-Santiago, Austria-Martinez and
Reyes, JJ., concur.
THE HEIRS OF GEORGE Y. POE vs. MALAYAN
INSURANCE COMPANY, INC.
G.R. No. 156302, 7 April 2009
CHICO-NAZARIO, J p:
The instant Petition for Review under Rule 45 of the
Rules of Court assails the Decision dated 26 June 2002
of the Court of Appeals in CA-G.R. SP No. 67297, which
granted the Petition for Certiorari of respondent
Malayan Insurance Company, Inc. (MICI) and recalled
and set aside the Order dated 6 September 2001 of the
Regional Trial Court (RTC), Branch 73, of Antipolo
City, in Civil Case No. 93-2705. The RTC, in its recalled
Order, denied the Notice of Appeal of MICI and
granted the Motion for the Issuance of a Writ of
Execution filed by petitioners Heirs of George Y. Poe.
The present Petition also challenges the Resolution
dated 29 November 2002 of the appellate court denying
petitioners' Motion for Reconsideration.
Records show that on 26 January 1996 at about 4:45
a.m., George Y. Poe (George) while waiting for a ride to
work in front of Capital Garments Corporation, Ortigas
Avenue Extension, Barangay Dolores, Taytay, Rizal,
was run over by a ten-wheeler Isuzu hauler truck with
Plate No. PMH-858 owned by Rhoda Santos (Rhoda),
and then being driven by Willie Labrador (Willie). The
447
said truck was insured with respondent MICI under
Policy No. CV-293-007446-8.
To seek redress for George's untimely death, his heirs
and herein petitioners, namely, his widow Emercelinda,
and their children Flerida and Fernando, filed with the
RTC a Complaint for damages against Rhoda and
respondent MICI, docketed as Civil Case No. 93-2705.
Petitioners identified Rhoda and respondent MICI, as
follows:
Defendant RHODA SANTOS is
likewise of legal age, Filipino and a
resident of Real Street, Pamplona, Las
Piñas, Metro Manila where she may
be served with summons and other
court processes.
[Herein respondent] MALAYAN
INSURANCE COMPANY, INC.
(hereinafter "[MICI]" for brevity) is a
corporation duly organized and
existing under Philippine law with
address at Yuchengco Bldg., 484 Q.
Paredes Street, Binondo, Manila
where it may be served with
summons and other processes of this
Honorable Court;
Defendant Rhoda Santos, who is
engaged in the business, among
others, of selling gravel and sand is
the registered owner of one Isuzu
Truck, with Plate No. PMH-858 and
is the employer of Willie Labrador
the authorized driver of the aforesaid
truck.
[Respondent MICI] on the other hand
is the insurer of Rhoda Santos under
a valid and existing insurance policy
duly issued by said [MICI], Policy
No. CV-293-007446-8 over the subject
vehicle owned by Rhoda Santos,
Truck-Hauler Isuzu 10 wheeler with
plate no. PMH-858, serial no. SRZ451-
1928340 and motor no. 10PA1-403803.
Under said insurance policy, [MICI]
binds itself, among others, to be liable
for damages as well as any bodily
injury to third persons which may be
caused by the operation of the
insured vehicle.
And prayed that:
[J]udgment issue in favor of [herein
petitioners] ordering [Rhoda and
herein respondent MICI] jointly and
solidarily to pay the [petitioners] the
following:
 1. Actual damages in the total Rhoda and respondent MICI received their copy of the
amount of THIRTY SIX foregoing RTC Decision on 14 March 2000. On 22
THOUSAND (P36,000.00) PESOS March 2000, respondent MICI and Rhoda filed a
for funeral and burial expenses; Motion for Reconsideration of said Decision, averring
therein that the RTC erred in ruling that the obligation
2. Actual damages in the amount of of Rhoda and respondent MICI to petitioners was
EIGHT HUNDRED FIVE solidary or joint and several; in computing George's
THOUSAND NINE HUNDRED loss of earning capacity not in accord with established
EIGHTY FOUR (P805,984.00) jurisprudence; and in awarding moral damages
PESOS as loss of earnings and although it was not buttressed by evidence.
financial support given by the
deceased by reason of his income Resolving the Motion of respondent MICI and Rhoda,
and employment; the RTC issued an Order on 24 January 2001 modifying
and amending its Decision dated 28 February 2000, and
3. Moral damages in the amount of dismissing the case against respondent MICI.
FIFTY THOUSAND (P50,000.00)
PESOS; The RTC held that:

4. Exemplary damages in the After a careful evaluation of the

amount of FIFTY THOUSAND issues at hand, the contention of the
(P50,000.00) PESOS; [herein respondent MICI] as far as the
solidary liability of the insurance
5. Attorney's fees in the amount of company with the other defendant
FIFTY THOUSAND (P50,000.00) [Rhoda] is meritorious. However, the
PESOS and litigation expense in assailed Decision can be modified or
the amount of ONE amended to correct the same honest
THOUSAND FIVE HUNDRED inadvertence without necessarily
(P1,500.00) PESOS for each court reversing it and set aside to conform
appearance; with the evidence on hand.

6. The costs of suit. The RTC also re-computed George's loss of earning
capacity, as follows:
Other reliefs just and equitable in the
premises are likewise prayed for. The computation of actual damages
for loss of earning capacity was
xxx xxx xxx determined by applying the formula
adopted in the American Expectancy
Rhoda and respondent MICI made the following Table of Mortality or the actuarial of
admissions in their Joint Answer: Combined Experience Table of
Mortality applied in . . . Villa Rey
On 28 February 2000, the RTC rendered a Decision in Transit, Inc. v. Court of Appeals (31
Civil Case No. 93-2705, the dispositive portion of which SCRA 521). Moral damages is
reads: awarded in accordance with Article
2206 of the New Civil Code of the
Wherefore, [Rhoda and herein Philippines. While death indemnity
respondent MICI] are hereby ordered in the amount of P50,000.00 is
to pay jointly and solidarily to the automatically awarded in cases
[herein petitioners] the following: where the victim had died (People v.
Sison, September 14, 1990 [189 SCRA
1. Moral damages amounting to 643]). 23 SDaHEc
P100,000.00;
2. Actual damages for loss of In the end, the RTC decreed:
earning capacity amounting to
P805,984.00; WHEREFORE, in view of the
3. P36,000.00 for funeral expenses; foregoing consideration, the Decision
4. P50,000.00 as exemplary of this Court dated 28 February 2000 is
damages; hereby amended or modified. Said
5. P50,000.00 for attorney's fees Decision should read as follows:
plus P1,500 per court
appearance; and "Wherefore, defendant Rhoda Santos
6. Cost of suit. is hereby ordered to pay to the [herein
petitioners] the following:

448
 1. Moral damages amounting to
P100,000.00;
2. Actual damages for loss of
earning capacity amounting to
P102,106.00;
3. P36,000.00 for funeral expenses;
4. P50,000.00 as death indemnity;
5. P50,000.00 for attorney's fees plus
P1,500.00 per court appearance;
6. Costs of the suit.
The case against Malayan Insurance
Company, Inc. is hereby dismissed."
xxx xxx xxx
The Court shall now proceed to scrutinize said award
of damages.
As regards the award of actual damages, Article 2199 of
the Civil Code provides that "[e]xcept 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 . . . ."
The RTC awarded P36,000.00 for burial expenses. The
award of P36,000.00 for burial expenses is duly
supported by receipts evidencing that petitioners did
incur this expense. The petitioners held a wake for two
days at their residence and another two days at the
Loyola Memorial Park. The amount covered the
expenses by petitioners for the wake, funeral and burial
of George.
As to compensation for loss of earning capacity, the
RTC initially awarded P805,984.00 in its 28 February
2000 Decision, which it later reduced to P102,106.00 on
24 January 2001.
Article 2206 of the Civil Code provides that in addition
to the indemnity for death caused by a crime or quasi-
delict, 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, . . . ."
Compensation of this nature is awarded not for loss of
earnings but for loss of capacity to earn money. Hence,
it is proper that compensation for loss of earning
capacity should be awarded to the petitioners in
accordance with the formula established in decided
cases for computing net earning capacity, to wit:
The formula for the computation of unearned income
is:
Net Earning Capacity = life expectancy x (gross annual
income less reasonable and necessary living expenses).
Life expectancy is determined in accordance with the
formula:
2/3 x [80 - age of deceased at the time of death]
449
Jurisprudence provides that the first factor, i.e., life
expectancy, shall be computed by applying the formula
(2/3 x [80 - age at death]) adopted in the American
Expectancy Table of Mortality or the Actuarial of
Combined Experience Table of Mortality.
The second factor is computed by multiplying the life
expectancy by the net earnings of the deceased, i.e., the
total earnings less expenses necessary in the creation of
such earnings or income and less living and other
incidental expenses. The loss is not equivalent to the
entire earnings of the deceased, but only such portion
that he would have used to support his dependents or
heirs. Hence, the Court deducts from his gross earnings
the necessary expenses supposed to be used by the
deceased for his own needs. The Court explained in
Villa Rey Transit v. Court of Appeals:
[The award of damages for loss of
earning capacity is] concerned with
the determination of the losses or
damages sustained by the private
respondents, as dependents and
intestate heirs of the deceased, and
that said damages consist, not of the
full amount of his earnings, but of the
support they received or would have
received from him had he not died in
consequence of the negligence of
petitioner's agent. In fixing the
amount of that support, we must
reckon with the "necessary expenses
of his own living", which should be
deducted from his earnings. Thus, it
has been consistently held that
earning capacity, as an element of
damages to one's estate for his death
by wrongful act is necessarily his net
earning capacity or his capacity to
acquire money, "less necessary
expense for his own living". Stated
otherwise, the amount recoverable is
not the loss of the entire earning, but
rather the loss of that portion of the
earnings which the beneficiary would
have received. In other words, only
net earnings, and not gross earnings
are to be considered that is, the total
of the earnings less expenses
necessary in the creation of such
earnings or income and less living
and other incidental expenses."
Applying the aforestated jurisprudential guidelines in
the computation of the amount of award for damages
set out in Villa Rey, the Court computes the award for
the loss of George's earning capacity as follows:
Life expectancy = 2/3 x [80 - age of deceased at the time
of death]
2/3 x [80 - 56]
2/3 x [24]
FORMULA — NET EARNING CAPACITY (NEC)
If:
Age at time of death of George Poe = 58
Monthly Income at time of death = P6,946
Gross Annual Income (GAI) = [(6,946) (12)] = P83,352
Reasonable/Necessary Living Expenses (R/NLE) =
50% of GAI = P41,676
NEC = [2/3 (80 - 58)] [83,352 - 41,676]
= [2/3 (22)] [41,676]
= [14.67] [41,676]
= P611,386.92
Therefore, George's lost net earning capacity is
equivalent to P611,386.92
The RTC awarded moral damages in the amount of
P100,000.00. With respect to moral damages, the same
are awarded under the following circumstances:
The award of moral damages is aimed at a restoration,
within the limits of the possible, of the spiritual status
quo ante. Moral damages are designed to compensate
and alleviate in some way the physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly caused a
person. Although incapable of pecuniary computation,
they must be proportionate to the suffering inflicted.
The amount of the award bears no relation whatsoever
with the wealth or means of the offender.
In the instant case, petitioners' testimonies reveal the
intense suffering which they continue to experience as a
result of George's death. It is not difficult to
comprehend that the sudden and unexpected loss of a
husband and father would cause mental anguish and
serious anxiety in the wife and children he left behind.
Moral damages in the amount of P100,000.00 are proper
for George's death.
The RTC also awarded P50,000.00 as death indemnity
which the Court shall not disturb. The award of
P50,000.00 as death indemnity is in accordance with
current rulings of the Court.
Finally, the RTC awarded attorney's fees to petitioners.
Petitioners are entitled to attorney's fees. Under Article
2008 of the Civil Code, attorney's fees may be granted
when a party is compelled to litigate or incur expenses
to protect his interest by reason of an unjustified act of
the other party. In Metro Manila Transit Corporation v.
Court of Appeals, the Court held that an award of
P50,000.00 as attorney's fees was reasonable. Hence,
petitioners are entitled to attorney's fees in that amount.
WHEREFORE, premises considered, the instant Petition
is PARTIALLY GRANTED. While the Court AFFIRMS
the Decision, dated 26 June 2002, and Resolution, dated
29 November 2002, of the Court of Appeals in CA-G.R.
SP No. 67297, granting the Petition for Certiorari of
respondent Malayan Insurance Company, Inc., the
Court, nonetheless, RESOLVES, in consideration of the
speedy administration of justice, and the peculiar
circumstances of the case, to give DUE COURSE to the
present Petition and decide the same on its merits.
Rhoda Santos and respondent Malayan Insurance
Company, Inc. are hereby ordered to pay jointly and
severally the petitioners Heirs of George Y. Poe the
following:
(1) Funeral expenses P36,000.00;
(2) Actual damages for loss of earning capacity
P611,386.92;
(3) Moral damages amounting to P100,000.00;
(4) Death indemnity P50,000.00; and
(5) Attorney's fees P50,000.00 plus P1,500.00 per court
appearance.
No costs.
SO ORDERED.
Ynares-Santiago, Carpio Morales * , Nachura and
Peralta, JJ., concur.
c. Attorney’s Fees
SPOUSES AGUSTIN vs.
COURT OF APPEALS, ET AL.
G.R. No. 84751, 6 June 1990, 186 SCRA 375
REGALADO, J p:
This petition for review on certiorari impugns the
decision of the Court of Appeals, dated March 28, 1988,
with the following decretal portion:
"WHEREFORE, the present appeal is
accordingly resolved deleting the
adjudicated award of P20,000.00 as
exemplary damages, and otherwise
by AFFIRMING the Decision dated
October 10, 1985 in Civil Case No. Q-
42390 entitled 'Labrador
Development Corporation vs. Sps.
Eduardo Agustin, et al.' in all other
respects."
"Without pronouncement as to costs."
Said judgment of respondent court is based on the
findings of fact set out in its decision thus:
"Plaintiff-appellee, being a subdivision developer,
owned Lot 14, Block 1 of the San Pedro Compound IV
at Tandang Sora, Quezon City, under Transfer
Certificate of Title No. 277209. On November 7, 1981,
plaintiff-appellee agreed to sell said parcel of land to
450
defendants-appellants on a package deal together with
a residential house per House Plan Model B-203 to be
constructed thereon for the sum of P202,980.00 (Exh.
'B'). As therein stipulated, the defendants-appellants
were to pay P42,980.00 as equity - P30,133.00 as down
payment and the balance of P12,847.00 upon
completion and delivery of the property, the other
P160,000.00 to have been funded through a Pag-Ibig
Fund loan to be applied for by defendants-appellants.
Central to the above was a stipulation that in the event
the housing loan be insufficient to pay the full contract
price owing, they shall pay the same in cash on or
before occupancy and acceptance of the housing unit
(ref. Exh. 'B', para. [e]). The agreement further provided
— defendants-appellants maintained inter alia that
'(f). Failure of the Vendee to comply with any
or all of the above stipulations shall ipso facto
cancel this contract to sell; and thereupon, this
contract to sell or any other contract executed
in connection thereof, shall be of no further
force and effect; and the title to the property, if
already transferred in the name of the Vendee,
shall automatically revert to the Vendor.'
The foregoing stipulation encompassed the necessity of
transferring title to the lot to defendants-appellants as
an accommodation to enable their application for a
housing loan in their names.
"Hence, plaintiff-appellee executed a deed of sale over
the lot (Exh. 'C') in favor of defendants-appellants,
without additional consideration beyond the P30,133.00
down payment adverted to, and the issuance to said
defendants-appellants of Transfer Certificate of Title
No. 29435" ** (Exh. 'D'). Thusly accommodated,
defendants-appellants applied for a P160,000.00
housing loan with the First Summa Savings and
Mortgage Bank as an accredited financing institution.
"After initial approval in the amount applied for, the
Pag-ibig housing loan was downgraded to P128,000.00
after reassessment. Under date of December 18, 1982,
plaintiff-appellee apprised defendants-appellants of
said development (Exh. 'F') enclosing the formal bank
December 16, 1982 letter (Exh. 'E') requiring a co-
borrower related within the fourth degree of
consanguinity should the defendants-appellants desire
approval of an increased loan amount.
"Defendants-appellants appear to have disdained a
reply to plaintiff-appellee's said letter. Thus, under date
of December 28, 1982, plaintiff-appellee again wrote a
follow-up letter to defendants-appellants (Exh. 'G')
affording the latter time to decide on their options, on
pain of enforcement of the terms of the contract to sell.
"Failing reaction from defendants-appellants thereto,
plaintiff-appellee resorted to enforcement of the
contractual stipulations under date of March 1, 1983
(Exh. 'H') and remitted an enclosed check for P30,133.00
(Exh. 'I') representing the equity paid in by defendants-
451
appellants. The latter accepted said check and
deposited same into their account.
"Instead of reconveyance of title to the lot, defendants-
appellants however sought time to buy the property;
plaintiff-appellee agreed provided that payment be
effected in cash. Defendants-appellants failed to make
such payment in cash, despite the lapse of a second 30-
day period afforded therefor. Thereupon, plaintiff-
appellee demanded anew for reconveyance in a July 27,
1984 letter (Exh. 'J').
"On August 8, 1984, plaintiff-appellee filed Civil Case
No. Q-42390 for reconveyance and damage. In answer,
approval of a P160,000.00 housing loan had been
assured upon completion of the house with proof of its
delivery and acceptance, but that acceptance could not
be reasonably given by them in that certain
specifications for the housing unit had not been
complied with."
After trial on the merits, the lower court rendered
judgment in favor of private respondent, the dispositive
part whereof reads:
"WHEREFORE, judgment is hereby rendered ordering
defendants, jointly and severally:
a) to reconvey to plaintiff the parcel of land covered
by Transfer Certificate of Title No. 284735 *** of the
Register of Deeds, Quezon City;
b) to pay plaintiff the sum of P20,000.00 as exemplary
damages;
c) to pay plaintiff the sum of P5,000.00 as attorneys
fees, plus costs of the suit."
which judgment, as earlier stated, was affirmed by
respondent court but with the deletion of the award of
exemplary damages.
On August 22, 1988, respondent court denied
petitioners' motion for reconsideration, hence this
present petition raising the following issues:
xxx xxx xxx
"Private respondent LADECO is not entitled to
attorney's fees of P5,000.00 under the facts and
circumstances of the case."
We agree with the Court of Appeals that reconveyance
is proper in this case. Herein petitioners are already
barred from questioning the validity of the cancellation
of the contract to sell by their acquiescence thereto.
Their acceptance and encashment of the checks
representing the total amount paid by them to private
respondent as equity, coupled by their failure to object
or file an action, despite due notice, to question the
validity of the extrajudicial cancellation of said contract
and to ask for specific performance for more than one
year, clearly show that they assented to the same.

