1|TORTS Full Text Cases 81 to 100
81
G.R. No. 149547 | Philippine Airlines, Inc. v. Savillo
THIRD DIVISION
[G.R. No. 149547. July 4, 2008.]
PHILIPPINE AIRLINES, INC., petitioner, vs. HON. ADRIANO SAVILLO, Presiding
Judge of RTC Branch 30, Iloilo City, and SIMPLICIO GRIÑO, respondents.
DECISION
CHICO-NAZARIO, J  p:
This is a Petition for Review on  Certiorari  under Rule 45 of the Rules of Court,
assailing the Decision dated 17 August 2001, rendered by the Court of Appeals in
CA-G.R. SP No. 48664, affirming in toto  the Order dated 9 June 1998, of Branch 30
of the Regional Trial Court (RTC) of Iloilo City, dismissing the Motion to Dismiss filed
by petitioner Philippine Airlines Inc. (PAL) in the case entitled,  Simplicio Griño v.
Philippine Airlines, Inc. and Singapore Airlines,  docketed as Civil Case No. 23773.  the hotel at a very late hour. After the series of nerve-wracking experiences, private
PAL is a corporation duly organized under Philippine law, engaged in the business
of providing air carriage for passengers, baggage and cargo.  Upon his return to the Philippines, private respondent brought the matter to the
Public respondent Hon. Adriano Savillo is the presiding judge of Branch 30 of the
Iloilo RTC, where Civil Case No. 23773 was filed; while private respondent Simplicio
Griño is the plaintiff in the aforementioned case.
The facts are undisputed.
Private respondent was invited to participate in the 1993 ASEAN Seniors Annual
Golf Tournament held in Jakarta, Indonesia. He and several companions decided to
purchase their respective passenger tickets from PAL with the following points of
passage: MANILA-SINGAPORE-JAKARTA-SINGAPORE-MANILA. Private
respondent and his companions were made to understand by PAL that its plane
would take them from Manila to Singapore, while Singapore Airlines would take
them from Singapore to Jakarta. TAcSCH
On 3 October 1993, private respondent and his companions took the PAL flight to
Singapore and arrived at about 6:00 o'clock in the evening. Upon their arrival, they
proceeded to the Singapore Airlines office to check-in for their flight to Jakarta
scheduled at 8:00 o'clock in the same evening. Singapore Airlines rejected the
tickets of private respondent and his group because they were not endorsed by
PAL. It was explained to private respondent and his group that if Singapore Airlines
honored the tickets without PAL's endorsement, PAL would not pay Singapore
Airlines for their passage. Private respondent tried to contact PAL's office at the
airport, only to find out that it was closed. 
Stranded at the airport in Singapore and left with no recourse, private respondent
was in panic and at a loss where to go; and was subjected to humiliation,
embarrassment, mental anguish, serious anxiety, fear and distress. Eventually,
private respondent and his companions were forced to purchase tickets from
Garuda Airlines and board its last flight bound for Jakarta. When they arrived in
Jakarta at about 12:00 o'clock midnight, the party who was supposed to fetch them
from the airport had already left and they had to arrange for their transportation to
respondent became ill and was unable to participate in the tournament. 
attention of PAL. He sent a demand letter to PAL on 20 December 1993 and
another to Singapore Airlines on 21 March 1994. However, both airlines disowned
liability and blamed each other for the fiasco. On 15 August 1997, private
respondent filed a Complaint for Damages before the RTC docketed as Civil Case
No. 23773, seeking compensation for moral damages in the amount of
P1,000,000.00 and attorney's fees. 
Instead of filing an answer to private respondent's Complaint, PAL filed a Motion to
Dismiss dated 18 September 1998 on the ground that the said complaint was barred
on the ground of prescription under Section 1 (f) of Rule 16 of the Rules of
Court. PAL argued that the Warsaw Convention, particularly Article 29
2|TORTS Full Text Cases 81 to 100
thereof, governed this case, as it provides that any claim for damages in connection
with the international transportation of persons is subject to the prescription period
of two years. Since the Complaint was filed on 15 August 1997, more than three
years after PAL received the demand letter on 25 January 1994, it was already
barred by prescription. CaESTA
On 9 June 1998, the RTC issued an Order denying the Motion to Dismiss. It
maintained that the provisions of the Civil Code and other pertinent laws of the
Philippines, not the Warsaw Convention, were applicable to the present case.
The Court of Appeals, in its assailed Decision dated 17 August 2001, likewise
dismissed the Petition for Certiorari  filed by PAL and affirmed the 9 June 1998
Order of the RTC. It pronounced that the application of the Warsaw Convention
must not be construed to preclude the application of the Civil Code and other
pertinent laws. By applying Article 1144 of the Civil Code, which allowed for a ten-
year prescription period, the appellate court declared that the Complaint filed by
private respondent should not be dismissed.  baggage or goods performed by any aircraft for hire." It seeks to accommodate or
Hence, the present Petition, in which petitioner raises the following issues:  interests of air carriers seeking to limit potential liability. It employs a scheme of
I carriers. The cardinal purpose of the Warsaw Convention is to provide uniformity of
THE COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO THE
PETITION AS RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING PAL'S
MOTION TO DISMISS.
II
THE COURT OF APPEALS ERRED IN NOT APPLYING THE PROVISIONS OF
THE WARSAW CONVENTION DESPITE THE FACT THAT GRIÑO'S CAUSE OF
ACTION AROSE FROM A BREACH OF CONTRACT FOR INTERNATIONAL AIR
TRANSPORT. ISHCcT
III
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE COMPLAINT
FILED BY GRIÑO BEYOND THE TWO (2)-YEAR PERIOD PROVIDED UNDER
THE WARSAW CONVENTION IS ALREADY BARRED BY PRESCRIPTION. 
The petition is without merit.
In determining whether PAL's Motion to Dismiss should have been granted by the
trial court, it must be ascertained if all the claims made by the private respondent in
his Complaint are covered by the Warsaw Convention, which effectively bars all
claims made outside the two-year prescription period provided under Article 29
thereof. If the Warsaw Convention covers all of private respondent's claims, then
Civil Case No. 23773 has already prescribed and should therefore be dismissed. On
the other hand, if some, if not all, of respondent's claims are outside the coverage of
the Warsaw Convention, the RTC may still proceed to hear the case. 
The Warsaw Convention applies to "all international transportation of persons,
balance the interests of passengers seeking recovery for personal injuries and the
strict liability favoring passengers and imposing damage caps to benefit air
rules governing claims arising from international air travel; thus, it precludes a
passenger from maintaining an action for personal injury damages under local law
when his or her claim does not satisfy the conditions of liability under the
Convention. 
Article 19 of the Warsaw Convention provides for liability on the part of a carrier for
"damages occasioned by delay in the transportation by air of passengers, baggage
or goods." Article 24 excludes other remedies by further providing that "(1) in the
cases covered by articles 18 and 19, any action for damages, however founded, can
only be brought subject to the conditions and limits set out in this convention."
Therefore, a claim covered by the Warsaw Convention can no longer be recovered
under local law, if the statute of limitations of two years has already
lapsed. HATEDC
3|TORTS Full Text Cases 81 to 100
Nevertheless, this Court notes that jurisprudence in the Philippines and the United
States also recognizes that the Warsaw Convention does not "exclusively regulate"
the relationship between passenger and carrier on an international flight. This Court
finds that the present case is substantially similar to cases in which the damages
sought were considered to be outside the coverage of the Warsaw Convention.
In United Airlines v. Uy, this Court distinguished between the (1) damage to the
passenger's baggage and (2) humiliation he suffered at the hands of the airline's
employees. The first cause of action was covered by the Warsaw Convention which
prescribes in two years, while the second was covered by the provisions of the Civil
Code on torts, which prescribes in four years.  private respondent and his companions, despite PAL's assurances to respondent
Similar distinctions were made in American jurisprudence. In  Mahaney v. Air
France,  a passenger was denied access to an airline flight between New York and
Mexico, despite the fact that she held a confirmed reservation. The court therein
ruled that if the plaintiff were to claim damages based solely on the delay she
experienced — for instance, the costs of renting a van, which she had to arrange on
her own as a consequence of the delay — the complaint would be barred by the
two-year statute of limitations. However, where the plaintiff alleged that the airlines
subjected her to unjust discrimination or undue or unreasonable preference or
disadvantage, an act punishable under the United States laws, then the plaintiff may
claim purely nominal compensatory damages for humiliation and hurt feelings,
which are not provided for by the Warsaw Convention. In another case,  Wolgel v.
Mexicana Airlines, the court pronounced that actions for damages for the "bumping
off" itself, rather than the incidental damages due to the delay, fall outside the
Warsaw Convention and do not prescribe in two years. SCHIcT
In the Petition at bar, private respondent's Complaint alleged that both PAL and
Singapore Airlines were guilty of gross negligence, which resulted in his being
subjected to "humiliation, embarrassment, mental anguish, serious anxiety, fear and
distress." The emotional harm suffered by the private respondent as a result of
having been unreasonably and unjustly prevented from boarding the plane should
be distinguished from the actual damages which resulted from the same incident.
Under the Civil Code provisions on tort, such emotional harm gives rise to
compensation where gross negligence or malice is proven.
The instant case is comparable to the case of Lathigra v. British Airways. 
In Lathigra, it was held that the airlines' negligent act of reconfirming the
passenger's reservation days before departure and failing to inform the latter that
the flight had already been discontinued is not among the acts covered by the
Warsaw Convention, since the alleged negligence did not occur during the
performance of the contract of carriage but, rather, days before the scheduled flight. 
In the case at hand, Singapore Airlines barred private respondent from boarding the
Singapore Airlines flight because PAL allegedly failed to endorse the tickets of
that Singapore Airlines had already confirmed their passage. While this fact still
needs to be heard and established by adequate proof before the RTC, an action
based on these allegations will not fall under the Warsaw Convention, since the
purported negligence on the part of PAL did not occur during the performance of the
contract of carriage but days before the scheduled flight. Thus, the present action
cannot be dismissed based on the statute of limitations provided under Article 29 of
the Warsaw Convention.
Had the present case merely consisted of claims incidental to the airlines' delay in
transporting their passengers, the private respondent's Complaint would have been
time-barred under Article 29 of the Warsaw Convention. However, the present case
involves a special species of injury resulting from the failure of PAL and/or
Singapore Airlines to transport private respondent from Singapore to Jakarta — the
profound distress, fear, anxiety and humiliation that private respondent experienced
when, despite PAL's earlier assurance that Singapore Airlines confirmed his
passage, he was prevented from boarding the plane and he faced the daunting
possibility that he would be stranded in Singapore Airport because the PAL office
was already closed. ASHaTc
These claims are covered by the Civil Code provisions on tort, and not within the
purview of the Warsaw Convention. Hence, the applicable prescription period is that
provided under Article 1146 of the Civil Code:
Art. 1146. The following actions must be instituted within four years:
4|TORTS Full Text Cases 81 to 100