xxx xxx xxx
The award to private respondent of attorney's fees,
however, must be disallowed considering that the
award of exemplary damages was eliminated by
respondent court and the text of the decision of the trial
court, which was affirmed by the Court of Appeals, is
bereft of any findings of fact and law to justify such
award. The accepted rule is that the reason for the
award of attorney's fees must be stated in the text of the
court's decision; otherwise, if it is stated only in the
dispositive portion of the decision, the same must be
disallowed on appeal. The award of attorney's fees
being an exception rather than the general rule, it is
necessary for the court to make findings of facts and
law that would bring the case within the exception and
justify the grant of such award.
WHEREFORE, except for the award of attorney's fees
which is hereby deleted, the decision of respondent
Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ .,
concur.
d. Interest
EASTERN SHIPPING LINES, INC. vs. COURT OF
APPEALS, ET AL.
G.R. No. 97412, 12 July 1994, 234 SCRA 78
VITUG, J p:
The issues, albeit not completely novel, are: (a) whether
or not a claim for damage sustained on a shipment of
goods can be a solidary, or joint and several, liability of
the common carrier, the arrastre operator and the
customs broker; (b) whether the payment of legal
interest on an award of loss or damage is to be
computed from the time the complaint is filed or from
the date the decision appealed from is rendered; and (c)
whether the applicable rate of interest, referred to
above, is twelve percent (12%) or six percent (6%).
The findings of the court a quo, adopted by the Court of
Appeals, on the antecedent and undisputed facts that
have led to the controversy are hereunder reproduced:
"This is an action against defendants shipping
company, arrastre operator and broker-forwarded for
damages sustained by a shipment while in defendants'
custody, filed by the insurer-subrogee who paid the
consignee the value of such losses/damages.
"On December 4, 1981, two fiber drums of riboflavin
were shipped from Yokohama, Japan for delivery
vessel `SS EASTERN COMET' owned by defendant
Eastern Shipping Lines under Bill of Lading No. YMA-8
(Exh. B). The shipment was insured under plaintiff's
Marine Insurance Policy No. 81/01177 for
P36,382,466.38.
"Upon arrival of the shipment in Manila on December
12, 1981, it was discharged unto the custody of
defendant Metro Port Services, Inc. The latter excepted
to one drum, said to be in bad order, which damage
was unknown to plaintiff.
"On January 7, 1982 defendant Allied Brokerage
Corporation received the shipment from defendant
Metro Port Service, Inc., one drum opened and without
seal (per 'Request for Bad Order Survey.' (Exh. D).
"On January 8 and 14, 1982, defendant Allied Brokerage
Corporation made deliveries of the shipment to the
consignees' warehouse. The latter excepted to one drum
which contained spillages, while the rest of the contents
was adulterated/fake (per 'Bad Order Waybill' No.
10649, Exh. E).
"Plaintiff contended that due to the losses/damage
sustained by said drum, the consignee suffered losses
totaling P19,032.95, due to the fault and negligence of
defendants. Claims were presented against defendants
who failed and refused to pay the same (Exhs. H, I, J, K,
L).
"As a consequence of the losses sustained, plaintiff was
compelled to pay the consignee P19,032.95 under the
aforestated marine insurance policy, so that it became
subrogated to all the rights of action of said consignee
against defendants (per 'Form of Subrogation,' 'Release'
and Philbanking check, Exhs. M, N, and O)." (pp. 85-86,
Rollo.)
xxx xxx xxx
In this petition, Eastern Shipping Lines, Inc., the
common carrier, attributes error and grave abuse of
discretion on the part of the appellate court when —
xxx xxx xxx
II. IT HELD THAT THE GRANT OF INTEREST ON
THE CLAIM OF PRIVATE RESPONDENT
SHOULD COMMENCE FROM THE DATE OF
THE FILING OF THE COMPLAINT AT THE
RATE OF TWELVE PERCENT PER ANNUM
INSTEAD OF FROM THE DATE OF THE
DECISION OF THE TRIAL COURT AND ONLY
AT THE RATE OF SIX PERCENT PER ANNUM,
PRIVATE RESPONDENT'S CLAIM BEING
INDISPUTABLY UNLIQUIDATED.
The petition is, in part, granted.
In this decision, we have begun by saying that the
questions raised by petitioner carrier are not all that
novel. Indeed, we do have a fairly good number of
previous decisions this Court can merely tack to.
452
The common carrier's duty to observe the requisite
diligence in the shipment of goods lasts from the time
the articles are surrendered to or unconditionally
placed in the possession of, and received by, the carrier
for transportation until delivered to, or until the lapse
of a reasonable time for their acceptance, by the person
entitled to receive them (Arts. 1736-1738, Civil Code;
Ganzon vs. Court of Appeals, 161 SCRA 646; Kui Bai vs.
Dollar Steamship Lines, 52 Phil. 863). When the goods
shipped either are lost or arrive in damaged condition,
a presumption arises against the carrier of its failure to
observe that diligence, and there need not be an express
finding of negligence to hold it liable (Art. 1735, Civil
Code; Philippine National Railways vs. Court of Appeals,
139 SCRA 87; Metro Port Service vs. Court of Appeals, 131
SCRA 365). There are, of course, exceptional cases when
such presumption of fault is not observed but these
cases, enumerated in Article 1734 1 of the Civil Code,
are exclusive, not one of which can be applied to this
case.
The question of charging both the carrier and the
arrastre operator with the obligation of properly
delivering the goods to the consignee has, too, been
passed upon by the Court. In Fireman's Fund Insurance
vs. Metro Port Services (182 SCRA 455), we have
explained in holding the carrier and the arrastre
operator liable in solidum, thus:
xxx xxx xxx
We do not, of course, imply by the above
pronouncement that the arrastre operator and the
customs broker are themselves always and necessarily
liable solidarily with the carrier, or vice-versa, nor that
attendant facts in a given case may not vary the rule.
The instant petition has been brought solely by Eastern
Shipping Lines which, being the carrier and not having
been able to rebut the presumption of fault, is, in any
event, to be held liable in this particular case. A factual
finding of both the court a quo and the appellate court,
we take note, is that "there is sufficient evidence that
the shipment sustained damage while in the successive
possession of appellants" (the herein petitioner among
them). Accordingly, the liability imposed on Eastern
Shipping Lines, Inc., the sole petitioner in this case, is
inevitable regardless of whether there are others
solidarily liable with it.
It is over the issue of legal interest adjudged by the
appellate court that deserves more than just a passing
remark.
Let us first see a chronological recitation of the major
rulings of this Court:
The early case of Malayan Insurance Co., Inc., vs. Manila
Port Service, decided on 15 May 1969, involved a suit for
recovery of money arising out of short deliveries and
pilferage of goods. In this case, appellee Malayan
Insurance (the plaintiff in the lower court) averred in its
complaint that the total amount of its claim for the
453
value of the undelivered goods amounted to P3,947.20.
This demand, however, was neither established in its
totality nor definitely ascertained. In the stipulation of
facts later entered into by the parties, in lieu of proof,
the amount of P1,447.51 was agreed upon. The trial
court rendered judgment ordering the appellants
(defendants) Manila Port Service and Manila Railroad
Company to pay appellee Malayan Insurance the sum
of P1,447.51 with legal interest thereon from the date
the complaint was filed on 28 December 1962 until full
payment thereof. The appellants then assailed, inter alia,
the award of legal interest. In sustaining the appellants,
this Court ruled:
"Interest upon an obligation which
calls for the payment of money,
absent a stipulation, is the legal rate.
Such interest normally is allowable
from the date of demand, judicial or
extrajudicial. The trial court opted for
judicial demand as the starting point.
"But then upon the provisions of
Article 2213 of the Civil Code,
interest 'cannot be recovered upon
unliquidated claims or damages,
except when the demand can be
established with reasonable
certainty.' And as was held by this
Court in Rivera vs. Perez , L-6998,
February 29, 1956, if the suit were for
damages, 'unliquidated and not
known until definitely ascertained,
assessed and determined by the
courts after proof (Montilla c.
Corporacion de P. P. Agustinos, 25 Phil.
447; Lichauco v. Guzman, 38 Phil. 302),'
then, interest 'should be from the date
of the decision.'" (Emphasis
supplied).
The case of Reformina vs. Tomol, rendered on 11 October
1985, was for "Recovery of Damages for Injury to
Person and Loss of Property." After trial, the lower
court decreed:
"WHEREFORE, judgment is hereby
rendered in favor of the plaintiffs and
third party defendants and against
the defendants and third party
plaintiffs as follows:
"Ordering defendants and third party
plaintiffs Shell and Michael,
Incorporated to pay jointly and
severally the following persons:
"(a) ...
"xxx xxx xxx
 "(g) Plaintiffs Pacita F. Reformina
and Francisco Reformina the
sum of P131,084.00 which is the
value of the boat F B Pacita III
together with its accessories,
fishing gear and equipment
minus P80,000.00 which is the
value of the insurance recovered
and the amount of P10,000.00 a
month as the estimated monthly
loss suffered by them as a result
of the fire of May 6, 1969 up to
the time they are actually paid or
already the total sum of
P370,000.00 as of June 4, 1972
with legal interest from the filing
of the complaint until paid and
to pay attorney's fees of
P5,000.00 with costs against
defendants and third party
plaintiffs." (Emphasis supplied.)
On appeal of the Court of Appeals, the latter modified
the amount of damages awarded but sustained the trial
court in adjudging legal interest from the filing of the
complaint until fully paid. When the appellate court's
decision became final, the case was remanded to the
lower court for execution, and this was when the trial
court issued its assailed resolution which applied the
6% interest per annum prescribed in Article 2209 of the
Civil Code. In their petition for review on certiorari, the
petitioners contended that Central Bank Circular No.
416, providing thus —
"By virtue of the authority granted to
it under Section 1 of Act 2655, as
amended, Monetary Board in its
Resolution No. 1622 dated July 29,
1974, has prescribed that the rate of
interest for the loan, or forbearance of
any money, goods, or credits and the
rate allowed in judgments, in the
absence of express contract as to such
rate of interest, shall be twelve (12%)
percent per annum. This Circular
shall take effect immediately."
(Emphasis found in the text) —
should have, instead, been applied. This Court ruled:
"The judgments spoken of and
referred to are judgments in
litigations involving loans or
forbearance of any money, goods or
credits. any other kind of monetary
judgment which has nothing to do
with, nor involving loans or
forbearance of any money, goods or
credits does not fall within the
coverage of the said law for it is not
within the ambit of the authority
granted to the Central Bank.
"xxx xxx xxx
"Coming to the case at bar, the
decision herein sought to be executed
is one rendered in an Action for
Damages for injury to persons and
loss of property and does not involve
any loan, much less forbearances of
any money, goods or credits. As
correctly argued by the private
respondents, the law applicable to the
said case is Article 2209 of the New
Civil Code which reads —
'ARTICLE 2209. If the obligation
consists in the payment of a sum of
money, and the debtor incurs in
delay, the indemnity for damages,
there being no stipulation to the
contrary, shall be the payment of
interest agreed upon, and in the
absence of stipulation, the legal
interest which is six percent per
annum.'"
The above rule was reiterated in Philippine Rabbit Bus
Lines, Inc., v. Cruz, promulgated on 28 July 1986. The
case was for damages occasioned by an injury to person
and loss of property. The trial court awarded private
respondent Pedro Manabat actual and compensatory
damages in the amount of P72,500.00 with legal interest
thereon from the filing of the complaint until fully paid.
Relying on the Reformina v. Tomol case, this Court
modified the interest award from 12% to 6% interest
per annum but sustained the time computation thereof,
i.e., from the filing of the complaint until fully paid.
In Nakpil and Sons vs. Court of Appeals, the trial court, in
an action for the recovery of damages arising from the
collapse of a building, ordered inter alia, the "defendant
United Construction Co., Inc. (one of the petitioners) . . .
to pay the plaintiff, . . ., the sum of P989,335.68 with
interest at the legal rate from November 29, 1968, the
date of the filing of the complaint until full payment . . .
." Save from the modification of the amount granted by
the lower court, the Court of Appeals sustained the trial
court's decision. When taken to this Court for review,
the case, on 03 October 1986, was decided, thus:
"WHEREFORE, the decision
appealed from is hereby MODIFIED
and considering the special and
environmental circumstances of this
case, we deem it reasonable to render
a decision imposing, as We do hereby
impose, upon the defendant and the
third-party defendants (with the
exception of Roman Ozaeta) a
solidary (Art. 1723, Civil Code,
Supra. p. 10) indemnity in favor of
the Philippine Bar Association of
454
 FIVE MILLION (P5,000,000.00) Pesos
to cover all damages (with the
exception of attorney's fees)
occasioned by the loss of the building
and an additional ONE HUNDRED
THOUSAND (P100,000.00) Pesos as
and for attorney's fees, the total sum
being payable upon the finality of
this decision. Upon failure to pay on
such finality, twelve (12%) per cent
interest per annum shall be imposed
upon aforementioned amounts from
finality until paid. Solidary costs
against the defendant and third-party
defendants (except Roman Ozaeta)."
(Emphasis supplied).
A motion for reconsideration was filed by United
Construction, contending that "the interest of twelve
(12%) per cent per annum imposed on the total amount
of the monetary award was in contravention of law."
The Court ruled out the applicability of the Reformina
and Philippine Rabbit Bus Lines cases and, in its
resolution of 15 April 1988, it explained:
"There should be no dispute that the
imposition of 12% interest pursuant
to Central Bank Circular No. 416 . . .
is applicable only in the following: (1)
loans; (2) forbearance of any money,
goods or credit; and (3) rate allowed
in judgments (judgments spoken of
refer to judgments involving loans or
forbearance of any money, goods or
credits. (Philippine Rabbit Bus Lines
Inc. v. Cruz, 143 SCRA 160-161 [1986];
Reformina v. Tomol, Jr., 139 SCRA 260
[1985]). It is true that in the instant
case, there is neither a loan or a
forbearance, but then no interest is
actually imposed provided the sums
referred to in the judgment are paid
upon the finality of the judgment. It
is delay in the payment of such final
judgment, that will cause the
imposition of the interest.
"It will be noted that in the cases
already adverted to, the rate of
interest is imposed on the total sum,
from the filing of the complaint until
paid; in other words, as part of the
judgment for damages. Clearly, they
are not applicable to the instant case."
(Emphasis supplied)
The subsequent case of American Express International,
Inc., vs. International Appellate Court was a petition for
review on certiorari from the decision, dated 27
February 1985, of the then Intermediate Appellate
Court reducing the amount of moral and exemplary
damages awarded by the trial court, to P240,000.00 and
455
P100,000.00, respectively, and its resolution, dated 29
April 1985, restoring the amount of damages awarded
by the trial court, i.e., P2,000,000,00 as moral damages
and P400,000.00 as exemplary damages with interest
thereon at 12% per annum from notice of judgment,
plus costs of suit. In a decision of 09 November 1988,
this Court, while recognizing the right of the private
respondent to recover damages, held the award,
however, for moral damages by the trial court, later
sustained by the IAC, to be inconceivably large. The
Court thus set aside the decision of the appellate court
and rendered a new one, "ordering the petitioner to pay
private respondent the sum of One Hundred Thousand
(P100,000.00) Pesos as moral damages, with six (6%)
percent interest thereon computed from the finality of
this decision until paid." (Emphasis supplied).
Reformina came into fore again in the 21 February 1989
case of Florendo v. Ruiz which arose from a breach of
employment contract. For having been illegally
dismissed, the petitioner was awarded by the trial court
moral and exemplary damages without, however,
providing any legal interest thereon. When the decision
was appealed to the Court of Appeals, the latter held:
"WHEREFORE, except as modified
hereinabove the decision of the CFI of
Negros Oriental dated October 31,
1972 is affirmed in all respects, with
the modification that defendants-
appellants, except defendant-
appellant Merton Munn, are ordered
to pay, jointly and severally, the
amounts stated in the dispositive
portion of the decision, including the
sum of P1,400.00 in concept of
compensatory damages, with interest
at the legal rate from the date of the
filing of the complaint until fully
paid." (Emphasis supplied)
The petition for review to this Court was denied. The
records were thereupon transmitted to the trial court,
and an entry of judgment was made. The writ of
execution issued by the trial court directed that only
compensatory damages should earn interest at 6% per
annum from the date of the filing of the complaint.
Ascribing grave abuse of discretion on the part of the
trial judge, a petition for certiorari assailed the said
order. This court said:
". . ., it is to be noted that the Court of
Appeals ordered the payment of
interest 'at the legal rate' from the
time of the filing of the complaint. . . .
Said circular [Central Bank Circular
No. 416] does not apply to actions
based on a breach of employment
contract like the case at bar."
(Emphasis supplied)
The Court reiterated that the 6% interest per annum on
the damages should be computed from the time the
complaint was filed until the amount is fully paid.
Quite recently, the Court had another occasion to rule
on the matter. National Power Corporation vs. Angas,
decided on 08 May 1992, involved the expropriation of
certain parcels of land. After conducting a hearing on
the complaints for eminent domain, the trial court
ordered the petitioner to pay the private respondents
certain sums of money as just compensation for their
lands so expropriated "with legal interest thereon . . .
until fully paid." Again, in applying the 6% legal
interest per annum under the Civil Code, the Court
declared:
". . ., (T)he transaction involved is
clearly not a loan or forbearance of
money, goods or credits but
expropriation of certain parcels of
land for a public purpose, the
payment of which is without
stipulation regarding interest, and the
interest adjudged by the trial court is
in the nature of indemnity for
damages. The legal interest required
to be paid on the amount of just
compensation for the properties
expropriated is manifestly in the form
of indemnity for damages for the
delay in the payment thereof.
Therefore, since the kind of interest
involved in the joint judgment of the
lower court sought to be enforced in
this case is interest by way of
damages, and not by way of earnings
from loans, etc. Art. 2209 of the Civil
Code shall apply."
Concededly, there have been seeming variances in the
above holdings. The cases can perhaps be classified into
two groups according to the similarity of the issues
involved and the corresponding rulings rendered by
the court. The "first group" would consist of the cases of
Reformina v. Tomol (1985), Philippine Rabbit Bus Lines v.
Cruz (1986), Florendo v. Ruiz (1989) and National Power
Corporation v. Angas (1992). In the "second group"
would be Malayan Insurance Company v. Manila Port
Service (1969), Nakpil and Sons v. Court of Appeals (1988),
and American Express International v. Intermediate
Appellate Court (1988).
In the "first group," the basic issue focus on the
application of either the 6% (under the Civil Code) or
12% (under the Central Bank Circular) interest per
annum. It is easily discernible in these cases that there
has been a consistent holding that the Central Bank
Circular imposing the 12% interest per annum applies
only to loans or forbearance 16 of money, goods or
credits, as well as to judgments involving such loan or
forbearance of money, goods or credits, and that the 6%
interest under the Civil Code governs when the
transaction involves the payment of indemnities in the
concept of damage arising from the breach of a delay in
the performance of obligations in general. Observe, too,
that in these cases, a common time frame in the
computation of the 6% interest per annum has been
applied, i.e., from the time the complaint is filed until
the adjudged amount is fully paid.
The "second group," did not alter the pronounced rule
on the application of the 6% or 12% interest per annum,
17 depending on whether or not the amount involved is
a loan or forbearance, on the one hand, or one of
indemnity for damage, on the other hand. Unlike,
however, the "first group" which remained consistent in
holding that the running of the legal interest should be
from the time of the filing of the complaint until fully
paid, the "second group" varied on the commencement
of the running of the legal interest.
Malayan held that the amount awarded should bear
legal interest from the date of the decision of the court a
quo, explaining that "if the suit were for damages,
'unliquidated and not known until definitely
ascertained, assessed and determined by the courts
after proof,' then, interest 'should be from the date of
the decision.'" American Express International v. IAC,
introduced a different time frame for reckoning the 6%
interest by ordering it to be "computed from the finality
of (the) decision until paid." The Nakpil and Sons case
ruled that 12% interest per annum should be imposed
from the finality of the decision until the judgment
amount is paid.
The ostensible discord is not difficult to explain. The
factual circumstances may have called for different
applications, guided by the rule that the courts are
vested with discretion, depending on the equities of
each case, on the award of interest. Nonetheless, it may
not be unwise, by way of clarification and
reconciliation, to suggest the following rules of thumb
for future guidance.
I. When an obligation, regardless of its source, i.e.,
law, contracts, quasi-contracts, delicts or quasi-
delicts is breached, the contravenor can be held
liable for damages. The provisions under Title
XVIII on "Damages" of the Civil Code govern in
determining the measure of recoverable damages.
II. With regard particularly to an award of interest in
the concept of actual and compensatory damages,
the rate of interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation is breached, and it
consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the
interest due should be that which may have
been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest from
the time it is judicially demanded. In the
absence of stipulation, the rate of interest shall
456
 be 12% per annum to be computed from
default, i.e., from judicial or extrajudicial
demand under and subject to the provisions of
Article 1169 of the Civil Code.
2. When anobligation, not constituting a loan or
forbearance of money, is breached, an interest
on the amount of damages awarded may be
imposed at the discretion of the court at the
rate of 6% per annum. No interest, however,
shall be adjudged on unliquidated claims or
damages except when or until the demand can
be established with reasonable certainty.
Accordingly, where the demand is established
with reasonable certainty, the interest shall
begin to run from the time the claim is made
judicially or extrajudicially (Art. 1169, Civil
Code) but when such certainty cannot be so
reasonably established at the time the demand
is made, the interest shall begin to run only
from the date of the judgment of the court is
made (at which time the quantification of
damages may be deemed to have been
reasonably ascertained). The actual base for
the computation of legal interest shall, in any
case, be on the amount of finally adjudged.
3. When the judgment of the court awarding a
sum of money becomes final and executory,
the rate of legal interest, whether the case falls
under paragraph 1 or paragraph 2, above,
shall be 12% per annum from such finality
until its satisfaction, this interim period being
deemed to be by then an equivalent to a
forbearance of credit.
WHEREFORE, the petition is partly GRANTED. The
appealed decision is AFFIRMED with the
MODIFICATION that the legal interest to be paid is SIX
PERCENT(6%) on the amount due computed from the
decision, dated 03 February 1988, of the court a quo. A
TWELVE PERCENT (12%) interest, in lieu of SIX
PERCENT (6%), shall be imposed on such amount
upon finality of this decision until the payment thereof.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno
and Kapunan, JJ., concur.
Mendoza, J., took no part.
CRISMINA GARMENTS, INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. 128721, 9 March 1999, 304 SCRA 356
PANGANIBAN, J p:
Interest shall be computed in accordance with the
stipulation of the parties. In the absence of such
agreement, the rate shall be twelve percent (12%) per
457
annum when the obligation arises out of a loan or a
forbearance of money, goods or credits. In other cases,
it shall be six percent (6%).
The Case
On May 5, 1997, Crismina Garments, Inc. filed a
Petition for Review on Certiorari assailing the
December 28, 1995 Decision and March 17, 1997
Resolution of the Court of Appeals in CA-GR CV No.
28973. On September 24, 1997, this Court issued a
minute Resolution denying the petition "for its failure
to show any reversible error on the part of the Court of
Appeals."
Petitioner then filed a Motion for Reconsideration,
arguing that the interest rate should be computed at 6
percent per annum as provided under Article 2209 of
the Civil Code, not 12 percent per annum as prescribed
under Circular No. 416 of the Central Bank of the
Philippines. Acting on the Motion, the Court reinstated
the Petition, but only with respect to the issue of which
interest rate should be applied.
The Facts
As the facts of the case are no longer disputed, we are
reproducing hereunder the findings of the appellate
court:
"During the period from February 1979 to April 1979,
the [herein petitioner], which was engaged in the
export of girls' denim pants, contracted the services of
the [respondent], the sole proprietress of the D' Wilmar
Garments, for the sewing of 20,762 pieces of assorted
girls['] denims supplied by the [petitioner] under
Purchase Orders Nos. 1404, dated February 15, 1979,
0430 dated February 1, 1979, 1453 dated April 30, 1979.
The [petitioner] was obliged to pay the [respondent],
for her services, in the total amount of P76,410.00. The
[respondent] sew[ed] the materials and delivered the
same to the [petitioner] which acknowledged the same
per Delivery Receipt Nos. 0030, dated February 9, 1979;
0032, dated February 15, 1979; 0033 dated February 21,
1979; 0034, dated February 24, 1979; 0036, dated
February 20, 1979; 0038, dated March 11, 1979[;] 0039,
dated March 24, 1979; 0040 dated March 27, 1979; 0041,
dated March 29, 1979; 0044, dated Marc[h] 25, 1979;
0101 dated May 18, 1979[;] 0037, dated March 10, 1979
and 0042 dated March 10, 1979, in good order
condition. At first, the [respondent] was told that the
sewing of some of the pants w[as] defective. She offered
to take delivery of the defective pants. However, she
was later told by [petitioner]'s representative that the
goods were already good. She was told to just return
for her check of P76,410.00. However, the [petitioner]
failed to pay her the aforesaid amount. This prompted
her to hire the services of counsel who, on November
12, 1979, wrote a letter to the [petitioner] demanding
payment of the aforesaid amount within ten (10) days
from receipt thereof. On February 7, 1990, the
[petitioner]'s [v]ice-[p]resident-[c]omptroller, wrote a
letter to [respondent]'s counsel, averring, inter alia, that
the pairs of jeans sewn by her, numbering 6,164 pairs,
were defective and that she was liable to the [petitioner]
for the amount of P49,925.51 which was the value of the
damaged pairs of denim pants and demanded refund
of the aforesaid amount.
"On January 8, 1981, the [respondent] filed her
complaint against the [petitioner] with the [trial court]
for the collection of the principal amount of P76,410.00.
...
xxx xxx xxx
"After due proceedings, the [trial court] rendered
judgment, on February 28, 1989, in favor of the
[respondent] against the [petitioner], the dispositive
portion of which reads as follows:
'WHEREFORE, judgment is hereby
rendered in favor of the plaintiff and
against the defendant ordering the
latter to pay the former:
(1) The sum of P76,140.00 with
interest thereon at 12% per
annum, to be counted from the
filing of this complaint on
January 8, 1981, until fully paid;
(2) The sum of P5,000 as attorney[']s
fees; and
(3) The costs of this suit;
(4) Defendant's counterclaim is
hereby dismissed.'"
The Court of Appeals (CA) affirmed the trial court's
ruling, except for the award of attorney's fees which
was deleted. Subsequently, the CA denied the Motion
for Reconsideration.
Hence, this recourse to this Court.
Sole Issue
In light of the Court's Resolution dated April 27, 1998,
petitioner submits for our consideration this sole issue:
"Whether or not it is proper to
impose interest at the rate of twelve
percent (12%) per annum for an
obligation that does not involve a
loan or forbearance of money in the
absence of stipulation of the parties."
This Court's Ruling
We sustain petitioner's contention that the interest rate
should be computed at six percent (6%) per annum.
Sole Issue: Interest Rate
The controversy revolves around petitioner's payment
of the price beyond the period prescribed in a contract
for a piece of work. Article 1589 of the Civil Code
provides that "[t]he vendee [herein petitioner] shall owe
interest for the period between the delivery of the thing
and the payment of the price . . . should he be in
default, from the time of judicial or extrajudicial
demand for the payment of the price." The only issue
now is the applicable rate of interest for the late
payment.
Because the case before us is "an action for the
enforcement of an obligation for payment of money
arising from a contract for a piece of work," petitioner
submits that the interest rate should be six percent (6%),
pursuant to Article 2209 of the Civil Code, which states:
"If the obligation consists in the
payment of money and the debtor
incurs in delay, the indemnity for
damages, there being no stipulation
to the contrary, shall be the payment
of the interest agreed upon, and in
the absence of stipulation, the legal
interest, which is six per cent per
annum." (Emphasis supplied.)
On the other hand, private respondent maintains that
the interest rate should be twelve percent (12%) per
annum, in accordance with Central Bank (CB) Circular
No. 416, which reads:
"By virtue of the authority granted to
it under Section 1 of Act No. 2655, as
amended, otherwise known as the
'Usury Law', the Monetary Board, in
its Resolution No. 1622 dated July 29,
1974, has prescribed that the rate of
interest for the loan or forbearance of
any money, goods or credits and the
rate allowed in judgments, in the
absence of express contract as to such
rate of interest, shall be twelve per
cent (12%) per annum." (Emphasis
supplied.)
She argues that the circular applies, since "the money
sought to be recovered by her is in the form of
forbearance."
We agree with the petitioner. In Reformina v. Tomol Jr.,
this Court stressed that the interest rate under CB
Circular No. 416 applies to (1) loans; (2) forbearance of
money, goods or credits; or (3) a judgment involving a
loan or forbearance of money, goods or credits. Cases
beyond the scope of the said circular are governed by
Article 2209 of the Civil Code, which considers interest
a form of indemnity for the delay in the performance of
an obligation.
458
In Eastern Shipping Lines, Inc. v. Court of Appeals, the
Court gave the following guidelines for the application
of the proper interest rates:
"I. When an obligation, regardless
of its source, i.e., law, contracts,
quasi-contracts, delicts or quasi-
delicts is breached, the
contravenor can be held liable
for damages. The provisions
under Title XVIII on 'Damages'
of the Civil Code govern in
determining the measure of
recoverable damages.
II. With regard particularly to an
award of interest in the concept
of actual and compensatory
damages, the rate of interest, as
well as the accrual thereof, is
imposed, as follows:
1. When the obligation is
breached, and it consists in
the payment of a sum of
money, i.e., a loan or
forbearance of money, the
interest due should be that
which may have been
stipulated in writing.
Furthermore, the interest
due shall itself earn legal
interest from the time it is
judicially demanded. In the
absence of stipulation, the
rate of interest shall be 12%
per annum to be computed
from default, i.e., from
judicial or extrajudicial
demand under and subject
to the provisions of Article
1169 of the Civil Code. Cdpr
2. When an obligation, not
constituting a loan or
forbearance of money, is
breached, an interest on the
amount of damages
awarded may be imposed at
the discretion of the court at
the rate of 6% per annum.
No interest, however, shall
be adjudged on
unliquidated claims or
damages except when or
until the demand can be
established with reasonable
certainty. Accordingly,
where the demand is
established with reasonable
certainty, the interest shall
begin to run from the time
459
the claim is made judicially
or extrajudicially (Art. 1169,
Civil Code) but when such
certainty cannot be so
reasonably established at the
time the demand is made,
the interest shall begin to
run only from the date the
judgment of the court is
made (at which time the
quantification of damages
may be deemed to have
been reasonably
ascertained). The actual base
for the computation of legal
interest shall, in any case, be
. . . the amount finally
adjudged.
3. When the judgment of the
court awarding a sum of
money becomes final and
executory, the rate of legal
interest, whether the case
falls under paragraph 1 or
paragraph 2, above, shall be
12% per annum from such
finality until its satisfaction,
this interim period being
deemed to be by then an
equivalent to a forbearance
of credit."
In Keng Hua Paper Products Co., Inc. v. CA, we also ruled
that the monetary award shall earn interest at twelve
percent (12%) per annum from the date of the finality of
the judgment until its satisfaction, regardless of
whether or not the case involves a loan or forbearance
of money. The interim period is deemed to be
equivalent to a forbearance of credit.
Because the amount due in this case arose from a
contract for a piece of work, not from a loan or
forbearance of money, the legal interest of six percent
(6%) per annum should be applied. Furthermore, since
the amount of the demand could be established with
certainty when the Complaint was filed, the six percent
(6%) interest should be computed from the filing of the
said Complaint. But after the judgment becomes final
and executory until the obligation is satisfied, the
interest should be reckoned at twelve percent (12%) per
year.
Private respondent maintains that the twelve percent
(12%) interest should be imposed, because the
obligation arose from a forbearance of money. This is
erroneous. In Eastern Shipping, the Court observed that
a "forbearance" in the context of the usury law is a
"contractual obligation of lender or creditor to refrain,
during a given period of time, from requiring the
borrower or debtor to repay a loan or debt then due
and payable." Using this standard, the obligation in this
case was obviously not a forbearance of money, goods
or credit.
WHEREFORE, the appealed Decision is MODIFIED.
The rate of interest shall be six percent (6%) per annum,
computed from the time of the filing of the Complaint
in the trial court until the finality of the judgment. If the
adjudged principal and the interest (or any part thereof)
remain unpaid thereafter, the interest rate shall be
twelve percent (12%) per annum computed from the
time the judgment becomes final and executory until it
is fully satisfied. No pronouncement as to costs.
SO ORDERED.
Romero, Vitug, Purisima and Gonzaga-Reyes, JJ.,
concur.
3. MORAL DAMAGES
ARTICLE 2217. Moral damages include physical
suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages
may be recovered if they are the proximate result of
the defendant's wrongful act for omission.
ARTICLE 2218. In the adjudication of moral damages,
the sentimental value of property, real or personal,
may be considered.
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.
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 or in bad faith.
LOPEZ, ET AL. vs.
PAN AMERICAN WORLD AIRWAYS
G.R. No. L-22415, 30 March 1966, 16 SCRA 431
BENGZON, J.P., J p:
Plaintiffs and defendants appeal from a decision of the
Court of First Instance of Rizal. Since the value in
controversy exceeds P200,000 the appeals were taken
directly to this Court upon all questions involved (Sec.
17, par. 3[5], Judiciary Act).
Stated briefly the facts not in dispute are as follows.
Reservations for first class accommodations in Flight
No. 2 of Pan American World Airways — hereinafter
otherwise called PAN AM — from Tokyo to San
Francisco on May 24, 1960 were made with PAN AM
on March 29, 1960, by "Your Travel Guide" agency,
specifically, by Delfin Faustino, for then Senator
Fernando Lopez, his wife Maria J. Lopez, his son-in-law
Alfredo Montelibano, Jr., and his daughter Mrs. Alfredo
Montelibano, Jr. (Milagros Lopez Montelibano). PAN
AM's San Francisco head office confirmed the
reservations on March 31, 1960.
First class tickets for the abovementioned flight were
subsequently issued by PAN AM on May 21 and 23,
1960, in favor of Senator Lopez and his party. The total
fare of P9,444 for all of them was fully paid before the
tickets were issued.
As scheduled Senator Lopez and party left Manila by
Northwest Airlines on May 24, 1960, arriving in Tokyo
at 5:30 P.M. of that day. As soon as they arrived Senator
Lopez requested Minister Busuego of the Philippine
Embassy to contact PAN AM's Tokyo office regarding
their first class accommodations for that evening's
flight. For the given reason that the first class seats
therein were all booked up, however, PAN AM's Tokyo
office informed Minister Busuego that PAN AM could
not accommodate Senator Lopez and party in that trip
as first class passengers. Senator Lopez thereupon gave
their first class tickets to Minister Busuego for him to
show the same to PAN AM's Tokyo office, but the latter
firmly reiterated that there was no accommodation for
them in the first class, stating that they could not go in
that flight unless they took the tourist class therein.
Due to pressing engagements awaiting Senator Lopez
and his wife in the United States — he had to attend a
business conference in San Francisco the next day and
she had to undergo a medical check-up in Mayo Clinic,
Rochester, Minnesota, on May 28, 1960 and needed
three days rest before that in San Francisco — Senator
Lopez and party were constrained to take PAN AM's
flight from Tokyo to San Francisco as tourist
passengers. Senator Lopez however made it clear, as
indicated in his letter to PAN AM's Tokyo office on that
date (Exh. A), that they did so "under protest" and
without prejudice to further action against the airline.
460
Suit for damages was thereafter filed by Senator Lopez
and party against PAN AM on June 2, 1960 in the Court
of First Instance of Rizal. Alleging breach of contracts in
bad faith by defendant, plaintiffs asked for P500,000
actual and moral damages, P100,000 exemplary
damages P25,000 attorney's fees, plus costs. PAN AM
filed its answer on June 22, 1960, asserting that its
failure to provide first class accommodations to
plaintiffs was due to honest error of its employees. It
also interposed a counterclaim for attorney's fees of
P25,000.
Subsequently, further pleadings were filed, thus:
plaintiffs' answer to the counterclaim, on July 25, 1960;
plaintiffs' reply attached to motion for its admittance,
on December 2, 1961; defendant's supplemental answer,
on March 8, 1962; plaintiff's reply to supplemental
answer, on March 10, 1962; and defendant's amended
supplemental answer, on July 10, 1962.
After trial — which took twenty-two (22) days ranging
from November 25, 1960 to January 5, 1963 — the Court
of First Instance rendered its decision on November 13,
1963, the dispositive portion stating:
"In view of the foregoing
considerations, judgment is hereby
rendered in favor of the plaintiffs and
against the defendant, which is
accordingly ordered to pay the
plaintiffs the following (a)
P100,000.00 as moral damages: (b)
P20,000.00 as exemplary damage; (c)
P25,000.00 as attorney's fees, and the
costs of this action.
"So ordered."
Plaintiffs however, on November 21, 1963, moved for
reconsideration of said judgment, asking that moral
damages be increased to P400,000 and that six per cent
(6%) interest per annum on the amount of the award be
granted. And defendant opposed the same. Acting
thereon the trial court issued an order on December 14,
1963, reconsidering the dispositive part of its decision
to read as follows:
"In view of the foregoing
considerations, judgment is hereby
rendered in favor of the plaintiffs and
against the defendant, which is
accordingly ordered to pay the
plaintiffs the following (a)
P150,000.00 as moral damages; (b)
P25,000.00 as exemplary damages;
with legal interest on both from the
date of the filing of the complaint
until paid; and (c) P25,000.00 as
attorney's fees, and the costs of this
action."
"So ordered."
461
It is from said judgment, as thus reconsidered, that both
parties have appealed.
Defendants, as stated, has from the start admitted that
it breached its contracts with plaintiffs to provide them
with first class accommodations in its Tokyo-San
Francisco flight of May 24, 1960. In its appeal, however,
it takes issue with the finding of the court a quo that it
acted in bad faith in the breach of said contracts.
Plaintiffs, on the other hand, raise questions on the
amount of damages awarded in their favor, seeking
that the same be increased to a total of P650,000.
Anent the issue of bad faith the record shows the
respective contentions of the parties as follows.
According to plaintiffs, defendant acted in bad faith
because it deliberately refused to comply with its
contract to provide first class accommodations to
plaintiffs, out of racial prejudice against Orientals. And
in support of its contention that what was done to
plaintiffs is an oft-repeated practice of defendant,
evidence was adduced relating to two previous
instances of alleged racial discrimination by defendant
against Filipinos in favor of "white" passengers. Said
previous occasions are what allegedly happened to (1)
Benito Jalbuena and (2) Cenon S. Cervantes and his
wife.
And from plaintiffs' evidence this is what allegedly
happened. Jalbuena bought a first class ticket from
PAN AM on April 13, 1960; he confirmed it on April 15,
1960 as to the Tokyo-Hongkong flight of April 20, 1960;
PAN AM similarly confirmed it on April 20, 1960. At
the airport, he and another Oriental — Mr. Tung —
were asked to step aside while other passengers —
including "white" passengers — boarded PAN AM's
plane. Then PAN AM officials told them that one of
them had to stay behind. Since Mr. Tung was going all
the way to London, Jalbuena was chosen to be left
behind. PAN AM's officials could only explain by
saying there was "some mistake." Jalbuena thereafter
wrote PAN AM to protest the incident (Exh. B).
As to Cenon S. Cervantes it would appear that in Flight
No. 6 of PAN AM on September 29, 1958 from Bangkok
to Hongkong, he and his wife had to take tourist class,
although they had first class tickets, which they had
previously confirmed, because their seats in first class
were given to "passengers from London."
Against the foregoing, however, defendant's evidence
would seek to establish its theory of honest mistake,
thus:
The first class reservations of Senator Lopez and party
were made on March 29, 1960 together with those of
four members of the Rufino family, for a total of eight
(8) seats, as shown in their joint reservation card (Exh.
1). Subsequently, on March 30, 1960, two other Rufinos
secured reservations and were given a separate
reservation card (Exh. 2). A new reservation card
consisting of two pages (Exh. 3 and 4) was then made
for the original group of eight passengers, namely,
Senator Lopez and party and four members of the
Rufino family, the first page (Exh. 3) referring to 2
Lopez , 2 Montelibanos and 1 Rufino and the second
page (Exh. 4) referring to 3 Rufinos. On April 18, 1960
"Your Travel Guide" agency cancelled the reservations
of the Rufinos. A telex message was thereupon sent on
that date to PAN AM's head office at San Francisco by
Mariano Herranz, PAN AM's reservations employee at
its office in Escolta, Manila, (Annex A-Acker's to Exh.
6). In said message, however, Herranz mistakenly
cancelled all the seats that had been reserved, that is,
including those of Senator Lopez and party.
The next day — April 1960 — Herranz discovered his
mistake, upon seeing the reservation card newly
prepared by his co-employee Pedro Asensi for Senator
Lopez and party to the exclusion of the Rufinos (Exh.
5). It was then that Herranz sent another telex wire to
the San Francisco head office, stating his error and
asking for the reinstatement of the four (4) first class
seats reserved for Senator Lopez and party (Annex A-
Velasco's to Exh. 6). San Francisco head office replied
on April 22, 1960 that Senator Lopez and party are
waitlisted and that said office is unable to reinstate
them (Annex B- Velasco's to Exh. 6).
Since the flight involved was still more than a month
away and confident that reinstatement would be made,
Herranz forgot the matter and told no one about it
except his co-employee, either Armando Davila or
Pedro Asensi or both of them (Tsn., 123-124, 127, Nov.
17, 1961).
Subsequently, on April 27, 1960, Armando Davila, PAN
AM's reservations employee working in the same
Escolta office as Herranz, phoned PAN AM's ticket
sellers at its other office in the Manila Hotel, and
confirmed the reservations of Senator Lopez and party.
PAN AM's reservations supervisor, Alberto Jose,
discovered Herranz's mistake after "Your Travel Guide"
phoned on May 18, 1960 to state that Senator Lopez and
party were going to depart as scheduled. Accordingly,
Jose sent a telex wire on that date to PAN AM's head
office at San Francisco to report the error and asked
said office to continue holding the reservations of
Senator Lopez and party (Annex B Acker's to Exh. 6).
Said message was reiterated by Jose in his telex wire of
May 19, 1960 (Annex C-Acker's to Exh. 6). San
Francisco head office replied on May 19, 1960 that it
regrets being unable to confirm Senator Lopez and
party for the reason that the flight was solidly booked
(Exh. 7). Jose sent a third telex wire on May 20, 1960
addressed to PAN AM's offices at San Francisco, New
York (Idlewild Airport), Tokyo and Hongkong, asking
all-out assistance towards restoring the cancelled spaces
and for report of cancellations at their end (Annex D-
Acker's to Exh. 6). San Francisco head office reiterated
on May 20, 1960 that it could not reinstate the spaces
and referred Jose to the Tokyo and Hongkong offices
(Exh. 8). Also on May 20 the Tokyo office of PAN AM
wired Jose stating it will do everything possible (Exh.
9).
Expecting that some cancellations of bookings would be
made before the flight time, Jose decided to withhold
from Senator Lopez and party, or their agent, the
information that their reservations had been cancelled.
Armando Davila having previously confirmed Senator
Lopez and party's first class reservations to PAN AM's
ticket sellers at its Manila Hotel office, the latter sold
and issued in their favor the corresponding first class
tickets on the 21st and 23rd of May, 1960.
From the foregoing evidence of defendant it is in effect
admitted that defendant — through its agents — first
cancelled plaintiffs' reservations by mistake and
thereafter deliberately and intentionally withheld from
plaintiffs or their travel agent the fact of said
cancellation, letting them go on believing that their first
class reservations stood valid and confirmed. In so
misleading plaintiffs into purchasing first class tickets
in the conviction that they had confirmed reservations
for the same, when in fact they had none, defendant
wilfully and knowingly placed itself into the position of
having to breach its aforesaid contracts with plaintiffs
should there be no last-minute cancellation by other
passengers before flight time, as it turned out in this
case. Such actuation of defendant may indeed have
been prompted by nothing more than the promotion of
its self- interest in holding on to Senator Lopez and
party as passengers in its flight and foreclosing on their
chances to seek the services of other airlines that may
have been able to afford them first class
accommodations. All the same, in legal contemplation
such conduct already amounts to action in bad faith.
For bad faith means a breach of a known duty through
some motive of interest or ill will (Spiegel vs. Reacon
Participations (8 NE 2d 895, 907). As stated in Kamm
vs. Flink, 113 N.J.L. 582, 175 A. 62, 99 A.L.R. 1, 7: "Self-
enrichment or fraternal interest, and not personal ill
will, may well have been the motive, but it is malice
nevertheless."
As of May 18, 1960 defendant's reservations supervisor
Alberto Jose knew that plaintiff's reservations had been
cancelled. As of May 20 he knew that the San Francisco
head office stated with finality that it could not
reinstate plaintiff' cancelled reservations. And yet said
reservations supervisor made the "decision" — to use
his own word — to withhold the information from the
plaintiffs. Said Alberto Jose in his testimony:
"Q Why did you not notify them?
"A Well, you see, sir, in my fifteen (15) years of service
with the air lines business my experience is that
even if the flights are solidly booked months in
advance, usually the flight departs with plenty of
empty seats both on the first class and tourist class.
This is due to late cancellation of passengers, or
462
 because passengers do not show up in the airport,
and it was our hope others come in from another
flight and, therefore, are delayed and, therefore,
missed their connections. This experience of mine,
coupled with that wire from Tokyo that they
would do everything possible prompted me to
withhold the information, but unfortunately,
instead of the first class seat that I was hoping for
and which I anticipated only the tourists class was
open on which Senator and Mrs. Lopez, Mr. and
Mrs. Montelibano were accommodated. Well, I
fully realize now the gravity of my decision in not
advising Senator and Mrs. Lopez, Mr. and Mrs.
Montelibano nor their agents about the erroneous
cancellation and for which I would like them to
know that I am very sorry.
xxx xxx xxx
"Q So it was not your duty to notify Sen. Lopez and
parties that their reservations had been cancelled
since May 18, 1960?
"A As I said before it was my duty. It was my duty but
as I said again with respect to that duty I have the
power to make a decision or use my discretion and
judgment whether I should go ahead and tell the
passenger about the cancellation." (Tsn., pp. 17-19,
28- 29, March 15, 1962.)
At the time plaintiffs bought their tickets, defendant,
therefore, in breach of its known duty, made plaintiffs
believe that their reservations had not been cancelled.
An additional indication of this is the fact that upon the
face of the two tickets of record, namely, the ticket
issued to Alfredo Montelibano, Jr. on May 21, 1960
(Exh. 22) and that issued to Mrs. Alfredo Montelibano,
Jr., on May 23, 1960 (Exh. 23), the reservation status is
stated as "OK". Such willful non-disclosure of the
cancellation or pretense that the reservations for
plaintiffs stood — and not simply the erroneous
cancellation itself — is the factor to which is attributable
the breach of the resulting contracts. And, as above-
stated, in this respect defendant clearly acted in bad
faith.
As if to further emphasize its bad faith on the matter,
defendant subsequently promoted the employee who
cancelled plaintiffs' reservations and told them nothing
about it. The record shows that said employee —
Mariano Herranz — was not subjected to investigation
and suspension by defendant but instead was given a
reward in the form of an increase of salary in June of
the following year (Tsn., 86-88, Nov. 20, 1961).
At any rate, granting all the mistakes advanced by the
defendant, there would at least be negligence so gross
and reckless as to amount to malice or bad faith (Fores
vs. Miranda, L-12163, March 4, 1959; Necesito vs. Paras,
L-10605-06, June 30, 1958). Firstly, notwithstanding
entries in the reservation cards (Exhs. 1 & 3) that the
reservations cancelled are those of the Rufinos only,
Herranz made the mistake, after reading said entries, of
463
sending a wire cancelling all the reservations, including
those of Senator Lopez and party (Tsn., pp. 103-108
Nov. 17, 1961). Secondly, after sending a wire to San
Francisco head office on April 19, 1960 stating his error
and asking for reinstatement, Herranz simply forgot
about the matter. Notwithstanding the reply of San
Francisco head office in April 22, 1960 that it cannot
reinstate Senator Lopez and party (Annex B-Velasco's
to Exh. 6), it was assumed and taken for granted that
reinstatement would be made. Thirdly, Armando
Davila confirmed plaintiff's reservation in a phone call
on April 27, 1960 to defendant's ticket sellers, when at
the time it appeared in plaintiffs' reservation card (Exh.
5) that they were only wait-listed passengers. Fourthly,
defendant's ticket sellers issued plaintiffs' tickets on
May 21 and 23, 1960, without first checking their
reservations just before issuing said tickets. And,
finally, non one among defendant's agents notified
Senator Lopez and party that their reservations had
been cancelled, a precaution that could have averted
their entering with defendant into contracts that the
latter had already placed beyond its power to perform.
Accordingly, there being a clear admission in
defendant's evidence of facts amounting to bad faith on
its part in regard to the breach of its contracts with
plaintiffs, it becomes unnecessary to further discuss the
evidence adduced by plaintiffs to establish defendant's
bad faith. For what is admitted in the course of the trial
does not need to be proved (Sec. 2, Rule 129, Rules of
Court).
Addressing ourselves now to the question of damages,
it is well to state at the outset these rules and principles.
First, moral damages are recoverable in breach of
contracts where the defendant acted fraudulently or in
bad faith (Art. 2220, New Civil Code). Second, in
addition to moral damages, exemplary or corrective
damages may be imposed by way of example or
correction for the public good, in breach of contract
where the defendant acted in a wanton, fraudulent,
reckless, oppressive or malevolent manner (Articles
2229, 2232, New Civil Code). And, third, a written
contract for an attorney's services shall control the
amount to be paid therefor unless found by the court to
be unconscionable or unreasonable (Sec. 24, Rule 138,
Rules of Court).
First, then, as to moral damages. As a proximate result
of defendant's breach in bad faith of its contracts with
plaintiff's the latter suffered social humiliation,
wounded feelings, serious anxiety and mental anguish.
For plaintiffs were travelling with first class tickets
issued-by defendant and yet they were given only the
tourist class. At stop-overs, they were expected to be
among the first-class passengers by those awaiting to
welcome them, only to be found among the tourist
passengers. It may not be humiliating to travel as
tourist passengers; it is humiliating to be compelled to
travel as such, contrary to what is rightfully to be
expected from the contractual undertaking.
Senator Lopez was then Senate President Pro Tempore.
International carriers like defendant know the prestige
of such an office. For the Senate is not only the Upper
Chamber of the Philippine Congress, but the nation's
treaty-ratifying body. It may also be mentioned that in
his aforesaid Office Senator Lopez was in a position to
preside in impeachment cases should the Senate sit as
impeachment Tribunal. And he was former Vice-
President of the Philippines. Senator Lopez was going
to the United States to attend a private business
conference of the Binalbangan-Isabela Sugar Company;
but his aforesaid rank and position were by no means
left behind, and in fact he had a second engagement
awaiting him in the United States; a banquet tendered
by Filipino friends in his honor as Senate President Pro
Tempore (Tsn., pp. 14-15, Nov. 25, 1960). For the moral
damages sustained by him, therefore, an award of
P100,000,000 is appropriate.
Mrs. Maria J. Lopez, as wife of Senator Lopez, shared
his prestige and therefore his humiliation. In addition,
she suffered physical discomfort during the 13-hour
trip (5 hours from Tokyo to Honolulu and 8 hours from
Honolulu to San Francisco). Although Senator Lopez
stated that "she was quite well" (Tsn., p. 22, Nov. 25,
1960) — he obviously meant relatively well, since the
rest of his statement is that two months before, she was
attacked by severe flu and lost 10 pounds of weight and
that she was advised by Dr. Sison to go to the United
States as soon as possible for medical check-up and
relaxation (Ibid.) In fact, Senator Lopez stated, as
shown a few pages after in the transcript of his
testimony, that Mrs. Lopez was sick when she left the
Philippines:
"A. Well, my wife really felt very bad
during the entire trip from
Tokyo to San Francisco. In the
first place, she was sick when we
left the Philippines, and then
with that discomfort which she
[experienced] or suffered during
that evening, it was her worst
experience. I myself, who was