(1) Upon an injury to the rights of the plaintiff;

(2) Upon a quasi-delict.

Private respondent's Complaint was filed with the RTC on 15 August 1997, which
was less than four years since PAL received his extrajudicial demand on 25 January
1994. Thus, private respondent's claims have not yet prescribed and PAL's Motion
to Dismiss must be denied. 

Moreover, should there be any doubt as to the prescription of private respondent's

Complaint, the more prudent action is for the RTC to continue hearing the same and
deny the Motion to Dismiss. Where it cannot be determined with certainty whether
the action has already prescribed or not, the defense of prescription cannot be
sustained on a mere motion to dismiss based on what appears to be on the face of
the complaint. And where the ground on which prescription is based does not
appear to be indubitable, the court may do well to defer action on the motion to
dismiss until after trial on the merits. 

IN VIEW OF THE FOREGOING, the instant Petition is DENIED. The assailed

Decision of the Court of Appeals in CA-G.R. SP No. 48664, promulgated on 17
August 2001 is AFFIRMED. Costs against the petitioner. IcTaAH

SO ORDERED.
5|TORTS Full Text Cases 81 to 100
82SECOND DIVISION
[G.R. No. 184202. January 26, 2011.]
AQUINAS SCHOOL, petitioner, vs. SPS. JOSE INTON and MA.
VICTORIA S. INTON, on their behalf and on behalf of their minor
child, JOSE LUIS S. INTON, and SR. MARGARITA YAMYAMIN,
OP, respondents.
DECISION
ABAD, J  p:
This case is about the private school's liability for the outside catechist's
act of shoving a student and kicking him on the legs when he disobeyed her
instruction to remain in his seat and not move around the classroom. EIAaDC
The Facts and the Case
In 1998 respondent Jose Luis Inton (Jose Luis) was a grade three
student at Aquinas School (Aquinas). Respondent Sister Margarita Yamyamin
(Yamyamin), a religion teacher who began teaching at that school only in June
of that year, taught Jose Luis' grade three religion class.
On July 14, 1998, while Yamyamin was writing on the blackboard, Jose
Luis left his assigned seat and went over to a classmate to play a joke of
surprising him. Yamyamin noticed this and sent Jose Luis back to his seat. After
a while, Jose Luis got up again and went over to the same classmate. This time,
unable to tolerate the child's behavior, Yamyamin approached Jose Luis and
kicked him on the legs several times. She also pulled and shoved his head on
the classmate's seat. Finally, she told the child to stay where he was on that
spot of the room and finish copying the notes on the blackboard while seated on
the floor.
As a result of the incident, respondents Jose and Victoria Inton (the
Intons) filed an action for damages on behalf of their son Jose Luis against
Yamyamin and Aquinasbefore the Regional Trial Court (RTC) of Pasig City in
Civil Case 67427. The Intons also filed a criminal action against Yamyamin for
violation of Republic Act 7610 to which she pleaded guilty and was sentenced
accordingly. 
With regard to the action for damages, the Intons sought to recover
actual, moral, and exemplary damages, as well as attorney's fees, for the hurt
that Jose Luis and his mother Victoria suffered. The RTC dismissed Victoria's
personal claims but ruled in Jose Luis' favor, holding Yamyamin liable to him for
moral damages of P25,000.00, exemplary damages of P25,000.00, and
attorney's fees of P10,000.00 plus the costs of suit. 1
Not satisfied, the Intons elevated the case to the Court of Appeals
(CA). 2 They asked the CA to increase the award of damages and
hold Aquinas solidarily liable with Yamyamin. Finding that an employer-
employee relation existed between Aquinas and Yamyamin, the CA found them
solidarily liable to Jose Luis. The CA, however, declined to increase the award
of damages. 3 Jose Luis moved for partial reconsideration but this was
denied. Aquinas, for its part, appealed directly to this Court from the CA