not sick, could not sleep because
of the discomfort." (Tsn., pp. 27-
28, Nov. 25, 1960).
It is not hard to see that in her condition then a physical
discomfort sustained for thirteen hours may well be
considered a physical suffering. And even without
regard to the noise and trepidation inside the plane —
which defendant contends, upon the strength of expert
testimony, to be practically the same in first class and
tourist class — the fact that the seating spaces in the
tourist class are quite narrower than in first class, there
being six seats to a row in the former as against four to
a row in the latter, and that in tourist class there is very
little space for reclining in view of the closer distance
between rows (Tsn., p. 24, Nov. 25, 1960), will suffice to
show that the aforesaid passenger indeed experienced
physical suffering during the trip. Added to this, of
course, was the painful thought that she was deprived
by defendant — after having paid for and expected the
same — of the most suitable place for her, the first class,
where evidently the best of everything would have
been given her, the best seat, service, food and
treatment. Such difference in comfort between first
class and tourist class is too obvious to be recounted, is
in fact the reason for the former's existence, and is
recognized by the airline in charging a higher fare for it
and by the passengers in paying said higher rate.
Accordingly, considering the totality of her suffering
and humiliation, an award to Mrs. Maria J. Lopez of
P50,000.00 for moral damages will be reasonable.
Mr. and Mrs. Alfredo Montelibano, Jr., were traveling
as immediate members of the family of Senator Lopez.
They formed part of the Senator's party as shown also
by the reservation cards of PAN AM. As such they
likewise shared his prestige and humiliation. Although
defendant contends that a few weeks before the flight
they had asked their reservations to be changed from
first class to tourist class — which did not materialize
due to alleged full booking in the tourist class — the
same does not mean they suffered no shame in having
to take tourist class during the flight. For by that time
they had already been made to pay for first class seats
and therefore to expect first class accommodations. As
stated, it is one thing to take the tourist class by free
choice; a far different thing to be compelled to take it
notwithstanding having paid for first class seats.
Plaintiffs-appellants now ask P37,500.00 each for the
two but we note that in their motion for reconsideration
filed in the court a quo, they were satisfied with
P25,000.00 each for said persons. (Record on Appeal, p.
102) For their social humiliation, therefore, the award to
them of P25,000.00 is reasonable.
The rationale behind exemplary or corrective damages
is, as the name implies, to provide an example or
correction for public good. Defendant having breached
its contracts in bad faith, the court, as stated earlier,
may award exemplary damages in addition to moral
damages (Articles 2229, 2232, New Civil Code).
In view of its nature, it should be imposed in such an
amount as to sufficiently and effectively deter similar
breach of contracts in the future by defendant or other
airlines. In this light, we find it just to award P75,000.00
as exemplary or corrective damages.
Now, as to attorney's fees, the record shows a written
contract of services executed on June 1, 1960 (Exh. F)
whereunder plaintiffs-appellants engaged the services
of their counsel — Atty. Vicente J, Francisco — and
agreed to pay the sum of P25,000.00 as attorney's fees
upon the termination of the case in the Court of First
Instance, and an additional sum of P25,000.00 in the
event the case is appealed to the Supreme Court. As
said earlier, a written contract for attorney's services
shall control the amount to be paid therefor unless
found by the court to be unconscionable or
unreasonable. A consideration of the subject matter of
464
the present controversy, of the professional standing of
the attorney for plaintiffs-appellants, and of the extent
of the services rendered by him, shows that said
amount provided for in the written agreement is
reasonable. Said lawyer — whose prominence in the
legal profession is well known — studied the case,
prepared and filed the complaint, conferred with
witnesses, analyzed documentary evidence, personally
appeared at the trial of the case in twenty-two days,
during a period of three years, prepared four sets of
cross-interrogatories for deposition taking, prepared
several memoranda and the motion for reconsideration,
filed a joint record on appeal with defendant, filed a
brief for plaintiffs as appellants consisting of 45 printed
pages and a brief for plaintiffs as appellees consisting of
265 printed pages. And we are further convinced of its
reasonableness because defendant's counsel likewise
valued at P50,000.00 the proper compensation for his
services rendered to defendant in the trial court and on
appeal.
In concluding, let it be stressed that the amount of
damages awarded in this appeal has been determined
by adequately considering the official, political, social,
and financial standing of the offended parties on one
hand, and the business and financial position of the
offender on the other (Domingding vs. Ng. 55 O. G. 10).
And further considering the present rate of exchange
and the terms at which the amount of damages
awarded would approximately be in U.S. dollars, this
Court is all the more of the view that said award is
proper and reasonable.
Wherefore, the judgments appealed from is hereby
modified so as to award in favor of plaintiffs and
against defendants, the following: (1) P200,000.00 as
moral damages, divided among plaintiffs, thus:
P100,000.00 for Senate President Pro Tempore Fernando
Lopez; P50,000.00 for his wife Maria J. Lopez P25,000.00
for his son-in-law Alfredo Montelibano, Jr. and
P25,000.00 for his daughter Mrs. Alfredo Montelibano,
Jr.; (2) P75,000.00 as exemplary or corrective damages;
(3) interest at the legal rate of 6% per annum on the
moral and exemplary damages afore-stated, from
December 14, 1963, the date of the amended decision of
the court a quo, until said damages are fully paid; (4)
P50,000.00 as attorney's fees; and (5) the costs.
Counterclaim dismissed. So ordered.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,
J.B.L., Barrera, Regala, Makalintal, Zaldivar and
Sanchez, JJ., concur.
Dizon, J., is on leave.
SPOUSES ZALAMEA vs.
COURT OF APPEALS, ET AL.
G.R. No. 104235, 18 November 1993, 228 SCRA 23
NOCON, J p:
465
Disgruntled over TransWorld Airlines, Inc.'s refusal to
accommodate them in TWA Flight 007 departing from
New York to Los Angeles on June 6, 1984 despite
possession of confirmed tickets, petitioners filed an
action for damages before the Regional Trial Court of
Makati, Metro Manila, Branch 145. Advocating
petitioners' position, the trial court categorically ruled
that respondent TransWorld Airlines (TWA) breached
its contract of carriage with petitioners and that said
breach was "characterized by bad faith." On appeal,
however, the appellate court found that while there
was a breach of contract on respondent TWA's part,
there was neither fraud nor bad faith because under the
Code of Federal Regulations by the Civil Aeronautics
Board of the United States of America it is allowed to
overbook flights.
The factual backdrop of the case is as follows:
Petitioners-spouses Cesar C. Zalamea and Suthira
Zalamea, and their daughter, Liana Zalamea,
purchased three (3) airline tickets from the Manila
agent of respondent TransWorld Airlines, Inc. for a
flight from New York to Los Angeles on June 6, 1984.
The tickets of petitioners-spouses were purchased at a
discount of 75% while that of their daughter was a full
fare ticket. All three tickets represented confirmed
reservations.
While in New York, on June 4, 1984, petitioners
received notice of the reconfirmation of their
reservations for said flight. On the appointed date,
however, petitioners checked in at 10:00 a.m., an hour
earlier than the scheduled flight at 11:00 a.m. but were
placed on the wait-list because the number of
passengers who had checked in before them had
already taken all the seats available on the flight. Liana
Zalamea appeared as No. 13 on the wait-list while the
two other Zalameas were listed as "No. 34, showing a
party of two." Out of the 42 names on the wait-list, the
first 22 names were eventually allowed to board the
flight to Los Angeles, including petitioner Cesar
Zalamea. The two others, on the other hand, at No. 34,
being ranked lower than 22, were not able to fly. As it
were, those holding full-fare tickets were given first
priority among the wait-listed passengers. Mr.
Zalamea, who was holding the full-fare ticket of his
daughter, was allowed to board the plane; while his
wife and daughter, who presented the discounted
tickets were denied boarding. According to Mr.
Zalamea, it was only later when he discovered that he
was holding his daughter's full-fare ticket.
Even in the next TWA flight to Los Angeles Mrs.
Zalamea and her daughter, could not be accommodated
because it was also fully booked. Thus, they were
constrained to book in another flight and purchased
two tickets from American Airlines at a cost of Nine
Hundred Eighteen ($918.00) Dollars.
Upon their arrival in the Philippines, petitioners filed
an action for damages based on breach of contract of air
carriage before the Regional Trial Court of Makati,
Metro Manila, Branch 145. As aforesaid, the lower court
ruled in favor of petitioners in its decision dated
January 9, 1989 the dispositive portion of which states
as follows:
"WHEREFORE, judgment is hereby
rendered ordering the defendant to
pay plaintiffs the following amounts:
"(1) US $918.00, or its peso equivalent
at the time of payment,
representing the price of the
tickets bought by Suthira and
Liana Zalamea from American
Airlines, to enable them to fly to
Los Angeles from New York
City;
"(2) US $159.49, or its peso equivalent
at the time of payment,
representing the price of Suthira
Zalamea's ticket for TWA Flight
007; Cdpr
"(3) Eight Thousand Nine Hundred
Thirty-four Pesos and Fifty
Centavos (P8,934.50), Philippine
Currency, representing the price
of Liana Zalamea's ticket for
TWA Flight 007;
"(4) Two Hundred Fifty Thousand
Pesos (250,000.00), Philippine
Currency, as moral damages for
all the plaintiffs;
"(5) One Hundred Thousand Pesos
(P100,000.00), Philippine
Currency, as and for attorney's
fees; and
"(6) The costs of suit.
"SO ORDERED."
On appeal, the respondent Court of Appeals held that
moral damages are recoverable in a damage suit
predicated upon a breach of contract of carriage only
where there is fraud or bad faith. Since it is a matter of
record that overbooking of flights is a common and
accepted practice of airlines in the United States and is
specifically allowed under the Code of Federal
Regulations by the Civil Aeronautics Board, no fraud
nor bad faith could be imputed on respondent
TransWorld Airlines.
Moreover, while respondent TWA was remiss in not
informing petitioners that the flight was overbooked
and that even a person with a confirmed reservation
may be denied accommodation on an overbooked
flight, nevertheless it ruled that such omission or
negligence cannot under the circumstances be
considered to be so gross as to amount to bad faith.
Finally, it also held that there was no bad faith in
placing petitioners in the wait-list along with forty-
eight (48) other passengers where full-fare first class
tickets were given priority over discounted tickets.
The dispositive portion of the decision of respondent
Court of Appeals dated October 25, 1991 states as
follows:.
"WHEREFORE, in view of all the
foregoing, the decision under review
is hereby MODIFIED in that the
award of moral and exemplary
damages to the plaintiffs is
eliminated, and the defendant-
appellant is hereby ordered to pay
the plaintiffs the following amounts:
"(1) US$159.49, or its peso equivalent
at the time of payment,
representing the price of Suthira
Zalamea's ticket for TWA Flight
007;
"(2) US$159.49, or its peso equivalent
at the time of payment,
representing the price of Cesar
Zalamea's ticket for TWA Flight
007;
"(3) P50,000.00 as and for attorney's
fees.
"(4) The costs of suit.
"SO ORDERED."
Not satisfied with the decision, petitioners raised the
case on petition for review on certiorari and alleged the
following errors committed by the respondent Court of
Appeals, to wit:
I.
". . . IN HOLDING THAT THERE
WAS NO FRAUD OR BAD FAITH
ON THE PART OF RESPONDENT
TWA BECAUSE IT HAS A RIGHT
TO OVERBOOK FLIGHTS.
II.
". . . IN ELIMINATING THE
AWARD OF EXEMPLARY
DAMAGES.
III.
". . . IN NOT ORDERING THE
REFUND OF LIANA ZALAMEA'S
TWA TICKET AND PAYMENT FOR
466
 THE AMERICAN AIRLINES
TICKETS."
That there was fraud or bad faith on the part of
respondent airline when it did not allow petitioners to
board their flight for Los Angeles in spite of confirmed
tickets cannot be disputed. The U.S. law or regulation
allegedly authorizing overbooking has never been
proved. Foreign laws do not prove themselves nor can
the courts take judicial notice of them. Like any other
fact, they must be alleged and proved. Written law may
be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied with a
certificate that such officer has custody. The certificate
may be made by a secretary of an embassy or legation,
consul general, consul, vice-consul, or consular agent or
by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.
Respondent TWA relied solely on the statement of Ms.
Gwendolyn Lather, its customer service agent, in her
deposition dated January 27, 1986 that the Code of
Federal Regulations of the Civil Aeronautics Board
allows overbooking. Aside from said statement, no
official publication of said code was presented as
evidence. Thus, respondent court's finding that
overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact.
Even if the claimed U.S. Code of Federal Regulations
does exist, the same is not applicable to the case at bar
in accordance with the principle of lex loci contractus
which requires that the law of the place where the
airline ticket was issued should be applied by the court
where the passengers are residents and nationals of the
forum and the ticket is issued in such State by the
defendant airline. Since the tickets were sold and issued
in the Philippines, the applicable law in this case would
be Philippine law.
Existing jurisprudence explicitly states that
overbooking amounts to bad faith, entitling the
passengers concerned to an award of moral damages.
In Alitalia Airways v. Court of Appeals, where passengers
with confirmed bookings were refused carriage on the
last minute, this Court held that when an airline issues
a ticket to a passenger confirmed on a particular flight,
on a certain date, a contract of carriage arises, and the
passenger has every right to expect that he would fly on
that flight and on that date. If he does not, then the
carrier opens itself to a suit for breach of contract of
carriage. Where an airline had deliberately overbooked,
it took the risk of having to deprive some passengers of
their seats in case all of them would show up for check
in. For the indignity and inconvenience of being refused
a confirmed seat on the last minute, said passenger is
entitled to an award of moral damages.
Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals,
where private respondent was not allowed to board the
467
plane because her seat had already been given to
another passenger even before the allowable period for
passengers to check in had lapsed despite the fact that
she had a confirmed ticket and she had arrived on time,
this Court held that petitioner airline acted in bad faith
in violating private respondent's rights under their
contract of carriage and is therefore liable for the
injuries she has sustained as a result.
In fact, existing jurisprudence abounds with rulings
where the breach of contract of carriage amounts to bad
faith. In Pan American World Airways, Inc. v. Intermediate
Appellate Court, where a would-be passenger had the
necessary ticket, baggage claim and clearance from
immigration all clearly and unmistakably showing that
she was indeed a confirmed passenger and that she
was, in fact, included in the passenger manifest of said
flight, and yet was denied accommodation in said
flight, this Court did not hesitate to affirm the lower
court's finding awarding her damages.
A contract to transport passengers is quite different in
kind and degree from any other contractual relation. So
ruled this Court in Zulueta v. Pan American World
Airways, Inc. This is so, for a contract of carriage
generates a relation attended with public duty — a
duty to provide public service and convenience to its
passengers which must be paramount to self-interest or
enrichment. Thus, it was also held that the switch of
planes from Lockheed 1011 to a smaller Boeing 707
because there were only 138 confirmed economy class
passengers who could very well be accommodated in
the smaller plane, thereby sacrificing the comfort of its
first class passengers for the sake of economy, amounts
to bad faith. Such inattention and lack of care for the
interest of its passengers who are entitled to its utmost
consideration entitles the passenger to an award of
moral damages.
Even on the assumption that overbooking is allowed,
respondent TWA is still guilty of bad faith in not
informing its passengers beforehand that it could
breach the contract of carriage even if they have
confirmed tickets if there was overbooking. Respondent
TWA should have incorporated stipulations on
overbooking on the tickets issued or to properly inform
its passengers about these policies so that the latter
would be prepared for such eventuality or would have
the choice to ride with another airline.
Respondent TWA contends that Exhibit I, the detached
flight coupon upon which were written the name of the
passenger and the points of origin and destination,
contained such a notice. An examination of Exhibit I
does not bear this out. At any rate, said exhibit was not
offered for the purpose of showing the existence of a
notice of overbooking but to show that Exhibit I was
used for Flight 007 in first class of June 11, 1984 from
New York to Los Angeles.
Moreover, respondent TWA was also guilty of not
informing its passengers of its alleged policy of giving
less priority to discounted tickets. While the petitioners
had checked in at the same time, and held confirmed
tickets, yet, only one of them was allowed to board the
plane ten minutes before departure time because the
full-fare ticket he was holding was given priority over
discounted tickets. The other two petitioners were left
behind.
It is respondent TWA's position that the practice of
overbooking and the airline system of boarding
priorities are reasonable policies, which when
implemented do not amount to bad faith. But the issue
raised in this case is not the reasonableness of said
policies but whether or not said policies were
incorporated or deemed written on petitioners'
contracts of carriage. Respondent TWA failed to show
that there are provisions to that effect. Neither did it
present any argument of substance to show that
petitioners were duly apprised of the overbooked
condition of the flight or that there is a hierarchy of
boarding priorities in booking passengers. It is evident
that petitioners had the right to rely upon the assurance
of respondent TWA, thru its agent in Manila, then in
New York, that their tickets represented confirmed
seats without any qualification. The failure of
respondent TWA to so inform them when it could
easily have done so thereby enabling respondent to
hold on to them as passengers up to the last minute
amounts to bad faith. Evidently, respondent TWA
placed its self-interest over the rights of petitioners
under their contracts of carriage. Such conscious
disregard of petitioners' rights makes respondent TWA
liable for moral damages. To deter breach of contracts
by respondent TWA in similar fashion in the future, we
adjudge respondent TWA liable for exemplary
damages, as well.
Petitioners also assail the respondent court's decision
not to require the refund of Liana Zalamea's ticket
because the ticket was used by her father. On this score,
we uphold the respondent court. Petitioners had not
shown with certainty that the act of respondent TWA in
allowing Mr. Zalamea to use the ticket of her daughter
was due to inadvertence or deliberate act. Petitioners
had also failed to establish that they did not accede to
said arrangement. The logical conclusion, therefore, is
that both petitioners and respondent TWA agreed,
albeit impliedly, to the course of action taken.
The respondent court erred, however, in not ordering
the refund of the cost of the American Airlines tickets
purchased and used by petitioners Suthira and Liana.
The evidence shows that petitioners Suthira and Liana
were constrained to take the American Airlines flight to
Los Angeles not because they "opted not to use their
TWA tickets on another TWA flight" but because
respondent TWA could not accommodate them either
on the next TWA flight which was also fully booked.
The purchase of the American Airlines tickets by
petitioners Suthira and Liana was the consequence of
respondent TWA's unjustifiable breach of its contracts
of carriage with petitioners. In accordance with Article
2201, New Civil Code, respondent TWA should,
therefore, be responsible for all damages which may be
reasonably attributed to the non-performance of its
obligation. In the previously cited case of Alitalia
Airways v. Court of Appeals, this Court explicitly held
that a passenger is entitled to be reimbursed for the cost
of the tickets he had to buy for a flight on another
airline. Thus, instead of simply being refunded for the
cost of the unused TWA tickets, petitioners should be
awarded the actual cost of their flight from New York
to Los Angeles. On this score, we differ from the trial
court's ruling which ordered not only the
reimbursement of the American Airlines tickets but also
the refund of the unused TWA tickets. To require both
prestations would have enabled petitioners to fly from
New York to Los Angeles without any fare being paid.
The award to petitioners of attorney's fees is also
justified under Article 2208(2) of the Civil Code which
allows recovery when the defendant's act or omission
has compelled plaintiff to litigate or to incur expenses
to protect his interest. However, the award for moral
and exemplary damages by the trial court is excessive
in the light of the fact that only Suthira and Liana
Zalamea were actually "bumped off." An award of
P50,000.00 moral damages and another P50,000.00
exemplary damages would suffice under the
circumstances obtaining in the instant case.
WHEREFORE, the petition is hereby GRANTED and
the decision of the respondent Court of Appeals is
hereby MODIFIED to the extent of adjudging
respondent TransWorld Airlines to pay damages to
petitioners in the following amounts, to wit:
(1) US$918.00 or its peso equivalent at the time of
payment representing the price of the tickets
bought by Suthira and Liana Zalamea from
American Airlines, to enable them to fly to Los
Angeles from New York City;
(2) P50,000.00 as moral damages;
(3) P50,000.00 as exemplary damages;
(4) P50,000.00 as attorney's fees; and
(5) Costs of suit.
SO ORDERED.
Narvasa, C .J ., Padilla, Regalado and Puno, JJ ., concur.
PEOPLE OF THE PHILIPPINES vs. PRADES
G.R. No. 127569, 30 July 1998, 293 SCRA 411
PER CURIAM p:
Before the Court for automatic review is the August 13,
1996 judgment of the Regional Trial Court of Iriga City,
Branch 36, in Criminal Case No. IR-3666, finding
accused-appellant Senen Prades guilty of rape and
sentencing him to suffer the supreme penalty of death.
The judgment likewise ordered appellant to pay private
complainant P50,000.00 by way of moral damages, as
well as the costs.
468
The information in Criminal Case No. IR-3666 alleges:
That on or about the 24th day of March, 1994, at about
12:00 o'clock midnight, at San Vicente Ogbon, Nabua,
Camarines Sur, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, armed with a
handgun, by means of force and intimidation and with
lewd design, did then and there willfully, unlawfully
and feloniously have sexual intercourse with the said
Emmie R. Rosales against the latter's will, and that the
accused perpetrated the offense charged at the dwelling
of herein complainant and with the use of a firearm in
threatening complainant, to the latter's damage and
prejudice in such amount as may be proven in court.
With the assistance of counsel de oficio, appellant
pleaded not guilty to the charge. The defense waived
the pre-trial and the case proceeded to trial in due
course.
The private complainant and the physician who
conducted a medical examination on her were
presented in the trial court to establish the case for the
People. After the physician had testified as the first
witness, appellant absconded. The records of the case
reveal that appellant escaped from his escort guard
while he was being transported from a hearing at the
Regional Trial Court of Iriga City to the Tinangis Penal
Farm in Pili, Camarines Sur on March 29, 1995. Trial
accordingly continued in absentia.
In its decision dated August 13, 1996, the court a quo
found appellant guilty beyond reasonable doubt of the
crime of rape, aggravated by the circumstance of
dwelling, and imposed upon him the penalty of death.
The lower court issued another warrant of arrest for the
capture of appellant. It has not been served to date as
he remains at large, a fugitive from justice. Because
appellant was condemned to suffer the principal
penalty of death, his conviction is now before the Court
on automatic review.
As its lone assignment of error, the defense alleges that
the court below erred in finding appellant guilty
beyond reasonable doubt of the crime of rape. It is
contended that the testimony of complainant on the
identity of appellant as the author of the crime is
doubtful not only because there was insufficient
lighting in the room of complainant, where the alleged
act of rape took place, but also because complainant
had never been face to face with appellant prior to the
incident.
The Court has exhaustively reviewed and objectively
analyzed the records of this case, especially so because
a capital offense is involved, and sees no cogent reason
to depart from the findings and conclusions of the court
below. We consequently affirm the conviction of
appellant.
xxx xxx xxx
469
The lower court, however, erred in classifying the
award of P50,000.00 to the offended party as being in
the character of moral damages: Jurisprudence has
elucidated that the award authorized by the criminal
law as civil indemnity ex delicto for the offended party,
in the amount authorized by the prevailing judicial
policy and aside from other proven actual damages, is
itself equivalent to actual or compensatory damages in
civil law. For that matter, the civil liability ex delicto
provided by the Revised Penal Code, that is, restitution,
reparation and indemnification, all correspond to actual
or compensatory damages in the Civil Code, since the
other damages provided therein are moral, nominal,
temperate or moderate, liquidated, and exemplary or
corrective damages which have altogether different
concepts and fundaments.
We reiterate here that said civil indemnity is mandatory
upon the finding of the fact of rape; it is distinct from
and should not be denominated as moral damages
which are based on different jural foundations and
assessed by the court in the exercise of sound
discretion. Evidently, therefore, the lower court actually
intended the award of P50,000.00 as indemnification to
be paid to the victim.
On this score, we have to take note of a new policy
adopted by the Court. The recent judicial prescription is
that the indemnification for the victim shall be in the
increased amount of P75,000.00 if the crime of rape is
committed or effectively qualified by any of the
circumstances under which the death penalty is
authorized by the applicable amendatory laws.
Applying the foregoing policy, the civil indemnity to be
awarded to the offended party in the case at bar is and
should be P75,000.00.
One other cognate development in the case law on rape
is applicable to the present disposition. The Court has
also resolved that in crimes of rape, such as that under
consideration, moral damages may additionally be
awarded to the victim in the criminal proceeding, in
such amount as the Court deems just, without the need
for pleading or proof of the basis thereof as has
heretofore been the practice. Indeed, the conventional
requirement of allegata et probata in civil procedure
and for essentially civil cases should be dispensed with
in criminal prosecutions for rape with the civil aspect
included therein, since no appropriate pleadings are
filed wherein such allegations can be made.
Corollarily, the fact that complainant has suffered the
trauma of mental, physical and psychological sufferings
which constitute the bases for moral damages are too
obvious to still require the recital thereof at the trial by
the victim, since the Court itself even assumes and
acknowledges such agony on her part as a gauge of her
credibility. What exists by necessary implication as
being ineludibly present in the case need not go
through the superfluity of still being proved through a
testimonial charade.

The People having established the guilt of appellant
beyond reasonable doubt, his conviction and the
penalty imposed by the court a quo is correct and must
consequently be affirmed. Withal, four Members of this
Court maintain their position that Republic Act No.
7659 insofar as it prescribes the death penalty is
unconstitutional; but they nevertheless submit to the
ruling of the majority that the law is constitutional and
that the death penalty should be imposed in this case.
WHEREFORE, the judgment of the Regional Trial
Court of Iriga City, Branch 36, in Criminal Case No. IR-
3666 is hereby AFFIRMED, with the MODIFICATION
that accused-appellant Senen Prades is ordered to
indemnify the offended party, Emmie R. Rosales, in the
amount of P75,000.00 as compensatory damages, and to
pay the additional amount of P50,000.00 as moral
damages, with costs in all instances.
In accordance with Article 83 of the Revised Penal
Code, as amended by Section 25 of Republic Act No.
7659, upon finality of this decision, let the records of
this case be forthwith forwarded to the Office of the
President for possible exercise of the pardoning power.
SO ORDERED.
Narvasa, C .J., Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Martinez, Quisumbing and Purisima, JJ ., concur.
EXPERTRAVEL & TOURS, INC. vs.
COURT OF APPEALS, ET AL.
G.R. No. 130030, 25 June 1999, 309 SCRA 141
VITUG, J p:
Petitioner, Expertravel and Tours, Inc., seeks in the
instant petition for review on certiorari a modification
of the decision, dated 20 March 1997, of the Court of
Appeals affirming in toto the 07th November 1994
judgment of the Regional Trial Court (Branch 5) of
Manila, the dispositive portion of which reads:
"WHEREFORE, in view of all the foregoing,
judgment is rendered declaring the instant suit
DISMISSED, and hereby orders the plaintiff to
pay defendant Ricardo Lo moral damages in
the amount of P30,000.00; attorney's fees in the
amount of P10,000.00, and to pay the costs of
the suit.
"No pronouncement as to other damages for
lack of evidence to warrant the same."
The factual and case settings of the controversy are
culled from the pleadings on record and the assailed
decision of the appellate court and that of the court a
quo.
On 07 October 1987, Expertravel & Tours, Inc.,
("Expertravel"), a domestic corporation engaged in the
travel agency business, issued to private respondent
Ricardo Lo four round-trip plane tickets for Hongkong,
together with hotel accommodations and transfers, for a
total cost of P39,677.20. Alleging that Lo had failed to
pay the amount due, Expertravel caused several
demands to be made. Since the demands were ignored
by Lo, Expertravel filed a court complaint for recovery
of the amount claimed plus damages.
Respondent Lo explained, in his answer, that his
account with Expertravel had already been fully paid.
The outstanding account was remitted to Expertravel
through its then Chairperson, Ms. Ma. Rocio de Vega,
who was theretofore authorized to deal with the clients
of Expertravel. The payment was evidenced by a Monte
de Piedad Check No. 291559, dated 06 October 1987, for
P42,175.20 for which Ms. de Vega, in turn, issued City
Trust Check No. 417920 in favor of Expertravel for the
amount of P50,000.00, with the notation "placement
advance for Ricardo Lo, etc." Per its own invoice,
Expertravel received the sum on 10 October 1987.
The trial court, affirmed by the appellate court, held
that the payment made by Lo was valid and binding on
petitioner Expertravel. Even on the assumption that Ms.
de Vega had not been specifically authorized by
Expertravel, both courts said, the fact that the amount
"delivered to the latter remain(ed) in its possession up
to the present, mean(t) that the amount redounded to
the benefit of petitioner Expertravel, in view of the
second paragraph of Article 1241 of the Civil Code to
the effect that payment made to a third person shall
also be valid in so far as it has redounded to the benefit
of the creditor."
In this recourse, petitioner confines itself to the
following related legal issues; viz:
"I. Can moral damages be recovered in a clearly
unfounded suit?
"II. Can moral damages be awarded for negligence or
quasi-delict that did not result to physical injury to
the offended party?"
There is merit in the petition.
Moral damages are not punitive in nature but are
designed to compensate and alleviate in some way the
physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury
unjustly caused to a person. Although incapable of
pecuniary computation, moral damages, nevertheless,
must somehow be proportional to and in
approximation of the suffering inflicted. Such damages,
to be recoverable, must be the proximate result of a
wrongful act or omission the factual basis for which is
satisfactorily established by the aggrieved party. An
award of moral damages would require certain
conditions to be met; to wit: (1) First, there must be an
470
injury, whether physical, mental or psychological,
clearly sustained by the claimant; (2) second, there must
be a culpable act or omission factually established; (3)
third, the wrongful act or omission of the defendant is
the proximate cause of the injury sustained by the
claimant; and (4) fourth, the award of damages is
predicated on any of the cases stated in Article 2219.
Under the provisions of this law, in culpa contractual or
breach of contract, moral damages may be recovered
when the defendant acted in bad faith or was guilty of
gross negligence (amounting to bad faith) or in wanton
disregard of his contractual obligation and,
exceptionally, when the act of breach of contract itself is
constitutive of tort resulting in physical injuries. By
special rule in Article 1764, in relation to Article 2206, of
the Civil Code, moral damages may also be awarded in
case the death of a passenger results from a breach of
carriage. In culpa aquiliana, or quasi-delict, (a) when an
act or omission causes physical injuries, or (b) where
the defendant is guilty of intentional tort, moral
damages may aptly be recovered. This rule also applies,
as aforestated, to contracts when breached by tort. In
culpa criminal, moral damages could be lawfully due
when the accused is found guilty of physical injuries,
lascivious acts, adultery or concubinage, illegal or
arbitrary detention, illegal arrest, illegal search, or
defamation. Malicious prosecution can also give rise to
a claim for moral damages. The term "analogous cases,"
referred to in Article 2219, following the ejusdem
generis rule, must be held similar to those expressly
enumerated by the law.
Although the institution of a clearly unfounded civil
suit can at times be a legal justification for an award of
attorney's fees, such filing, however, has almost
invariably been held not to be a ground for an award of
moral damages. The rationale for the rule is that the law
could not have meant to impose a penalty on the right
to litigate. The anguish suffered by a person for having
been made a defendant in a civil suit would be no
different from the usual worry and anxiety suffered by
anyone who is haled to court, a situation that cannot by
itself be a cogent reason for the award of moral
damages. If the rule were otherwise, then moral
damages must every time be awarded in favor of the
prevailing defendant against an unsuccessful plaintiff.
The Court confirms, once again, the foregoing rules.
WHEREFORE, the petition is GRANTED and the
award of moral damages to respondent Ricardo Lo
under the assailed decision is DELETED. In its other
aspects, the appealed decision shall remain
undisturbed. No costs.
SO ORDERED.
Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.
Romero, J., on official business leave abroad.
4. NOMINAL AND TEMPERATE DAMAGES
471
ARTICLE 2221. Nominal damages are adjudicated in
order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by
him.
ARTICLE 2222. The court may award nominal
damages in every obligation arising from any source
enumerated in Article 1157, or in every case where any
property right has been invaded.
ARTICLE 2223. The adjudication of nominal damages
shall preclude further contest upon the right involved
and all accessory questions, as between the parties to
the suit, or their respective heirs and assigns.
ARTICLE 2224. Temperate or moderate damages,
which are more than nominal but less than
compensatory damages, may be recovered when the
court finds that some pecuniary loss has been
suffered but its amount can not, from the nature of
the case, be provided with certainty.
ARTICLE 2225. Temperate damages must be
reasonable under the circumstances.
NORTHWEST AIRLINES, INC. vs.
CUENCA, ET AL.
G.R. No. L-22425, 31 August 1965, 14 SCRA 1063
CONCEPCION, J p:
This is an action for damages for alleged breach of
contract. After appropriate proceedings the Court of
First Instance of Manila, in which the case was
originally filed, rendered judgment sentencing
defendant Northwest Airlines, Inc., — hereinafter
referred to as petitioner — to pay to plaintiff Cuenca —
hereinafter referred to as respondent — "the sum of
P20,000 as moral damages, together with the sum of
P5,000 as exemplary damages, with legal interest
thereon from the date of the filing of the complaint" —
December 12, 1959 — "until fully paid, plus the further
sum of P2,000 as attorney's fees and expenses of
litigation". On appeal taken by petitioner, said decision
was affirmed by the Court of Appeals, except as to the
P50,000.00 exemplary damages, which was eliminated,
and the P20,000.00 award for moral damages, which
was converted into nominal damages. The case is now
before us on petition for review by certiorari filed by
petitioner, upon the ground that the lower court has
erred: (1) in holding that the Warsaw Convention of
October 12, 1929, relative to transportation by air is not
in force in the Philippines; (2) in not holding that
respondent has no cause of action; and (3) in awarding
P20,000 as nominal damages.
We deem it unnecessary to pass upon the first
assignment of error because the same is the basis of the
second assignment of error, and the latter is devoid of
merit, even if we assumed the former to be well taken.
Indeed, the second assignment of error is predicated
upon Articles 17, 18 and 19 of said Convention, reading:
"ART. 17. The carrier shall be
liable for damage sustained in the
event of the death or wounding of a
passenger or any other bodily injury
suffered by a passenger if the
accident which caused the damage so
sustained took place on board the
aircraft or in the course of any of the
operations of embarking or
disembarking.
"ART. 18. (1) The
carrier shall be liable for damage
sustained in the event of the
destruction or loss of, or of damage
to, any checked baggage, or any
goods, if the occurrence which caused
the damage so sustained took place
during the transportation by air.
"(2) The transportation by air
within the meaning of the preceding
paragraph shall comprise the period
during which the baggage or goods
are in charge of the carrier, whether
in an airport or on board an aircraft,
or, in the case of a landing outside an
airport, in any place whatsoever.
"(3) The period of the
transportation by air shall not extend
to any transportation by land, by sea,
or by river performed outside an
airport. If, however, such
transportation takes place in the
performance of a contract for
transportation by air, for the purpose
of loading, delivery, or
transshipment, any damage is
presumed, subject to proof to the
contrary, to have been the result of an
event which took place during the
transportation by air.
"ART. 19. The carrier shall be
liable for damage occasioned by
delay in the transportation by air of
passengers, baggage, or goods."
Petitioner argues that pursuant to these provisions, an
air "carrier is liable only" in the event of death of a
passenger or injury suffered by him, or of destruction
or loss of, or damage to any checked baggage or any
goods, or of delay in the transportation by air of
passengers, baggage or goods. This pretense is not
borne out by the language of said Articles. The same
merely declare the carrier liable for damages in the
enumerated cases, if the conditions therein specified are
present. Neither said provisions nor others in the
aforementioned Convention regulate or exclude
liability for other breaches of contract by carrier. Under
petitioner's theory, an air carrier would be exempt from
any liability for damages in the event of its absolute
refusal, in bad faith, to comply with a contract of
carriage, which is absurd.
The third assignment of error is based upon Medina vs.
Cresencia (52 Off. Gaz. 4606), and Quijano vs. Philippine
Air Lines (CA-G.R. No. 21804). Neither case is, however,
in point, aside from the fact that the latter is not
controlling upon us. In the first case, this Court
eliminated a P10,000 award for nominal damages,
because the aggrieved party had already been awarded
P6,000 as compensatory damages, P30,000 as moral
damages and P10,000 as exemplary damages, and
"nominal damages cannot co-exist with compensatory
damages". In the case at bar, the Court of Appeals has
adjudicated no such compensatory, moral and
exemplary damages to respondent herein.
Moreover, there are special reasons why the P20,000.00
award in favor of respondent herein is justified, even if
said award were characterized as nominal damages.
When his contract of carriage was violated by the
petitioner, respondent held the office of Commissioner
of Public Highways of the Republic of the Philippines.
Having boarded petitioner's plane in Manila with a first
class ticket to Tokyo, he was, upon arrival at Okinawa,
transferred to the tourist class compartment. Although
he revealed that he was traveling in his official capacity
as official delegate of the Republic to a conference in
Tokyo, an agent of petitioner rudely compelled him, in
the presence of other passengers, to move, over his
objection, to the tourist class, under threat of otherwise
leaving him in Okinawa. In order to reach the
conference on time, respondent had no choice but to
obey.
It is true that said ticket was marked "W/L", but
respondent's attention was not called thereto. Much less
was he advised that "W/L" meant "wait listed". Upon
the other hand, having paid the first class fare in full
and having been given first class accommodation as he
took petitioner's plane in Manila, respondent was
entitled to believe that this was a confirmation of his
first class reservation and that he would keep the same
until his ultimate destination, Tokyo. Then, too,
petitioner has not tried to explain or even alleged that
the person to whom respondent's first class seat was
given had a better right thereto. In other words, since
the offense had been committed with full knowledge of
the fact that respondent was an official representative
of the Republic of the Philippines, the sum of P20,000
awarded as damages may well be considered as merely
nominal. At any rate, considering that petitioner's agent
had acted in a wanton, reckless and oppressive manner,
said award may, also, be considered as one for
exemplary damages.
WHEREFORE, the decision appealed from is hereby
affirmed, with costs against the petitioner. It is so
ordered.
472

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Dizon,
Regala, Makalintal and Zaldivar, JJ., concur.
Bengzon, J.P., took no part.
Barrera, J., is on leave.
JAPAN AIRLINES vs. COURT OF APPEALS, ET AL.
G.R. No. 118664, 7 August 1998
ROMERO, J p:
Before us is an appeal by certiorari filed by petitioner
Japan Airlines, Inc. (JAL) seeking the reversal of the
decision of the Court of Appeals, which affirmed with
modification the award of damages made by the trial
court in favor of herein private respondents Enrique
Agana, Maria Angela Nina Agana, Adelia Francisco
and Jose Miranda.
On June 13, 1991, private respondent Jose Miranda
boarded JAL flight No. JL 001 in San Francisco,
California bound for Manila. Likewise, on the same day
private respondents Enrique Agana, Maria Angela
Nina Agana and Adelia Francisco left Los Angeles,
California for Manila via JAL flight No. JL 061. As an
incentive for traveling on the said airline, both flights
were to make an overnight stopover at Narita, Japan, at
the airlines' expense, thereafter proceeding to Manila
the following day.
Upon arrival at Narita, Japan on June 14, 1991, private
respondents were billeted at Hotel Nikko Narita for the
night. The next day, private respondents, on the final
leg of their journey, went to the airport to take their
flight to Manila However, due to the Mt. Pinatubo
eruption, unrelenting ashfall blanketed Ninoy Aquino
International Airport (NAIA), rendering it inaccessible
to airline traffic. Hence, private respondents' trip to
Manila was cancelled indefinitely.
To accommodate the needs of its stranded passengers,
JAL rebooked all the Manila-bound passengers on
flight No. 741 due to depart on June 16, 1991 and also
paid for the hotel expenses for their unexpected
overnight stay. On June 16, 1991, much to the dismay of
the private respondents, their long anticipated flight to
Manila was again cancelled due to NAIA's indefinite
closure. At this point, JAL informed the private
respondents that it would no longer defray their hotel
and accommodation expense during their stay in
Narita.
Since NAIA was only reopened to airline traffic on June
22, 1991, private respondents were forced to pay for
their accommodations and meal expenses from their
personal funds from June 16 to June 21, 1991. Their
unexpected stay in Narita ended on June 22, 1991 when
they arrived in Manila on board JL flight No. 741.
473
Obviously, still reeling from the experience, private
respondents, on July 25, 1991, commenced an action for
damages against JAL before the Regional Trial Court of
Quezon City, Branch 104. To support their claim,
private respondents asserted that JAL failed to live up
to its duty to provide care and comfort to its stranded
passengers when it refused to pay for their hotel and
accommodation expenses from June 16 to 21, 1991 at
Narita, Japan. In other words, they insisted that JAL
was obligated to shoulder their expenses as long as they
were still stranded in Narita. On the other hand, JAL
denied this allegation and averred that airline
passengers have no vested right to these amenities in
case a flight is cancelled due to " force majeure."
On June 18, 1992, the trial court rendered its judgment
in favor of private respondents holding JAL liable for
damages, viz.:
"WHEREFORE, judgment is rendered
in favor of plaintiffs ordering the
defendant Japan Airlines to pay the
plaintiffs Enrique Agana, Adalia B.
Francisco and Maria Angela Nina
Agana the sum of One million Two
Hundred forty-six Thousand Nine
Hundred Thirty-Six Pesos
(P1,246,936.00) and Jose Miranda the
sum of Three Hundred Twenty
Thousand Six Hundred sixteen and
31/100 (P320,616.31) as actual, moral
and exemplary damages and pay
attorney's fees in the amount of Two
Hundred Thousand Pesos
(P200,000.00), and to pay the costs of
suit."
Undaunted, JAL appealed the decision before the Court
of Appeals, which, however, with the exception of
lowering the damages awarded affirmed the trial
court's finding, thus:
''Thus, the award or moral damages
should be as it is hereby reduced to
P200,000.00 for each of the plaintiffs,
the exemplary damages to
P300,000.00 and the attorney's fees to
P100,000.00 plus the costs.
WHEREFORE, with the foregoing
Modification, the judgment appealed
from is hereby AFFIRMED in all
other respects."
JAL filed a motion for reconsideration which proved
futile and unavailing.
Failing in its bid to reconsider the decision, JAL has
now filed this instant petition.
The issue to be resolved is whether JAL, as a common
carrier has the obligation to shoulder the hotel and meal
expenses of its stranded passengers until they have
reached their final destination, even if the delay were
caused by "force majeure."
To begin with, there is no dispute that the Mt. Pinatubo
eruption prevented JAL from proceeding to Manila on
schedule. Likewise, private respondents concede that
such event can be considered as "force majeure" since
their delayed arrival in Manila was not imputable to
JAL.
However, private respondents contend that while JAL
cannot be held responsible for the delayed arrival in
Manila, it was nevertheless liable for their living
expenses during their unexpected stay in Narita since
airlines have the obligation to ensure the comfort and
convenience of its passengers. While we sympathize
with the private respondents' plight, we are unable to
accept this contention.
We are not unmindful of the fact that in a plethora of
cases we have consistently ruled that a contract to
transport passengers is quite different in kind and
degree from any other contractual relation. It is safe to
conclude that it is a relationship imbued with public
interest. Failure on the part of the common carrier to
live up to the exacting standards of care and diligence
renders it liable for any damages that may be sustained
by its passengers. However, this is not to say that
common carriers are absolutely responsible for all
injuries or damages even if the same were caused by a
fortuitous event. To rule otherwise would render the
defense or "force majeure" as an exception from any
liability, illusory and ineffective.
Accordingly, there is no question that when a party is
unable to fulfill his obligation because of "force
majeure," the general rule is that he cannot be held
liable for damages for non-performance. Corollarily,
when JAL was prevented from resuming its flight to
Manila due to the effects of Mt. Pinatubo eruption,
whatever losses or damages in the form of hotel and
meal expenses the stranded passengers incurred,
cannot be charged to JAL. Yet it is undeniable that JAL
assumed the hotel expenses of respondents for their
unexpected overnight stay on June 15, 1991.
Admittedly, to be stranded for almost a week in a
foreign land was an exasperating experience for the
private respondents. To be sure, they underwent
distress and anxiety during their unanticipated stay in
Narita, but their predicament was not due to the fault
or negligence of JAL but the closure of NAIA to
international flights. Indeed, to hold JAL, in the absence
of bad faith or negligence, liable for the amenities of its
stranded passengers by reason of a fortuitous event is
too much of a burden to assume.
Furthermore, it has been held that airline passengers
must take such risks incident to the mode of travel. In
this regard, adverse weather conditions or extreme
climatic changes are some of the perils involved in air
travel, the consequences of which the passenger must
assume or expect. After all, common carriers are not the
insurer of all risks.
Paradoxically, the Court of Appeals, despite the
presence of "force majeure," still ruled against JAL
relying in our decision in PAL v. Court of Appeals, thus:
"The position taken by PAL in this
case clearly illustrates its failure to
grasp the exacting standard required
by law. Undisputably, PAL's
diversion of its flight due to
inclement weather was a fortuitous
event. Nonetheless, such occurrence
did not terminate PAL's contract with
its passengers. Being in the business
of air carriage and the sole one to
operate in the country, PAL is
deemed equipped to deal with
situations as in the case at bar. What
we said in one case once again must
be stressed, i.e., the relation of carrier
and passenger continues until the
latter has been landed at the port of
destination and has left the carrier's
premises. Hence, PAL necessarily
would still have to exercise
extraordinary diligence in
safeguarding the comfort,
convenience and safety of its
stranded passengers until they have
reached their final destination. On
this score, PAL grossly failed
considering the then ongoing battle
between government forces and
Muslim rebels in Cotabato City and
the fact that the private respondent
was a stranger to the place."
The reliance is misplaced. The factual background of
the PAL case is different from the instant petition. In
that case there was indeed a fortuitous event resulting
in the diversion of the PAL flight. However, the
unforeseen diversion was worsened when "private
respondents (passenger) was left at the airport and
could not even hitch a ride in a Ford Fiera loaded with
PAL personnel," not to mention the apparent apathy of
the PAL station manager as to the predicament of the
stranded passengers. In light of these circumstances, we
held that if the fortuitous event was accompanied by
neglect and malfeasance by the carrier's employees, an
action for damages against the carrier is permissible.
Unfortunately, for private respondents, none of these
conditions are present in the instant petition.
We are not prepared, however, to completely absolve
petitioner JAL from any liability. It must be noted that
private respondents bought tickets from the United
States with Manila as their final destination. While JAL
was no longer required to defray private respondents'
living expenses during their stay in Narita on account
474
of the fortuitous event, JAL had the duty to make the
necessary arrangements to transport private
respondents on the first available connecting flight to
Manila. Petitioner JAL reneged on its obligation to look
after the comfort and convenience of its passengers
when it declassified private respondents from "transit
passengers" to "new passengers" as a result of which
private respondents were obliged to make the
necessary arrangements themselves for the next flight
to Manila. Private respondents were placed on the
waiting list from June 20 to June 24. To assure
themselves of a seat on an available flight, they were
compelled to stay in the airport the whole day of June
22, 1991 and it was only at 8:00 p.m. of the aforesaid
date that they were advised that they could be
accommodated in said flight which flew at about 9:00
a.m. the next day.
We are not oblivious to the fact that the cancellation of
JAL flights to Manila from June 15 to June 21, 1991
caused considerable disruption in passenger booking
and reservation. In fact, it would be unreasonable to
expect, considering NAIA's closure, that JAL flight
operations would be normal on the days affected.
Nevertheless, this does not excuse JAL from its
obligation to make the necessary arrangements to
transport private respondents on its first available flight
to Manila. After all, it had a contract to transport
private respondents from the United States to Manila as
their final destination.
Consequently, the award of nominal damages is in
order. Nominal damages are adjudicated in order that a
right of a plaintiff, which has been violated or invaded
by the defendant, may be vindicated or recognized and
not for the purpose of indemnifying any loss suffered
by him. The court may award nominal damages in
every obligation arising from any source enumerated in
Article 1157, or in every case where any property right
has been invaded.
WHEREFORE, in view of the foregoing, the decision of
the Court of Appeals dated December 22, 1993 is hereby
MODIFIED. The award of actual moral and exemplary
damages is hereby DELETED. Petitioner JAL is ordered
to pay each of the private respondents nominal
damages in the sum of P100,000.00 each including
attorney's fees of P50,000.00 plus costs.
SO ORDERED.
Narvasa, C .J ., Kapunan and Purisima, JJ ., concur.
ARMOVIT, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 88561, 20 April 1990
GANCAYCO, J p:
This is a case which involves a Filipino physician and
his family residing in the United States who came home
475
to the Philippines on a Christmas visit. They were
bumped off at the Manila International Airport on their
return flight to the U.S. because of an erroneous entry
in their plane tickets relating to their time of departure.
In October 1981, the petitioners decided to spend their
Christmas holidays with relatives and friends in the
Philippines, so they purchased from private
respondent, (Northwest Airlines, Inc.) three (3) round
trip airline tickets from the U.S. to Manila and back,
plus three (3) tickets for the rest of the children, though
not involved in the suit. Each ticket of the petitioners
which was in the handwriting of private respondent's
tickets sales agent contains the following entry on the
Manila to Tokyo portion of the return flight: "from
Manila to Tokyo, NW flight 002, date 17 January, time
10:30 A.M. Status, OK."
On their return trip from Manila to the U.S. scheduled
on January 17, 1982, petitioner arrived at the check-in
counter of private respondent at the Manila
International Airport at 9:15 in the morning, which is a
good one (1) hour and fifteen (15) minutes ahead of the
10:30 A.M. scheduled flight time recited in their tickets.
Petitioners were rudely informed that they cannot be
accommodated inasmuch as Flight 002 scheduled at
9:15 a.m. was already taking off and the 10:30 A.M.
flight time entered in their plane tickets was erroneous.
Previous to the said date of departure petitioners re-
confirmed their reservations through their
representative Ernesto Madriaga who personally
presented the three (3) tickets at the private
respondent's Roxas Boulevard office. 2 The departure
time in the three (3) tickets of petitioners was not
changed when re-confirmed. The names of petitioners
appeared in the passenger manifest and confirmed as
Passenger Nos. 306, 307, and 308, Flight 002.
Herein petitioner Dr. Armovit protested in extreme
agitation that because of the bump-off he will not be
able to keep his appointments with his patients in the
U.S. Petitioners suffered anguish, wounded feelings,
and serious anxiety day and night of January 17th until
the morning of January 18th when they were finally
informed that seats will be available for them on the
flight that day.
Because of the refusal of the private respondent to heed
the repeated demands of the petitioners for
compensatory damages arising from the aforesaid
breach of their air-transport contracts, 4 petitioners
were compelled to file an action for damages in the
Regional Trial Court of Manila.
After trial on the merits, a decision was rendered on
July 2, 1985, the dispositive part of which reads as
follows:
"WHEREFORE, in view of the
foregoing considerations, judgment is
hereby rendered ordering defendant
to pay plaintiffs actual, moral,
 exemplary and nominal damages, this Court awarded damages for the gross negligence of
plus attorney's fees, as follows: the airline which amounted to malice and bad faith and
which tainted the breach of air transportation contract.
a) Actual damages in favor of Dr.
Herman Armovit in the sum of Thus in Air France, this Court observed:
P1,300.00, with interest at the
legal rate from January 17, 1982; "A contract to transport passengers is
quite different in kind and degree
b) Moral damages of P500,000.00, from any other contractual relation.
exemplary damages of And this, because of the relation
P500,000.00, and nominal which an air carrier sustains with the
damages of P100,000.00 in favor public. Its business is mainly with the
of Dr. Herman Armovit; traveling public. It invites people to
avail of the comforts and advantages
c) Moral damages of P300,000.00, it offers. The contract of air carriage,
exemplary damages of therefore, generates a relation
P300,000.00, and nominal attended with a public duty. Neglect
damages of P50,000.00 in favor of or malfeasance of the carrier's
Mrs. Dora Armovit; employees, naturally, could give
ground for an action for damages.
d) Moral damages of P300,000.00,
exemplary damages of "Passengers do not contract merely
P300,000.00, and nominal for transportation. They have the
damages of P50,000.00 in favor of right to be treated by the carrier's
Miss Jacqueline Armovit; and employees with kindness, respect,
courtesy and due consideration. They
e) Attorney's fees of 5% of the total are entitled to be protected against
awards under the above personal misconduct, injurious
paragraphs. language, indignities and abuses
from such employees. So it is, that
plus costs of suit." any rude or discourteous conduct on
the part of employees towards a
Not satisfied therewith, private respondent interposed passenger gives the latter an action
an appeal to the Court of Appeals wherein in due for damages against the carrier."
course a decision was rendered on June 20, 1989, the
relevant portion and dispositive part of which read as The gross negligence committed by private respondent
follows: in the issuance of the tickets with entries as to the time
of the flight, the failure to correct such erroneous
xxx xxx xxx entries and the manner by which petitioners were
rudely informed that they were bumped off are clear
Both petitioners and private respondent elevated the indicia of such malice and bad faith and establish that
matter to this Court for review by certiorari. private respondent committed a breach of contract
which entitles petitioners to moral damages.
xxx xxx xxx
The appellate court observed that the petitioners failed
The petition is impressed with merit. to take the witness stand and testify on the matter. It
overlooked however, that the failure of the petitioner to
The appellate court observed that private respondent appear in court to testify was explained by them. The
was guilty of gross negligence not only in the issuance assassination of Senator Benigno Aquino, Jr. on August
of the tickets by the erroneous entry of the date of 21, 1983 following the year they were bumped off
departure and without changing or correcting the error caused a turmoil in the country. This turmoil spilled
when the said three (3) tickets were presented for re- over to the year 1984 when they were scheduled to
confirmation. Nevertheless it deleted the award of testify. However, the violent demonstrations in the
moral damages on the ground that petitioners did not country were sensationalized in the U.S. media so
take the witness stand to testify on "their social petitioners were advised to refrain from returning to
humiliation, wounded feelings and anxiety, and that the Philippines at the time.
the breach of contract was not malicious or fraudulent."
Nevertheless, Atty. Raymund Armovit, brother of
We disagree. petitioner Dr. Armovit, took the witness stand as he
was with the petitioners from the time they checked in
In Air France vs. Carrascoso, Lopez vs. Pan American World up to the time of their ultimate departure. He was a
Airways, and Zulueta vs. Pan American World Airways, witness when the check-in officer rudely informed the

476
petitioners that their flight had already taken off, while
petitioner Dr. Armovit remonstrated that their tickets
reflected their flight time to be 10:30 A.M.; that in anger
and frustration, Dr. Armovit told the said check-in-
officer that he had to be accommodated that morning so
that he could attend to all his appointments in the U.S.;
that petitioner Jacqueline Armovit also complained
about not being able to report for work at the expiration
of her leave of absence; that while petitioner had to
accept private respondent's offer for hotel
accommodations at the Philippine Village Hotel so that
they could follow up and wait for their flight out of
Manila the following day, petitioners did not use their
meal coupons supplied because of the limitations
thereon so they had to spend for lunch, dinner, and
breakfast in the sum of P1,300.00 while waiting to be
flown out of Manila; that Dr. Armovit had to forego the
professional fees for the medical appointments he
missed due to his inability to take the January 17 flight;
that the petitioners were finally able to fly out of Manila
on January 18, 1982, but were assured of this flight only
on the very morning of that day, so that they
experienced anxiety until they were assured seats for
that flight.
No doubt Atty. Raymund Armovit's testimony
adequately and sufficiently established the serious
anxiety, wounded feelings and social humiliation that
petitioners suffered upon having been bumped off.
However, considering the circumstances of this case
whereby the private respondent attended to the plight
of the petitioners, taking care of their accommodations
while waiting and boarding them in the flight back to
the U.S. the following day, the Court finds that the
petitioners are entitled to moral damages in the amount
of P100,000.00 each.
By the same token to provide an example for the public
good, an award of exemplary damages is also proper.
The award of the appellate court is adequate.
Nevertheless, the deletion of the nominal damages by
the appellate court is well-taken since there is an award
of actual damages. Nominal damages cannot co-exist
with actual or compensatory damages.
WHEREFORE, the petition is GRANTED. The
questioned judgment of the Court of Appeals is hereby
modified such that private respondent shall pay the
following:
(a) actual damages in favor of Dr. Armovit in the sum
of P1,300.00 with interest at the legal rate from
January 17, 1982;
(b) moral damages at P100,000.00 and exemplary
damages and P100,000.00 in favor of Dr. Armovit;
(c) moral damages of P100,000.00 and exemplary
damages of P50,000.00 in favor of Mrs. Dora
Armovit;
(d) moral damages of P100,000.00 and exemplary
damages in the amount of P20,000.00 in favor of
Miss Jacqueline Armovit; and
477
(e) attorney's fees at 5% of the total awards under the
above paragraphs, plus the cost of suit.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea JJ.,
concur.
CATHAY PACIFIC AIRWAYS, LTD. vs.
SPOUSES VAZQUEZ, ET AL.
G.R. No. 150843, 14 March 2003, 447 SCRA 306
DAVIDE, JR., C.J p:
Is an involuntary upgrading of an airline passenger's
accommodation from one class to a more superior class
at no extra cost a breach of contract of carriage that
would entitle the passenger to an award of damages?
This is a novel question that has to be resolved in this
case.
The facts in this case, as found by the Court of Appeals
and adopted by petitioner Cathay Pacific Airways, Ltd.,
(hereinafter Cathay) are as follows:
Cathay is a common carrier engaged in the business of
transporting passengers and goods by air. Among the
many routes it services is the Manila-Hongkong-Manila
course. As part of its marketing strategy, Cathay
accords its frequent flyers membership in its Marco
Polo Club. The members enjoy several privileges, such
as priority for upgrading of booking without any extra
charge whenever an opportunity arises. Thus, a
frequent flyer booked in the Business Class has priority
for upgrading to First Class if the Business Class
Section is fully booked.
Respondents-spouses Dr. Daniel Earnshaw Vazquez
and Maria Luisa Madrigal Vazquez are frequent flyers
of Cathay and are Gold Card members of its Marco
Polo Club. On 24 September 1996, the Vazquezes,
together with their maid and two friends Pacita Cruz
and Josefina Vergel de Dios, went to Hongkong for
pleasure and business.
For their return flight to Manila on 28 September 1996,
they were booked on Cathay's Flight CX-905, with
departure time at 9:20 p.m. Two hours before their time
of departure, the Vazquezes and their companions
checked in their luggage at Cathay's check-in counter at
Kai Tak Airport and were given their respective
boarding passes, to wit, Business Class boarding passes
for the Vazquezes and their two friends, and Economy
Class for their maid. They then proceeded to the
Business Class passenger lounge.
When boarding time was announced, the Vazquezes
and their two friends went to Departure Gate No. 28,
which was designated for Business Class passengers.
Dr. Vazquez presented his boarding pass to the ground
stewardess, who in turn inserted it into an electronic
machine reader or computer at the gate. The ground
stewardess was assisted by a ground attendant by the
name of Clara Lai Han Chiu. When Ms. Chiu glanced at
the computer monitor, she saw a message that there
was a "seat change" from Business Class to First Class
for the Vazquezes.
Ms. Chiu approached Dr. Vazquez and told him that
the Vazquezes' accommodations were upgraded to First
Class. Dr. Vazquez refused the upgrade, reasoning that
it would not look nice for them as hosts to travel in First
Class and their guests, in the Business Class; and
moreover, they were going to discuss business matters
during the flight. He also told Ms. Chiu that she could
have other passengers instead transferred to the First
Class Section. Taken aback by the refusal for
upgrading, Ms. Chiu consulted her supervisor, who
told her to handle the situation and convince the
Vazquezes to accept the upgrading. Ms. Chiu informed
the latter that the Business Class was fully booked, and
that since they were Marco Polo Club members they
had the priority to be upgraded to the First Class. Dr.
Vazquez continued to refuse, so Ms. Chiu told them
that if they would not avail themselves of the privilege,
they would not be allowed to take the flight.
Eventually, after talking to his two friends, Dr. Vazquez
gave in. He and Mrs. Vazquez then proceeded to the
First Class Cabin.
Upon their return to Manila, the Vazquezes, in a letter
of 2 October 1996 addressed to Cathay's Country
Manager, demanded that they be indemnified in the
amount of P1million for the "humiliation and
embarrassment" caused by its employees. They also
demanded "a written apology from the management of
Cathay, preferably a responsible person with a rank of
no less than the Country Manager, as well as the
apology from Ms. Chiu" within fifteen days from
receipt of the letter.
In his reply of 14 October 1996, Mr. Larry Yuen, the
assistant to Cathay's Country Manager Argus Guy
Robson, informed the Vazquezes that Cathay would
investigate the incident and get back to them within a
week's time.
On 8 November 1996, after Cathay's failure to give
them any feedback within its self-imposed deadline, the
Vazquezes instituted before the Regional Trial Court of
Makati City an action for damages against Cathay,
praying for the payment to each of them the amounts of
P250,000 as temperate damages; P500,000 as moral
damages; P500,000 as exemplary or corrective damages;
and P250,000 as attorney's fees.
In their complaint, the Vazquezes alleged that when
they informed Ms. Chiu that they preferred to stay in
Business Class, Ms. Chiu "obstinately,
uncompromisingly and in a loud, discourteous and
harsh voice threatened" that they could not board and
leave with the flight unless they go to First Class, since
the Business Class was overbooked. Ms. Chiu's loud
and stringent shouting annoyed, embarrassed, and
humiliated them because the incident was witnessed by
all the other passengers waiting for boarding. They also
claimed that they were unjustifiably delayed to board
the plane, and when they were finally permitted to get
into the aircraft, the forward storage compartment was
already full. A flight stewardess instructed Dr. Vazquez
to put his roll-on luggage in the overhead storage
compartment. Because he was not assisted by any of the
crew in putting up his luggage, his bilateral carpal
tunnel syndrome was aggravated, causing him extreme
pain on his arm and wrist. The Vazquezes also averred
that they "belong to the uppermost and absolutely top
elite of both Philippine Society and the Philippine
financial community, [and that] they were among the
wealthiest persons in the Philippine[s]."
In its answer, Cathay alleged that it is a practice among
commercial airlines to upgrade passengers to the next
better class of accommodation, whenever an
opportunity arises, such as when a certain section is
fully booked. Priority in upgrading is given to its
frequent flyers, who are considered favored passengers
like the Vazquezes. Thus, when the Business Class
Section of Flight CX-905 was fully booked, Cathay's
computer sorted out the names of favored passengers
for involuntary upgrading to First Class. When Ms.
Chiu informed the Vazquezes that they were upgraded
to First Class, Dr. Vazquez refused. He then stood at the
entrance of the boarding apron, blocking the queue of
passengers from boarding the plane, which
inconvenienced other passengers. He shouted that it
was impossible for him and his wife to be upgraded
without his two friends who were traveling with them.
Because of Dr. Vazquez's outburst, Ms. Chiu thought of
upgrading the traveling companions of the Vazquezes.
But when she checked the computer, she learned that
the Vazquezes' companions did not have priority for
upgrading. She then tried to book the Vazquezes again
to their original seats. However, since the Business
Class Section was already fully booked, she politely
informed Dr. Vazquez of such fact and explained that
the upgrading was in recognition of their status as
Cathay's valued passengers. Finally, after talking to
their guests, the Vazquezes eventually decided to take
the First Class accommodation.
Cathay also asserted that its employees at the Hong
Kong airport acted in good faith in dealing with the
Vazquezes; none of them shouted, humiliated,
embarrassed, or committed any act of disrespect
against them (the Vazquezes). Assuming that there was
indeed a breach of contractual obligation, Cathay acted
in good faith, which negates any basis for their claim
for temperate, moral, and exemplary damages and
attorney's fees. Hence, it prayed for the dismissal of the
complaint and for payment of P100,000 for exemplary
damages and P300,000 as attorney's fees and litigation
expenses.
xxx xxx xxx
478
In its decision of 19 October 1998, the trial court found
for the Vazquezes and decreed as follows:
WHEREFORE, finding
preponderance of evidence to sustain
the instant complaint, judgment is
hereby rendered in favor of plaintiffs
Vazquez spouses and against
defendant Cathay Pacific Airways,
Ltd., ordering the latter to pay each
plaintiff the following:
a) Nominal damages in the amount
of P100,000.00 for each plaintiff;
b) Moral damages in the amount of
P2,000,000.00 for each plaintiff;
c) Exemplary damages in the
amount of P5,000,000.00 for each
plaintiff;
d) Attorney's fees and expenses of
litigation in the amount of
P1,000,000.00 for each plaintiff;
and
e) Costs of suit.
SO ORDERED.
According to the trial court, Cathay offers various
classes of seats from which passengers are allowed to
choose regardless of their reasons or motives, whether
it be due to budgetary constraints or whim. The choice
imposes a clear obligation on Cathay to transport the
passengers in the class chosen by them. The carrier
cannot, without exposing itself to liability, force a
passenger to involuntarily change his choice. The
upgrading of the Vazquezes' accommodation over and
above their vehement objections was due to the
overbooking of the Business Class. It was a pretext to
pack as many passengers as possible into the plane to
maximize Cathay's revenues. Cathay's actuations in this
case displayed deceit, gross negligence, and bad faith,
which entitled the Vazquezes to awards for damages.
On appeal by the petitioners, the Court of Appeals, in
its decision of 24 July 2001, deleted the award for
exemplary damages; and it reduced the awards for
moral and nominal damages for each of the Vazquezes
to P250,000 and P50,000, respectively, and the attorney's
fees and litigation expenses to P50,000 for both of them.
The Court of Appeals ratiocinated that by upgrading
the Vazquezes to First Class, Cathay novated the
contract of carriage without the former's consent. There
was a breach of contract not because Cathay
overbooked the Business Class Section of Flight CX-905
but because the latter pushed through with the
upgrading despite the objections of the Vazquezes.
However, the Court of Appeals was not convinced that
Ms. Chiu shouted at, or meant to be discourteous to, Dr.
Vazquez, although it might seemed that way to the
latter, who was a member of the elite in Philippine
479
society and was not therefore used to being harangued
by anybody. Ms. Chiu was a Hong Kong Chinese
whose fractured Chinese was difficult to understand
and whose manner of speaking might sound harsh or
shrill to Filipinos because of cultural differences. But
the Court of Appeals did not find her to have acted
with deliberate malice, deceit, gross negligence, or bad
faith. If at all, she was negligent in not offering the First
Class accommodations to other passengers. Neither can
the flight stewardess in the First Class Cabin be said to
have been in bad faith when she failed to assist Dr.
Vazquez in lifting his baggage into the overhead
storage bin. There is no proof that he asked for help and
was refused even after saying that he was suffering
from "bilateral carpal tunnel syndrome." Anent the
delay of Yuen in responding to the demand letter of the
Vazquezes, the Court of Appeals found it to have been
sufficiently explained.
The Vazquezes and Cathay separately filed motions for
a reconsideration of the decision, both of which were
denied by the Court of Appeals.
xxx xxx xxx
The key issues for our consideration are whether (1) by
upgrading the seat accommodation of the Vazquezes
from Business Class to First Class Cathay breached its
contract of carriage with the Vazquezes; (2) the
upgrading was tainted with fraud or bad faith; and (3)
the Vazquezes are entitled to damages.
We resolve the first issue in the affirmative.
A contract is a meeting of minds between two persons
whereby one agrees to give something or render some
service to another for a consideration. There is no
contract unless the following requisites concur: (1)
consent of the contracting parties; (2) an object certain
which is the subject of the contract; and (3) the cause of
the obligation which is established. Undoubtedly, a
contract of carriage existed between Cathay and the
Vazquezes. They voluntarily and freely gave their
consent to an agreement whose object was the
transportation of the Vazquezes from Manila to Hong
Kong and back to Manila, with seats in the Business
Class Section of the aircraft, and whose cause or
consideration was the fare paid by the Vazquezes to
Cathay.
The only problem is the legal effect of the upgrading of
the seat accommodation of the Vazquezes. Did it
constitute a breach of contract?
Breach of contract is defined as the "failure without
legal reason to comply with the terms of a contract." It
is also defined as the "[f]ailure, without legal excuse, to
perform any promise which forms the whole or part of
the contract."
In previous cases, the breach of contract of carriage
consisted in either the bumping off of a passenger with
confirmed reservation or the downgrading of a
passenger's seat accommodation from one class to a
lower class. In this case, what happened was the
reverse. The contract between the parties was for
Cathay to transport the Vazquezes to Manila on a
Business Class accommodation in Flight CX-905. After
checking-in their luggage at the Kai Tak Airport in
Hong Kong, the Vazquezes were given boarding cards
indicating their seat assignments in the Business Class
Section. However, during the boarding time, when the
Vazquezes presented their boarding passes, they were
informed that they had a seat change from Business
Class to First Class. It turned out that the Business Class
was overbooked in that there were more passengers
than the number of seats. Thus, the seat assignments of
the Vazquezes were given to waitlisted passengers, and
the Vazquezes, being members of the Marco Polo Club,
were upgraded from Business Class to First Class.
We note that in all their pleadings, the Vazquezes never
denied that they were members of Cathay's Marco Polo
Club. They knew that as members of the Club, they had
priority for upgrading of their seat accommodation at
no extra cost when an opportunity arises. But, just like
other privileges, such priority could be waived. The
Vazquezes should have been consulted first whether
they wanted to avail themselves of the privilege or
would consent to a change of seat accommodation
before their seat assignments were given to other
passengers. Normally, one would appreciate and accept
an upgrading, for it would mean a better
accommodation. But, whatever their reason was and
however odd it might be, the Vazquezes had every
right to decline the upgrade and insist on the Business
Class accommodation they had booked for and which
was designated in their boarding passes. They clearly
waived their priority or preference when they asked
that other passengers be given the upgrade. It should
not have been imposed on them over their vehement
objection. By insisting on the upgrade, Cathay breached
its contract of carriage with the Vazquezes.
We are not, however, convinced that the upgrading or
the breach of contract was attended by fraud or bad
faith. Thus, we resolve the second issue in the negative.
Bad faith and fraud are allegations of fact that demand
clear and convincing proof. They are serious
accusations that can be so conveniently and casually
invoked, and that is why they are never presumed.
They amount to mere slogans or mudslinging unless
convincingly substantiated by whoever is alleging
them.
Fraud has been defined to include an inducement
through insidious machination. Insidious machination
refers to a deceitful scheme or plot with an evil or
devious purpose. Deceit exists where the party, with
intent to deceive, conceals or omits to state material
facts and, by reason of such omission or concealment,
the other party was induced to give consent that would
not otherwise have been given.
Bad faith does not simply connote bad judgment or
negligence; it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a
breach of a known duty through some motive or
interest or ill will that partakes of the nature of fraud.
We find no persuasive proof of fraud or bad faith in
this case. The Vazquezes were not induced to agree to
the upgrading through insidious words or deceitful
machination or through willful concealment of material
facts. Upon boarding, Ms. Chiu told the Vazquezes that
their accommodations were upgraded to First Class in
view of their being Gold Card members of Cathay's
Marco Polo Club. She was honest in telling them that
their seats were already given to other passengers and
the Business Class Section was fully booked. Ms. Chiu
might have failed to consider the remedy of offering the
First Class seats to other passengers. But, we find no
bad faith in her failure to do so, even if that amounted
to an exercise of poor judgment.
Neither was the transfer of the Vazquezes effected for
some evil or devious purpose. As testified to by Mr.
Robson, the First Class Section is better than the
Business Class Section in terms of comfort, quality of
food, and service from the cabin crew; thus, the
difference in fare between the First Class and Business
Class at that time was $250. Needless to state, an
upgrading is for the better condition and, definitely, for
the benefit of the passenger.
We are not persuaded by the Vazquezes' argument that
the overbooking of the Business Class Section
constituted bad faith on the part of Cathay. Section 3 of
the Economic Regulation No. 7 of the Civil Aeronautics
Board, as amended, provides:
Sec 3. Scope. — This regulation
shall apply to every Philippine and
foreign air carrier with respect to its
operation of flights or portions of
flights originating from or
terminating at, or serving a point
within the territory of the Republic of
the Philippines insofar as it denies
boarding to a passenger on a flight, or
portion of a flight inside or outside
the Philippines, for which he holds
confirmed reserved space.
Furthermore, this Regulation is
designed to cover only honest
mistakes on the part of the carriers
and excludes deliberate and willful
acts of non-accommodation.
Provided, however, that overbooking
not exceeding 10% of the seating
capacity of the aircraft shall not be
considered as a deliberate and willful
act of non-accommodation.
480
It is clear from this section that an overbooking that
does not exceed ten percent is not considered deliberate
and therefore does not amount to bad faith. Here, while
there was admittedly an overbooking of the Business
Class, there was no evidence of overbooking of the
plane beyond ten percent, and no passenger was ever
bumped off or was refused to board the aircraft.
Now we come to the third issue on damages.
The Court of Appeals awarded each of the Vazquezes
moral damages in the amount of P250,000. Article 2220
of the Civil Code provides:
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 or in
bad faith.
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury. Although incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendant's wrongful act
or omission. Thus, case law establishes the following
requisites for the award of moral damages: (1) there
must be an injury clearly sustained by the claimant,
whether physical, mental or psychological; (2) there
must be a culpable act or omission factually established;
(3) the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant;
and (4) the award for damages is predicated on any of
the cases stated in Article 2219 of the Civil Code.
Moral damages predicated upon a breach of contract of
carriage may only be recoverable in instances where the
carrier is guilty of fraud or bad faith or where the
mishap resulted in the death of a passenger. Where in
breaching the contract of carriage the airline is not
shown to have acted fraudulently or in bad faith,
liability for damages is limited to the natural and
probable consequences of the breach of the obligation
which the parties had foreseen or could have
reasonably foreseen. In such a case the liability does not
include moral and exemplary damages.
In this case, we have ruled that the breach of contract of
carriage, which consisted in the involuntary upgrading
of the Vazquezes' seat accommodation, was not
attended by fraud or bad faith. The Court of Appeals'
award of moral damages has, therefore, no leg to stand
on.
The deletion of the award for exemplary damages by
the Court of Appeals is correct. It is a requisite in the
grant of exemplary damages that the act of the offender
481
must be accompanied by bad faith or done in wanton,
fraudulent or malevolent manner. Such requisite is
absent in this case. Moreover, to be entitled thereto the
claimant must first establish his right to moral,
temperate, or compensatory damages. Since the
Vazquezes are not entitled to any of these damages, the
award for exemplary damages has no legal basis. And
where the awards for moral and exemplary damages
are eliminated, so must the award for attorney's fees.
The most that can be adjudged in favor of the
Vazquezes for Cathay's breach of contract is an award
for nominal damages under Article 2221 of the Civil
Code, which reads as follows:
Article 2221 of the Civil Code provides:
Article 2221. Nominal damages
are adjudicated in order that a right
of the plaintiff, which has been
violated or invaded by the defendant,
may be vindicated or recognized, and
not for the purpose of indemnifying
the plaintiff for any loss suffered by
him.
Worth noting is the fact that in Cathay's Memorandum
filed with this Court, it prayed only for the deletion of
the award for moral damages. It deferred to the Court
of Appeals' discretion in awarding nominal damages;
thus:
As far as the award of nominal
damages is concerned, petitioner
respectfully defers to the Honorable
Court of Appeals' discretion. Aware
as it is that somehow, due to the
resistance of respondents-spouses to
the normally-appreciated gesture of
petitioner to upgrade their
accommodations, petitioner may
have disturbed the respondents-
spouses' wish to be with their
companions (who traveled to Hong
Kong with them) at the Business
Class on their flight to Manila.
Petitioner regrets that in its desire to
provide the respondents-spouses
with additional amenities for the one
and one-half (1 1/2) hour flight to
Manila, unintended tension ensued.
Nonetheless, considering, that the breach was intended
to give more benefit and advantage to the Vazquezes
by upgrading their Business Class accommodation to
First Class because of their valued status as Marco Polo
members, we reduce the award for nominal damages to
P5,000.
Before writing finis to this decision, we find it well-
worth to quote the apt observation of the Court of
Appeals regarding the awards adjudged by the trial
court:
We are not amused but alarmed at
the lower court's unbelievable
alacrity, bordering on the scandalous,
to award excessive amounts as
damages. In their complaint,
appellees asked for P1 million as
moral damages but the lower court
awarded P4 million; they asked for
P500,000.00 as exemplary damages
but the lower court cavalierly
awarded a whooping P10 million;
they asked for P250,000.00 as
attorney's fees but were awarded P2
million; they did not ask for nominal
damages but were awarded
P200,000.00. It is as if the lower court
went on a rampage, and why it acted
that way is beyond all tests of reason.
In fact the excessiveness of the total
award invites the suspicion that it
was the result of "prejudice or
corruption on the part of the trial
court."
The presiding judge of the lower court is enjoined to
hearken to the Supreme Court's admonition in Singson
vs. CA (282 SCRA 149 [1997]), where it said:
The well-entrenched principle is that
the grant of moral damages depends
upon the discretion of the court based
on the circumstances of each case.
This discretion is limited by the
principle that the amount awarded
should not be palpably and
scandalously excessive as to indicate
that it was the result of prejudice or
corruption on the part of the trial
court . . .
and in Alitalia Airways vs. CA (187 SCRA 763 [1990],
where it was held:
Nonetheless, we agree with the
injunction expressed by the Court of
Appeals that passengers must not
prey on international airlines for
damage awards, like "trophies in a
safari." After all neither the social
standing nor prestige of the
passenger should determine the
extent to which he would suffer
because of a wrong done, since the
dignity affronted in the individual is
a quality inherent in him and not
conferred by these social indicators.
We adopt as our own this observation of the Court of
Appeals.
WHEREFORE, the instant petition is hereby partly
GRANTED. The Decision of the Court of Appeals of 24
July 2001 in CA-G.R. CV No. 63339 is hereby
MODIFIED, and as modified, the awards for moral
damages and attorney's fees are set aside and deleted,
and the award for nominal damages is reduced to
P5,000.
No pronouncement on costs.
SO ORDERED.
Vitug, Carpio and Azcuna, JJ., concur.
Ynares-Santiago, J., is on leave.
5. LIQUIDATED DAMAGES
ARTICLE 2226. Liquidated damages are those agreed
upon by the parties to a contract, to be paid in case of
breach thereof.
ARTICLE 2227. Liquidated damages, whether
intended as an indemnity or a penalty, shall be
equitably reduced if they are iniquitous or
unconscionable.
ARTICLE 2228. When the breach of the contract
committed by the defendant is not the one
contemplated by the parties in agreeing upon the
liquidated damages, the law shall determine the
measure of damages, and not the stipulation.
ARTICLE 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.
COUNTRY BANKERS INSURANCE
CORPORATION, ET AL. vs.
COURT OF APPEALS, ET AL.
G.R. No. 85161, 9 September 1991, 201 SCRA 458
MEDIALDEA, J p:
Petitioners seek a review on certiorari of the decision of
the Court of Appeals in CA-G.R. CV No. 09504
"Enrique Sy and Country Bankers Insurance
Corporation v. Oscar Ventanilla Enterprises
Corporation" affirming in toto the decision of the
Regional Trial Court, Cabanatuan City, Branch XXV, to
wit:
"WHEREFORE, the complaint of the
plaintiff Enrique F. Sy is dismissed,
and on the counterclaim of the
defendant O. Ventanilla Enterprises
Corporation, judgment is hereby
rendered:
482
 '1. Declaring as lawful, the
cancellation and termination of
the Lease Agreement (Exh. A)
and the defendant's re-entry and
repossession of the Avenue,
Broadway and Capitol theaters
under lease on February 11, 1980;
'2. Declaring as lawful, the
forfeiture clause under
paragraph 12 of the said Lease
Agreement, and confirming the
forfeiture of the plaintiff's
remaining cash deposit of
P290,000.00 in favor of the
defendant thereunder, as of
February 11, 1980;
'3. Ordering the plaintiff to pay the
defendant the sum of
P289,534.78, representing arrears
in rentals, unremitted amounts
for amusement tax delinquency
and accrued interest thereon,
with further interest on said
amounts at the rate of 12% per
annum (per lease agreement)
from December 1, 1980 until the
same is fully paid;
'4. Ordering the plaintiff to pay the
defendant the amount of
P100,000.00, representing the
P10,000.00 portion of the
monthly lease rental which were
not deducted from the cash
deposit of the plaintiff from
February to November, 1980,
after the forfeiture of the said
cash deposit on February 11,
1980, with interest thereon at the
rate of 12% per annum on each
of the said monthly amounts of
P10,000.00 from the time the
same became due until it is paid;
'5. Ordering the plaintiff to pay the
defendant through the injunction
bond, the sum of P100,000.00,
representing the P10,000.00
monthly increase in rentals
which the defendant failed to
realize from February to
November 1980 resulting from
the injunction, with legal interest
thereon from the finality of this
decision until fully paid;
'6. Ordering the plaintiff to pay to
the defendant the sum
equivalent to ten per centum
(10%) of the above-mentioned
483
amounts of P289,534.78,
P100,000.00 and P100,000.00, as
and for attorney's fees; and
'7. Ordering the plaintiff to pay the
costs.' " (pp. 94-95, Rollo).
The antecedent facts of the case are as follows:
Respondent Oscar Ventanilla Enterprises Corporation
(OVEC), as lessor, and the petitioner Enrique F. Sy, as
lessee, entered into a lease agreement over the Avenue,
Broadway and Capitol Theaters and the land on which
they are situated in Cabanatuan City, including their
air-conditioning systems, projectors and accessories
needed for showing the films or motion pictures. The
term of the lease was for six (6) years commencing from
June 13, 1977 and ending June 12, 1983. After more than
two (2) years of operation of the Avenue, Broadway
and Capitol Theaters, the lessor OVEC made demands
for the repossession of the said leased properties in
view of the Sy's arrears in monthly rentals and non-
payment of amusement taxes. On August 8, 1979,
OVEC and Sy had a conference and by reason of Sy's
request for reconsideration of OVEC's demand for
repossession of the three (3) theaters, the former was
allowed to continue operating the leased premises upon
his conformity to certain conditions imposed by the
latter in a supplemental agreement dated August 13,
1979.
In pursuance of their latter agreement, Sy's arrears in
rental in the amount of P125,455.76 (as of July 31, 1979)
was reduced to P71,028.91 as of December 31, 1979.
However, the accrued amusement tax liability of the
three (3) theaters to the City Government of
Cabanatuan City had accumulated to P84,000.00
despite the fact that Sy had been deducting the amount
of P4,000.00 from his monthly rental with the obligation
to remit the said deductions to the city government.
Hence, letters of demand dated January 7, 1980 and
February 3, 1980 were sent to Sy demanding payment
of the arrears in rentals and amusement tax
delinquency. The latter demand was with warning that
OVEC will re-enter and repossess the Avenue,
Broadway and Capital Theaters on February 11, 1980 in
pursuance of the pertinent provisions of their lease
contract of June 11, 1977 and their supplemental letter-
agreement of August 13, 1979. But notwithstanding the
said demands and warnings Sy failed to pay the above-
mentioned amounts in full. Consequently, OVEC
padlocked the gates of the three theaters under lease
and took possession thereof in the morning of February
11, 1980 by posting its men around the premises of the
said movie houses and preventing the lessee's
employees from entering the same.
Sy, through his counsel, filed the present action for
reformation of the lease agreement, damages and
injunction late in the afternoon of the same day. And by
virtue of a restraining order dated February 12, 1980
followed by an order directing the issuance of a writ of
preliminary injunction issued in said case, Sy regained
possession and operation of the Avenue, Broadway and
Capital theaters.
xxx xxx xxx
The trial court arrived at the conclusions that Sy is not
entitled to the reformation of the lease agreement; that
the repossession of the leased premises by OVEC after
the cancellation and termination of the lease was in
accordance with the stipulation of the parties in the said
agreement and the law applicable thereto and that the
consequent forfeiture of Sy's cash deposit in favor of
OVEC was clearly agreed upon by them in the lease
agreement. The trial court further concluded that Sy
was not entitled to the writ of preliminary injunction
issued in his favor after the commencement of the
action and that the injunction bond filed by Sy is liable
for whatever damages OVEC may have suffered by
reason of the injunction.
xxx xxx xxx
From this decision of the trial court, Sy and CBISCO
appealed the decision in toto while OVEC appealed
insofar as the decision failed to hold the injunction
bond liable for all damages awarded by the trial court.
The respondent Court of Appeals found no ambiguity
in the provisions of the lease agreement. It held that the
provisions are fair and reasonable and therefore, should
be respected and enforced as the law between the
parties. It held that the cancellation or termination of
the agreement prior to its expiration period is justified
as it was brought about by Sy's own default in his
compliance with the terms of the agreement and not
"motivated by fraud or greed." It also affirmed the
award to OVEC of the amount of P100,000.00
chargeable against the injunction bond posted by
CBISCO, which was soundly and amply justified by the
trial court.
The respondent Court likewise found no merit in
OVEC's appeal and held that the trial court did not err
in not charging and holding the injunction bond posted
by Sy liable for all the awards as the undertaking of
CBISCO under the bond referred only to damages
which OVEC may suffer as a result of the injunction.
From this decision, CBISCO and Sy filed this instant
petition on the following grounds:
"A
"PRIVATE RESPONDENT SHOULD
NOT BE ALLOWED TO UNJUSTLY
ENRICH OR BE BENEFITED AT
THE EXPENSE OF THE
PETITIONERS.
"B
"RESPONDENT COURT OF
APPEALS COMMITTED SERIOUS
ERROR OF LAW AND GRAVE
ABUSE OF DISCRETION IN NOT
SETTING OFF THE P100,000.00
SUPPOSED DAMAGE RESULTING
FROM THE INJUNCTION AGAINST
THE P290,000.00 REMAINING
CASH DEPOSIT OF PETITIONER
ENRIQUE SY.
"C
"RESPONDENT COURT OF
APPEALS FURTHER COMMITTED
SERIOUS ERROR OF LAW AND
GRAVE ABUSE OF DISCRETION IN
NOT DISMISSING PRIVATE
RESPONDENT'S COUNTERCLAIM
FOR FAILURE TO PAY THE
NECESSARY DOCKET FEE." (p. 10,
Rollo)
We find no merit in petitioners' argument that the
forfeiture clause stipulated in the lease agreement
would unjustly enrich the respondent OVEC at the
expense of Sy and CBISCO - contrary to law, morals,
good customs, public order or public policy. A
provision which calls for the forfeiture of the remaining
deposit still in the possession of the lessor, without
prejudice to any other obligation still owing, in the
event of the termination or cancellation of the
agreement by reason of the lessee's violation of any of
the terms and conditions of the agreement is a penal
clause that may be validly entered into. A penal clause
is an accessory obligation which the parties attach to a
principal obligation for the purpose of insuring the
performance thereof by imposing on the debtor a
special prestation (generally consisting in the payment
of a sum of money) in case the obligation is not fulfilled
or is irregularly or inadequately fulfilled. (Eduardo P.
Caguioa, Comments and Cases on Civil Law, Vol. IV,
First Edition, pp. 199-200) As a general rule, in
obligations with a penal clause, the penalty shall
substitute the indemnity for damages and the payment
of interests in case of non-compliance. This is
specifically provided for in Article 1226, par. 1, New
Civil Code. In such case, proof of actual damages
suffered by the creditor is not necessary in order that
the penalty may be demanded (Article 1228, New Civil
Code). However, there are exceptions to the rule that
the penalty shall substitute the indemnity for damages
and the payment of interests in case of non-compliance
with the principal obligation. They are first, when there
is a stipulation to the contrary; second, when the
obligor is sued for refusal to pay the agreed penalty;
and third, when the obligor is guilty of fraud (Article
1226, par. 1, New Civil Code). It is evident that in all
said cases, the purpose of the penalty is to punish the
obligor. Therefore, the obligee can recover from the
obligor not only the penalty but also the damages
resulting from the non-fulfillment or defective
performance of the principal obligation.
In the case at bar, inasmuch as the forfeiture clause
provides that the deposit shall be deemed forfeited,
484
without prejudice to any other obligation still owing by
the lessee to the lessor, the penalty cannot substitute for
the P100,000.00 supposed damage resulting from the
issuance of the injunction against the P290,000.00
remaining cash deposit. This supposed damage
suffered by OVEC was the alleged P10,000.00 a month
increase in rental from P50,000.00 to P60,000.00), which
OVEC failed to realize for ten months from February to
November, 1980 in the total sum of P100,000.00. This
opportunity cost which was duly proven before the
trial court, was correctly made chargeable by the said
court against the injunction bond posted by CBISCO.
The undertaking assumed by CBISCO under subject
injunction refers to "all such damages as such party
may sustain by reason of the injunction if the Court
should finally decide that the Plaintiff was/were not
entitled thereto." (Rollo, p. 101) Thus, the respondent
Court correctly sustained the trial court in holding that
the bond shall and may answer only for damages which
OVEC may suffer as a result of the injunction. The
arrears in rental, the unmeritted amounts of the
amusement tax delinquency, the amount of P100,000.00
(P10,000.00 portions of each monthly rental which were
not deducted from plaintiff's cash deposit from
February to November, 1980 after the forfeiture of said
cash deposit on February 11, 1980) and attorney's fees
which were all charged against Sy were correctly
considered by the respondent Court as damages which
OVEC sustained not as a result of the injunction.
xxx xxx xxx
ACCORDINGLY, finding no merit in the grounds
relied upon by petitioners in their petition, the same is
hereby DENIED and the decision dated June 15, 1988
and the resolution dated September 21, 1988, both of
the respondent Court of Appeals are AFFIRMED.
SO ORDERED.
Narvasa, Cruz and Griño-Aquino, JJ., concur.
SPOUSES SUATENGCO vs. REYES
G.R. No. 162729, 17 December 2008
LEONARDO-DE CASTRO, J p:
This resolves the petition for review on certiorari
seeking the modification of the Decision dated October
29, 2003 and the Resolution dated March 10, 2004 of the
Court of Appeals (CA) in CA-G.R. CV No. 53185. The
assailed decision affirmed with modification the
Decision of the Regional Trial Court (RTC) of
Marinduque, Branch 30 in Civil Case No. 95-4 in an
action for collection of a sum of money with damages
commenced by herein respondent, Carmencita O. Reyes
against herein petitioners, spouses Soledad Leonor
Peña Suatengco (also known as Sylvia Peña Suatengco)
and Antonio Esteban Suatengco.
The essential facts of the case, as recounted by the trial
court, are as follows:
485
This is an action for Sum of Money with Damages filed
by Carmencita O. Reyes against defendants
[petitioners] Spouses Soledad Leonor Peña and Antonio
Esteban Suatengco, wherein plaintiff (respondent)
claimed that sometime in the first quarter of 1994,
defendant Sylvia (Soledad) approached her for the
purpose of borrowing a sum of money in order to pay
her obligation to Philippine Phosphate Fertilizer
Corporation (Philphos for brevity). On May 31, 1994,
plaintiff paid Philphos the amount of P1,336,313.00 and
by reason thereof defendants Spouses Sylvia (Soledad)
and Antonio executed on June 24, 1994 a Promissory
Note binding themselves jointly and severally to pay
plaintiff the said amount in 31 monthly installments
beginning June 30, 1994. Of the amount, however, only
one (1) payment in the amount of P15,000.00 on July 27,
1994 have been made by defendants. That pursuant to a
specific clause in the Promissory Note, defendants have
unequivocally waived the necessity of demand to be
made upon them to pay as well as a Notice of Dishonor
and presentation with acceleration clause. As of March
31, 1995 defendants owe plaintiff P1,321,313.00
exclusive of interest, other charges which is already due
and demandable but remains unpaid, hence this
collection suit with prayer for moral damages and
attorney's fees.
A perusal of the record showed that notwithstanding
the leniency graciously observed by this court in giving
defendants several extensions of time to file their
answer with responsive pleading, they failed to do the
same thus, upon motion of plaintiff's counsel,
defendants were declared as in default on October 27,
1995 and the ex-parte reception of plaintiff's evidence
was delegated to the Clerk of Court.
xxx xxx xxx
On November 29, 1995, the lower court rendered its
decision, the dispositive portion of which reads as
follows:
WHEREFORE, judgment is hereby
rendered in favor of plaintiff and
against defendants ordering
defendants:
a) To pay plaintiff actual damages
in the amount of P1,321,313.00
plus interest at 12% per annum
from May 31, 1994 representing
the total outstanding balance of
defendants' indebtedness to
plaintiff by virtue of the
Promissory Note dated June 24,
1994.
b) To pay plaintiff moral damages
in the amount of P1,000,000.00;
c) To pay plaintiff attorney's fees in
the amount of 20% of the sum
collected; and
 d) To pay costs of suit.
SO ORDERED.
In their appeal to the CA, petitioners did not question
the amount of the judgment debt for which they were
held liable but limited the issue to the award of
attorney's fees.
On October 29, 2003, the CA promulgated a decision
affirming with modification the trial court's decision. It
upheld the award of attorney's fees equivalent to 20%
of the balance of petitioners' obligation and modified
the decision of the trial court by lowering the award of
moral damages from One Million Pesos (P1,000,000.00)
to Two Hundred Thousand Pesos (P200,000.00).
Dispositively, the decision reads:
xxx xxx xxx
Aggrieved, petitioners elevated the case to this Court
via a petition for review on certiorari under Rule 45 of
the Rules of Court, submitting thusly —
1. The Court of Appeals acted with grave abuse of
discretion and committed a mistake of law in
awarding 20% attorney's fees contrary to the 5% as
stipulated in the promissory note, Exhibit "B".
2. The Court of Appeals acted with grave abuse of
discretion and committed a mistake of law in not
reducing the award of the 12% penalty interest.
Clearly from the foregoing formulation of the issues in
the present petition, petitioners do not dispute the
amount of their indebtedness. They only seek a
modification of the decision of the CA insofar as it
upheld the RTC's award of attorney's fees equivalent to
20% of their total indebtedness/obligation and the 12%
per annum interest of the said obligation.
In support of their contention that the award of
attorney's fees was illegal or erroneous, petitioners
point to the unqualified rate of 5% stipulated in the
promissory note as the "stipulated amount" which was
way lower than the 20% as awarded by the RTC.
Petitioners cited the case of Chua v. Court of Appeals
where the Court ruled that is not the province of the
court to alter a contract by construction or to make a
new contract for the parties; its duty is confined to the
interpretation of the one which they have made for
themselves, without regard to its wisdom or folly, as
the court cannot supply material stipulations or read
into contract words which it does not contain. The
testimony of Atty. Edmundo O. Reyes that the
attorney's fees should be 20% of the outstanding
balance cannot prevail over the 5% stipulated in the
promissory note. Citing the case of Bañas v. Asia Pacific
Finance Corporation, petitioners maintained that oral
evidence cannot prevail over the written agreement of
the parties.
On the other hand, respondent contend that petitioners
have already waived their rights to question the award
for attorney's fees because in their Appellant's Brief
filed before the CA, they stated that the stipulated
attorney's fees was 20% (not 5%) of the total balance of
the outstanding indebtedness. Respondent adds that
despite such stipulation, said attorney's fees are subject
to judicial control. According to respondent it was not
surprising for the CA to focus on the issue of
reasonableness of the said attorney's fees because
petitioners' line of argument was focused on the same.
The petition is partly meritorious.
The fifth paragraph of the Promissory Note executed by
petitioners in favor of respondent undeniably carried a
stipulation for attorney's fees and interest in case of the
latter's default in the payment of any installment due. It
specifically provided that:
Failure on the part of Sylvia and/or Antonio Suatengco
to pay any installment due will render the entire
unpaid balance immediately, due and demandable and
Cong. Reyes becomes entitled not only for the unpaid
balance but also for 12% interest per annum of the
outstanding balance of P1,336,313.00 from May 31, 1994
until fully paid plus attorney's fees equivalent to 5% of
the total outstanding indebtedness.
Strictly speaking, the attorney's fees herein litigated are
in the nature of liquidated damages and not the
attorney's fees recoverable as between attorney and
client enunciated and regulated by the Rules of Court.
Liquidated damages are those agreed upon by the
parties to a contract to be paid in case of breach thereof.
The stipulation on attorney's fees contained in the said
Promissory Note constitutes what is known as a penal
clause. A penalty clause, expressly recognized by law,
is an accessory undertaking to assume greater liability
on the part of the obligor in case of breach of an
obligation. It functions to strengthen the coercive force
of obligation and to provide, in effect, for what could be
the liquidated damages resulting from such a breach.
The obligor would then be bound to pay the stipulated
indemnity without the necessity of proof on the
existence and on the measure of damages caused by the
breach. It is well-settled that so long as such stipulation
does not contravene law, morals, or public order, it is
strictly binding upon the obligor. The attorney's fees so
provided are awarded in favor of the litigant, not his
counsel.
In this case, there is a contractual stipulation in the
Promissory Note that in case of petitioners' default on
the terms and conditions of the said Promissory Note
by failing to pay any installment due, then this will
render the entire balance of the obligation immediately
due and payable. The total obligation of petitioners
amounted to P1,321,313.00 (P1,336,313.00 less
P15,000.00) plus the 12% interest per annum of the said
balance, as well as attorney's fees equivalent to 5% of
the total outstanding indebtedness. The Promissory
486
Note was signed by both parties voluntarily, thus the
stipulation therein has the force of law between the
parties and should be complied with by them in good
faith.
The RTC and CA, in awarding attorney's fees
equivalent to 20% of petitioners' total obligation,
disregarded the stipulation expressly agreed upon in
the Promissory Note and instead increased the award
of attorney's fees by giving weight and value to the
testimony of prosecution witness Atty. Reyes. In
agreeing to the reasonableness of the attorney's fees, the
CA erroneously took into account the time spent, the
extent of the services rendered, as well as the
professional standing of the lawyer. Oral evidence
certainly cannot prevail over the written agreements of
the parties. The courts need only to rely on the faces of
the written contracts to determine their true intention
on the principle that when the parties have reduced
their agreements in writing, it is presumed that they
have made the writings the only repositories and
memorials of their true agreement.
Moreover, it is undeniable from the evidence submitted
by respondent herself to the trial court that the
agreement of the parties with respect to attorney's fees
is only 5% of the total obligation and the trial court
granted the 20% rate based on the testimony of
respondent's counsel who opined that the same is the
reasonable amount of attorney's fees, despite the
unequivocal agreement of the parties. Even granting
that petitioners may have erroneously stated that the
stipulated attorney's fees is 20% in their appellants'
brief before the CA, they have nonetheless squarely
raised the matter of the lower rate of attorney's fees
agreed upon by the parties in the promissory note
before that court in their motion for reconsideration. In
our mind, there was essentially no change in
petitioners' theory of the case before the CA since in
their appellants' brief and their motion for
reconsideration, their main contention remains the
same: that the attorney's fees awarded by the trial court
and affirmed by the CA were unwarranted and
contrary to law. Neither can we give credence to
respondent's assertion that the 5% attorney's fees
agreed upon in the promissory note were intended only
to be the minimum rate as the promissory note never
mentioned a minimum.
In sum, we find it improper for both the RTC and the
CA to increase the award of attorney's fees despite the
express stipulation contained in the said Promissory
Note which we deem to be proper under these
circumstances, since it is not intended to be
compensation for respondent's counsel but was rather
in the nature of a penalty or liquidated damages.
On the matter of interest, we affirm the amount of
interest awarded by the two courts below, there being a
written stipulation as to its rate. In Eastern Shipping
Lines, Inc. v. Court of Appeals, we laid down the
following guidelines on the imposition of legal interest:
487
xxx xxx xxx
The stipulated interest in this case is 12% per annum.
As of July 1994, the total indebtedness of petitioners
amounted to P1,321,313.00. From then on, the
P1,321,313.00 should have earned the stipulated interest
of 12% per annum plus attorney's fees equivalent to 5%
of the total outstanding indebtedness. However, once
the judgment becomes final and executory and the
amount adjudged is still not satisfied, legal interest at
the rate of 12% applies until full payment. The rate of
12% per annum is proper because the interim period
from the finality of judgment, awarding a monetary
claim and until payment thereof, is deemed to be
equivalent to a forbearance of credit. The actual base for
the computation of this 12% interest is the amount due
upon finality of this decision.
HEREFORE, the Decision dated October 29, 2003 of the
Court of Appeals is hereby MODIFIED in that the
amount of attorney's fees is reduced to five percent
(5%) of the total balance of the outstanding
indebtedness but the said Decision is AFFIRMED in all
other respects.
No costs.
SO ORDERED.
Puno, C.J., Carpio, Chico-Nazario * and Velasco, Jr., **
JJ., concur.
6. EXEMPLARY DAMAGES
ARTICLE 2230. In criminal offenses, exemplary
damages as a part of the civil liability may be
imposed when the crime was committed with one or
more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to
the offended party.
ARTICLE 2231. In quasi-delicts, exemplary damages
may be granted if the defendant acted with gross
negligence.
ARTICLE 2232. In contracts and quasi-contracts, the
court may award exemplary damages if the defendant
acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner.
ARTICLE 2233. Exemplary damages cannot be
recovered as a matter of right; the court will decide
whether or not they should be adjudicated.
ARTICLE 2234. While the amount of the exemplary
damages need not be proved, the plaintiff must show
that he is entitled to moral, temperate or
compensatory damages before the court may consider
the question of whether or not exemplary damages
should be awarded. In case liquidated damages have
been agreed upon, although no proof of loss is
necessary in order that such liquidated damages may
be recovered, nevertheless, before the court may
consider the question of granting exemplary in
addition to the liquidated damages, the plaintiff must
show that he would be entitled to moral, temperate or
compensatory damages were it not for the stipulation
for liquidated damages.
ARTICLE 2235. A stipulation whereby exemplary
damages are renounced in advance shall be null and
void.
OCTOT vs. YBAÑEZ, ET AL.
G.R. No. L-48643, 18 January 1982, 111 SCRA 79
TEEHANKEE, J p:
Petitioner Diosdado Octot sought in this action of
mandamus his reinstatement in the government service
as Security Guard in Regional Health Office No. VII,
Cebu City from which he was summarily dismissed
"for being notoriously undesirable."
It appears that petitioner was employed as Security
Guard since 1970 and at the time of his separation from
the service was receiving a salary of P4,632 per annum,
plus P50.00 per month as cost of living allowance. On
October 1, 1975, petitioner was summarily dismissed
pursuant to P.D. No. 6 and LOI Nos. 14 and 14-A
directing heads of departments and agencies of the
government to weed out undesirable government
officials and employees, specifically those who were
facing charges or were notoriously undesirable on
ground of dishonesty, incompetence or other kinds of
misconduct defined in the Civil Service Law. Petitioner
had been convicted by the Court of First Instance of
Cebu of the crime of libel, but his appeal therefrom was
pending in the Court of Appeals.
Believing that his dismissal was illegal, petitioner
continued reporting for work the whole month of
October, 1975 but respondent Regional Director refused
to order the release of his salary for the period and
instead ordered that his name be deleted from the office
payroll.
In due time, petitioner was acquitted of the libel case by
the Court of Appeals. On March 10, 1977, one Mr.
Alfredo Imbong wrote to the Undersecretary of Justice
seeking assistance to reinstate petitioner to his former
position which letter was forwarded by the
Undersecretary of Justice to the Secretary of Health on
March 22, 1977. When the letter-request was referred by
the Secretary of Health to the Regional Health Office for
comment, Dr. Felicito Aniceto, Officer-in-Charge of the
same regional office favorably recommended
petitioner's reinstatement, not only because of
petitioner's acquittal in the criminal case but also
because of his satisfactory performance rating.
Petitioner's papers were likewise favorably acted upon
by the Presidential Executive Assistant but in returning
the papers to the Secretary of Health, attention was
invited to the provision of LOI No. 647, dated
December 27, 1977.
The papers were then forwarded to herein petitioner
informing him that his request for reinstatement may
now be given due course.
When petitioner failed to appear, petitioner was
personally furnished sometime on May, 1978 by
Personnel Officer Ramon R. Encarnacion with the
necessary papers to be filled up to support his new
appointment. This notwithstanding, petitioner again
sent a letter, dated June 6, 1978, to respondent Secretary
of Health, reiterating his request for reinstatement and
demanding back salaries from the date of his dismissal
from the service, furnishing the Regional Health
Director a copy thereof, who upon receipt of his copy,
contacted petitioner instructing him to come so that the
necessary papers for his new appointment could be
prepared. Again, petitioner did not appear, and instead
filed the instant petition for mandamus wherein he
prays that respondents be ordered (1) to reinstate him
to his former position (2) to pay his back salary, as well
as the cost of living allowance of P50.00 a month from
the date of his alleged dismissal (3) to grant him
compensatory, exemplary and moral damages (4) to
pay his attorney's fees and cost of the suit.
Since petitioner's right to reinstatement was not
effectively disputed, for his reinstatement had been
authorized by the Office of the President of the
Philippines, (although the Solicitor General in his
comment prayed for denial of the petition) this Court in
a resolution dated January 29, 1979 directed
respondents public officials to immediately reinstate
petitioner to his former position. In compliance
therewith, petitioner was reappointed and his
appointment duly attested by the Civil Service
Commission on May 23, 1979. Petitioner reported for
duty on June 11, 1979.
The remaining question to be resolved under the
Court's aforesaid Resolution is whether petitioner is
entitled to his claim for backwages from the date of his
dismissal in 1975 up to the date of reinstatement and
damages. In the absence of proof that respondent
Regional Director acted in bad faith and with grave
abuse of discretion, petitioner is not entitled to
backwages and consequently cannot claim for damages.
In the case at bar, the record manifests that respondents
officials were not motivated by ill will or personal
malice in dismissing petitioner but only by their desire
to comply with the mandates of Presidential Decree No.
6. Accordingly, when petitioner was acquitted by the
Court of Appeals, and made a request for his
reinstatement, respondents readily showed their
willingness to take him back and recommended to the
authorities concerned his reinstatement. Moreover, the
Office of the President of the Philippines, in approving
the reinstatement of petitioner, specifically invited
attention to the provisions of LOI No. 647 which does
488
not authorize payment of backwages of reinstated
employees.
The Court likewise denies petitioner's claim for moral
damages, because as pointed out by the Solicitor
General, if there was any delay in his reinstatement, it
was attributed to his own fault and negligence. After
his reinstatement was authorized by the Office of the
President, respondents had promptly communicated
with him, directing him to report to the Regional Office
and accomplish the necessary papers for his
reinstatement, but he delayed doing so, as above stated.
It is clear that since the separation of petitioner from the
government service had not been shown to be in bad
faith, an award for damages under the circumstances
would not be just and proper. Neither is it among the
cases mentioned in Articles 2219 and 2220 of the Civil
Code wherein moral damages may be recovered.
Exemplary damages are not generally recoverable in a
special civil action for mandamus unless the defendant
patently acted with vindictiveness or wantonness and
not in the exercise of honest judgment. The claim for
exemplary damages must presuppose the existence of
the circumstances enumerated in Articles 2231 and 2232
of the Civil Code.
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. Such damages are required by
public policy, for wanton acts must be suppressed.
They are an antidote so that the poison of wickedness
may not run through the body politic.
Thus, our jurisprudence sets certain conditions when
exemplary damages may be awarded, as follows:
First: They may be imposed by way of example or
correction only in addition, among others, to
compensatory damages, and cannot be recovered as a
matter of right, their determination depending upon
the amount of compensatory damages that may be
awarded to the claimant.
Second: The claimant must first establish his right to
moral, temperate, liquidate or compensatory damages.
Third: The wrongful act must be accompanied by bad
faith, and the award would be allowed only if the guilty
party acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner.
ACCORDINGLY, considering that petitioner has
already been reinstated to his former position since
1979 pursuant to the Court's Resolution of January 29,
1979, the petition for mandamus for his reinstatement is
now moot. Petitioner's claim for backwages and
damages is hereby denied. No costs.
Makasiar, Fernandez, Guerrero, Melencio-Herrera and
Plana, JJ., concur
489
DE LEON, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. L-31931, 31 August 1988, 165 SCRA 166
PARAS, J p:
This is an appeal by certiorari from the decision * of the
Court of Appeals (Sixth Division) in C.A., G.R. No.
40201-R promulgated on February 21, 1970 affirming
the judgment ** of the Court of First Instance of
Bulacan, with modification of the amount of moral and
exemplary damages from P100,000.00 to P60,000.00 and
the amount of attorney's fees from P10,000.00 to
P5,000.00 the dispositive portion of which appellate
court's decision reads as follows:
"WHEREFORE, the decision
appealed from is hereby modified as
above indicated respecting the award
of moral and exemplary damages as
well as attorney's fees. The rest are
hereby affirmed with costs against
plaintiffs-appellants." (pp. 6-7,
Decision of the Court of Appeals; pp.
61-62, Rollo)
The facts of the case as drawn by respondent court from
the evidence on record are quoted as follows:
"The third-party defendants spouses Juan Briones and
Magdalena Bernardo were the former registered
owners of the fishpond situated at San Roque,
Paombong, Bulacan which was covered by Transfer
Certificate of Title No. 28296 (Exhibit 2). This fishpond
was the subject of a deed of mortgage executed by the
spouses Briones on January 22, 1954, in favor of
Hermogenes Tantoco involving the consideration of
P20,000.00 (Exh. 2), which amount was later assigned
by the mortgagee to his father herein defendant and
third-party plaintiff Dr. Cornelio S. Tantoco (Exh. 10).
Apart from this first mortgage, the spouses Briones
likewise executed a deed of second mortgage for
P68,824.00 with 10% interest per annum in favor of
Cornelio S. Tantoco dated May 26, 1959 (Exh. 1). Both
mortgages were duly registered in the Office of the
Register of Deeds of Bulacan and duly annotated at the
back of Transfer Certificate of Title No. 28296 (Exh. 2) of
the Briones. While these two mortgages were still
subsisting the Briones spouses sold the fishpond, which
is the subject matter of said two mortgages, to plaintiff
spouses Fortunato de Leon and Juana F. Gonzales de
Leon in the amount of P120,000.00 (Exh 5). Of the
amount of P120,000.00, the Briones spouses actually
received only the amount of P31,000.00 on June 2, 1959,
as the amount of P89,000.00 was withheld by the
plaintiff de Leon who assumed to answer the mortgage
indebtedness of the Briones to the Tantocos (Exhs. 3, 3-
a, 3-a-1 to 3-b). After the sale plaintiffs de Leon satisfied
the mortgage loan of P20,000.00 including 10% interest
per annum to Hermogenes Tantoco who then
accordingly executed a deed of discharge of mortgage
(Exhs. Z & Z-l ), but the mortgage in favor of Cornelio
S. Tantoco in the amount of P68,824 was not satisfied.
On February 5, 1962 plaintiffs made payment of
P29,382.50 to the defendant Cornelio Tantoco."
(Decision of the Court of Appeals, pp. 2-3).
In his letter to private respondent Cornelio Tantoco
dated February 5, 1962, petitioner Fortunato de Leon
made it clear that he was tendering the sum of
P29,382.50, represented by PNB Cashier's Check No.
119874 in full discharge of the legitimate obligation of
his clients, the spouses Juan Briones and Magdalena
Bernardo. He requested acknowledgment of the receipt
of his letter and the execution of the necessary
document (Exhibits, p. 103). Through counsel private
respondent, trying to set the records straight for
petitioners, made the clarification that the principal
obligation of the Briones as of May 25, 1959 was
P68,824.00 and on January 26, 1962 when a letter of
demand was sent to them their total obligation
including the agreed interest amounted to P88,888.98.
Hence the above mentioned PNB check will be held in
abeyance pending remittance of the total obligation
after which the necessary document will be executed
(Exhibits, p. 105).
On April 5, 1962 Juan Briones executed an affidavit
denying ever having hired petitioner Fortunato de Leon
as counsel nor having authorized petitioner to pay any
obligation of his to private respondent for as a matter of
fact all obligations he had with private respondent had
been assumed by petitioner in a document executed by
petitioner himself in his own handwriting (Exhibits p.
108).
On May 8, 1962 the spouses Fortunato de Leon and
Juana F. de Leon petitioners herein filed a complaint
with the Court of First Instance of Bulacan against
defendant Cornelio S. Tantoco, respondent herein, Civil
Case No. 2554, for discharge of mortgage (Record on
Appeal, p. 4). On May 31, 1962 defendant filed his
answer with counterclaim and third party complaint
against the Briones spouses with petition for leave to
file third party complaint (Record on Appeal, p. 7). He
alleged by way of special and affirmative defenses,
among others, that the true and real amount of
obligation of the Briones spouses is the sum of
P68,824.00, Philippine currency, with 10% interest
secured by a second mortgage in favor of defendant,
executed and signed by the Briones spouses on May 26,
1959, which deed of second mortgage was duly
registered in the Office of the Register of Deeds of
Malolos, Bulacan on May 27, 1959 and properly
annotated at the back of Transfer Certificate of Title No.
28296 issued in the names of Juan Briones and
Magdalena Bernardo; that the amount of P29,382.50
sent by plaintiff as alleged counsel of the spouses Juan
Briones and Magdalena Bernardo was accepted by the
said defendant as part payment or partial
extinguishment of the mortgage loan of P68,824.00 with
10% interest thereon per annum from May 22, 1959, and
plaintiffs have been informed of the tenor of said
acceptance and application thereof as partial payment
of the mortgage obligation in question; and, that
defendant did not accede to the demand of the plaintiff
to have the mortgage lien on the property in question
cancelled or discharged because the full amount of the
mortgage debt of P68,824.00 plus the 10% interest
thereon from May 22, 1959 has not yet been fully paid
either by the plaintiffs or by the spouses Juan Briones
and Magdalena Bernardo. Defendant prayed under the
counterclaim that plaintiffs be ordered to pay
defendant the following amounts:
xxx xxx xxx
On May 16, 1967 the trial court rendered its decision on
the case (Record on Appeal, p. 74) the dispositive
portion of which reads as follows:.
"WHEREFORE, judgment is hereby
rendered ordering: the dismissal of
the complaint; payment by its
plaintiffs to the defendant-Third-
party plaintiff by way of
counterclaim the sum of P64,921.60
with interest thereon at 10% per
annum from February 5, 1962 until
fully paid; payment by plaintiff to
defendant the sum of P100,000.00 as
moral and exemplary damages, and
the further sum of P10,000.00 as
attorney's fees; payment of costs of
plaintiff."
On appeal respondent Court affirmed the judgment of
the trial court with modification respecting the award
of moral and exemplary damages as well as attorney's
fees. Petitioner spouses filed on March 7, 1970 their
motion for reconsideration of the decision of
respondent court which motion was denied on April 20,
1970. On April 23, 1979 petitioners filed their motion for
leave to file a second motion for reconsideration.
xxx xxx xxx
In accordance with the Resolution of the Court dated
June 8, 1970 (Rollo, p. 75) the sole issue that has to be
resolved by the Court is the question of whether or not
the award of P60,000.00 in the concept of moral and
exemplary damages is proper.
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and
similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendant's wrongful act
or omission (People v. Baylon, 129 SCRA 625 [1984];
Bagumbayan Corporation v. Intermediate Appellate Court,
132 SCRA 441 [1984]; Guita v. Court of Appeals, 139
SCRA 576 [1985]); Prudenciado v. Alliance Transport
System, Inc., 148 SCRA 440 [1987]). On the other hand,
jurisprudence sets certain conditions when exemplary
damages may be awarded, to wit: (1 ) They may be
490
imposed by way of example or correction only in
addition, among others, to compensatory damages and
cannot be recovered as a matter of right, their
determination depending upon the amount of
compensatory damages that may be awarded to the
claimant; (2) the claimant must first establish his right
to moral, temperate, liquidated or compensatory
damages; and (3) the wrongful act must be
accompanied by bad faith, and the award would be
allowed only if the guilty party acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner
(Octot v. Ybañez, 111 SCRA 79 [1982]); Sweet Lines, Inc.,
v. Court of Appeals, 121 SCRA 769 [1983]); Dee Hua Liong
Electrical Equipment Corporation v. Reyes, 145 SCRA 713
[1985]); Tan Kapoc v. Masa, 134 SCRA 231[1985]). It may
be awarded for breach of contract or quasi-contract as
when a telegraph company personnel transmitted the
wrong telegram (Radio Communication of the Philippines,
Inc. v. Court of Appeals, 103 SCRA 359 [1981] but it is not
recoverable in the absence of gross negligence
(Bagumbayan Corp. v. Intermediate Appellate Court, 132
SCRA 441 [1984]).
Respondent Court found malice in petitioners' refusal
to satisfy respondent Tantoco's lawful claim and in
their subsequent filing of the present case against
respondent, and took into consideration the worries
and mental anxiety of respondent as a result thereof. In
the words of respondent court:
"The evidence shows that plaintiff-
appellants' refusal to satisfy
appellee's lawful claims clearly
amounted to malice on their part
when they filed the present case
resulting as it were in worries and
mental anxiety of the defendant
Tantoco who was dragged to court to
litigate this case for almost 10 years
up to now. He was even branded as a
money lender, and accused forgery
and of entering into collusion with
the end in view of extracting extra
amount . . . from the herein plaintiff.
All these tried to picture defendant
Cornelio Tantoco with alleged
dishonesty who respecting the
legitimate obligation of the Briones to
defendant Cornelio Tantoco, thereby
blemishing his honor, integrity and
reputation as a prominent doctor and
a businessman. With all these extant
circumstances which served as a
guidepost for us in determining the
reasonable amount of damages
sustained by the defendant-appellee,
this Court hereby fixes the amount of
P60,000.00 representing moral and
exemplary damages and the further
sum of P5,000.00 as attorney's fees,
which plaintiffs-appellants should
491
pay the defendant-appellee." (Rollo,
p. 61)
As a lawyer in the practice of law since his admission to
the Bar in 1929, who has held several important
positions in the government (TSN, April 22, 1965, p.
127) petitioner Fortunato de Leon could not have
missed the import of the annotation at the back of TCT
No. 28296 regarding the second mortgage for the sum
of sixty eight thousand eight hundred twenty-four
pesos (P68,824.00) of the property he was buying, in
favor of respondent Cornelio Tantoco, entry No. 54835
in the registry of deeds of Bulacan (Exhibits, p. 93). The
same annotation was transferred to TCT No. T-25079 in
the name of petitioner after the sale of the property was
effected and entered in the registry of deeds of Bulacan
on June 3, 1959 (Exhibits, p.102). Furthermore,
petitioners cannot deny having assumed the mortgage
debts of the Briones spouses amounting to P89,000.00 in
favor of the Tantocos. The "Patunay" (Exhibits 3-a)
executed by the Briones spouses on June 3, 1959 gives
the information that their property, and fishpond, was
sold by them to the spouses Fortunato de Leon and
Juana F. Gonzales for the amount of one hundred
twenty thousand pesos (P120,000.00),payment made to
them, as follows:
xxx xxx xxx
Petitioner retained P89,000.00 out of the P120,000.00,
representing the mortgage loan of the Briones spouses
to the Tantocos, including interest. Immediately after
the sale of the fishpond was effected and registered
with the registry of deeds of Bulacan petitioner paid the
P20,000.00 loan of the Briones spouses to Hermogenes
Tantoco including 10% interest on the loan, covered by
a first mortgage on the property. Accordingly,
Hermogenes Tantoco executed a deed of discharge
from the mortgage. Out of the P68,000.00 mortgage loan
of the Briones spouses from respondent Cornelio
Tantoco, petitioner, however made only a payment of
P29,382.50 but would want respondent to execute the
necessary discharge document. The documents speak
for themselves. They are mute but plain and visible
evidence of the deliberate intent of petitioner to defraud
respondent of the amount withheld from the Briones
spouses to cover the amount of the mortgage loan in
favor of respondent.
The filing of the case against respondent being
unfounded and maliciously prosecuted satisfactorily
proves the existence of the factual basis for moral
damages and the causal relation to petitioners' acts
(Hawpia v. Court of Appeals, 20 SCRA 535 [1967]; Ventura
v. Bernabe, 38 SCRA 587 [1971]; Enervida v. de la Torre, 55
SCRA 340 [1974]; Tan Kapoe v. Masa, 134 SCRA 231
[1985]). Private respondent has a good name to protect.
He is a surgeon by profession, had been Chief of the
Bulacan Provincial Hospital since 1946 until he put up a
hospital of his own, the Rosary General Hospital. He is
a member of the Knights of Columbus, a Cursillista, a
member of the Lions, a fellow of the Philippine College
of Surgeons in good standing from 1946 up to the
present, a member of the Philippine Medical
Association and of the Bulacan Medical Association. He
has been humiliated, embarrassed, maligned and has
been charged in bad faith as a money lender in
petitioner's complaint accusing him of defrauding the
Briones spouses (TSN, pp. 227-250).
The entitlement to moral damages having been
established the award of exemplary damages is proper
(Bert Osmena & Associates v. Court of Appeals, 120 SCRA
395 [1983]; Tan Kapoc v. Masa, 134 SCRA 231 [1985]).
While the award of moral and exemplary damages in
an aggregate amount may not be the usual way of
awarding said damages there is no question of
respondent's entitlement to moral and exemplary
damage (Tan Kapoe v. Masa, supra). The amount should
be reduced, however, for being excessive compared to
the actual losses sustained by the aggrieved party
(Prudenciado v. Alliance Transport System, Inc., 148 SCRA
440 [1987]). Moral damages though incapable of
pecuniary estimations, are in the category of an award
designed to compensate the claimant for actual injury
suffered and not to impose a penalty of the wrongdoer
(San Andres v. Court of Appeals, 116 SCRA 85 [1982] cited
in Prudenciado v. Alliance Transport System, Inc. supra).
Time and again the Court has ruled that "moral
damages are emphatically not intended to enrich a
complainant at the expense of a defendant. They are
awarded only to enable the injured party to obtain
means, diversion or amusements that will serve to
alleviate the moral suffering he has undergone, by
reason of the defendants' culpable action" (Grand Union
Supermarket, Inc. v. Espino, Jr., 94 SCRA 966 [1979]); R &
B Surety & Insurance Co., Inc. v. Intermediate Appellate
Court, 129 SCRA 736 [1984]; Prudenciado v. Alliance
Transport System, Inc., supra).
In the case of Miranda Ribaya v. Bautista (95 SCRA 672
[1980]), this Court considered 25% of the principal
amount as reasonable. In the case at bar, the Court of
Appeals found on February 21, 1970 that the
outstanding balance of the disputed loan was
P64,921.69. Twenty five percent thereof is P16,230.00
but considering the depreciation of the Philippine peso
today, it is behaved that the award of moral and
exemplary damages in the amount of P25,000.00 is
reasonable.
PREMISES CONSIDERED, the assailed decision of the
Court of Appeals is AFFIRMED but the aggregate
award of moral and exemplary damages is reduced to
P25,000.00.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ.,
concur.
PEOPLE OF THE PHILIPPINES vs.
ROGELIO CRISTOBAL
G.R. No. 116279, 29 January 1996, 252 SCRA 507
DAVIDE, JR., J p:
Rape is the forcible violation of the sexual intimacy of
another person. It does injury to justice and charity.
Rape deeply wounds the respect, freedom, and physical
and moral integrity to which every person has a right. It
causes grave damage that can mark the victim for life. It
is always an intrinsically evil act, an outrage upon
decency and dignity that hurts not only the victim but
the society itself.
The pain rape causes becomes more excruciating when
the victim carries the life of an unborn within her
womb. That tender and innocent life, born of love and
its parents' participation in the mystery of life is thereby
placed in undue danger. Such was the case of Cherry
Tamayo, a married woman. She was twenty-eight years
old, with one child and another on the way, when
tragedy struck. She was sexually assaulted on 31 March
1986. Fortunately, the life in her womb survived.
She accused Rogelio Cristobal of rape in a sworn
complaint filed with the Municipal Trial Court (MTC)
of Maddela, Quirino, on 8 April 1986.
Having found sufficient ground to engender a well-
founded belief that the crime charged has been
committed and the accused was probably guilty
thereof, the court ruled that the accused should be held
for trial. Accordingly, it issued a warrant for his arrest
and fixed his bail bond at P17,000.00. 5 The accused was
arrested but was later released on bail. Thereafter, the
court increased the amount of bail to P30,000.00 and,
consequently, ordered the rearrest of the accused.
Unfortunately, by this time, he was nowhere to be
found.
On 26 August 1986, the MTC ordered the case to be
"sent to the files without prejudice to its subsequent
prosecution as soon as the defendant is apprehended."
Almost a year after, or specifically on 24 August 1987,
the said court ordered the records of the case to be
forwarded to the Provincial Fiscal for proper
disposition.
On 15 September 1987, the Provincial Fiscal of Quirino
filed with the Regional Trial Court (RTC) of
Cabarroguis, Quirino, an information charging accused
Rogelio Cristobal with the crime of rape committed as
follows:
That between the hours of 12:00 to
1:00 o'clock in the afternoon of March
31, 1986 in Barangay San Dionisio I,
Municipality of Maddela, Province of
Quirino, Philippines and within the
jurisdiction of this Honorable Court,
the above-named accused by means
of force, threat and intimidation and
492
 with the lewd design, wilfully, For sexually assaulting a pregnant married woman, the
unlawfully and feloniously have accused has shown moral corruption, perversity, and
sexual intercourse with one CHERRY wickedness. He has grievously wronged the institution
A. TAMAYO against the will of the of marriage. The imposition then of exemplary
latter. damages by way of example to deter others from
committing similar acts or for correction for the public
That the aggravating circumstance of good is warranted. We hereby fix it at P25,000.00.
the accused having committed the
crime in uninhabited place attended Pursuant to the current policy of this Court, the moral
the commission of the crime. damages awarded by the trial court should be increased
from P30,000.00 to P40,000.00.
CONTRARY TO LAW.
WHEREFORE, the instant appeal is DISMISSED, and
The case was docketed as Criminal Case No. 604 and the decision of Branch 32 of the Regional Trial Court of
assigned to Branch 32 of the said court. Cabarroguis, Quirino, in Criminal Case No. 604
convicting the accused ROGELIO CRISTOBAL of the
xxx xxx xxx crime of rape is AFFIRMED, subject to the foregoing
modifications. As modified, the award of moral
In its decision 25 dated 28 March 1994, the trial court damages is increased from P30,000.00 to P40,000.00,
found the accused guilty beyond reasonable doubt of and the accused is further ordered to pay exemplary
the crime of rape and sentenced him to suffer the damages in the amount of P25,000.00.
penalty of reclusion perpetua and to indemnify the
complainant, Cherry Tamayo, in the amount of Costs against the accused.
P30,000.00.
SO ORDERED.
The trial court found clear and convincing the
categorical testimony of Cherry Tamayo of having been Narvasa, C.J., Melo, Francisco and Panganiban, JJ.,
accosted from behind, knocked to the ground, boxed, concur
submerged in water, taken three meters from the creek,
and raped. In view of her positive identification of the
accused, it disregarded the defense of alibi set up by the
latter, which it found to be a weak one. It ruled that for
the defense of alibi to prosper the accused must show
physical impossibility to be at the scene of the crime at
the time it was committed. The accused was within
three kilometers only from Bilala Creek where the rape
was committed. Such distance is near enough to cover
by walking in a matter of thirty minutes. It was not,
therefore, physically impossible for him to be at the
crime scene at the time the crime was committed.

In this appeal, the accused contends that the trial court

erred in (1) convicting him on the basis of the private
complainant's inconsistent testimony, and (2) not giving
due weight to his defense of alibi.

The Appellee disagrees with him and prays that the

assailed decision be affirmed with modification of the
award for moral damages, which should be increased
from P30,000.00 to P50,000.00.

Central to the accused's assigned errors is the issue of

the credibility of the complainant. It has long been
settled that when the issue is one of credibility of
witnesses, appellate courts will generally not disturb
the findings of the trial court considering that the latter
is in a better position to decide the question, having
heard the witnesses themselves and observed their
deportment and manner of testifying during the trial. It
has been aptly said:

xxx xxx xxx

493