decision through a petition for review on certiorari.
The Issue Presented
The sole issue presented in this case is whether or not the CA was correct
in holding Aquinas solidarily liable with Yamyamin for the damages awarded to Jose
Luis.
The Court's Ruling
The CA found Aquinas liable to Jose Luis based on Article 2180 of
the Civil Codeupon the CA's belief that the school was Yamyamin's
employer. Aquinas contests this. SDIACc
6|TORTS Full Text Cases 81 to 100
The Court has consistently applied the "four-fold test" to determine the
existence of an employer-employee relationship: the employer (a) selects and
engages the employee; (b) pays his wages; (c) has power to dismiss him; and
(d) has control over his work. Of these, the most crucial is the element of
control. Control refers to the right of the employer, whether actually exercised or
reserved, to control the work of the employee as well as the means and
methods by which he accomplishes the same. 4
In this case, the school directress testified that Aquinas had an
agreement with a congregation of sisters under which, in order to fulfill its
ministry, the congregation would send religion teachers to Aquinas to provide
catechesis to its students. Aquinasinsists that it was not the school but
Yamyamin's religious congregation that chose her for the task of catechizing
the school's grade three students, much like the way bishops designate the
catechists who would teach religion in public schools. Under the circumstances,
it was quite evident that Aquinas did not have control over Yamyamin's teaching
methods. The Intons had not refuted the school directress' testimony in this
regard. Consequently, it was error for the CA to hold Aquinas solidarily liable
with Yamyamin.
Of course, Aquinas still had the responsibility of taking steps to ensure
that only qualified outside catechists are allowed to teach its young students. In
this regard, it cannot be said that Aquinas took no steps to avoid the occurrence
of improper conduct towards the students by their religion teacher. 
First, Yamyamin's transcript of records, certificates, and diplomas
showed that she was qualified to teach religion.
Second, there is no question that Aquinas ascertained that Yamyamin
came from a legitimate religious congregation of sisters and that, given her
Christian training, the school had reason to assume that she would behave
properly towards the students.
Third, the school gave Yamyamin a copy of the school's Administrative
Faculty Staff Manual that set the standards for handling students. It also
required her to attend a teaching orientation before she was allowed to teach
beginning that June of 1998. 5
Fourth, the school pre-approved the content of the course she was to
teach 6 to ensure that she was really catechizing the students. HESIcT
And fifth, the school had a program for subjecting Yamyamin to
classroom evaluation. 7 Unfortunately, since she was new and it was just the
start of the schoolyear, Aquinas did not have sufficient opportunity to observe
her methods. At any rate, it acted promptly to relieve her of her assignment as
soon as the school learned of the incident. 8 It cannot be said that Aquinas was
guilty of outright neglect.
Regarding the Intons' plea for an award of greater amounts of
damages, the Court finds no justification for this since they did not appeal from
the decision of the CA. The Intons prayed for the increase only in their comment
to the petition. They thus cannot obtain from this Court any affirmative relief
other than those that the CA already granted them in its decision. 9
WHEREFORE, the Court GRANTS the petition, SETS ASIDEthe
decision of the Court of Appeals in CA-G.R. CV 88106 dated August 4, 2008,
and HOLDS petitioner Aquinas School not liable in damages to respondent
Jose Luis Inton. 
SO ORDERED.
||| (Aquinas School v. Spouses Inton, G.R. No. 184202, [January 26, 2011], 655
PHIL 625-629)
FIRST DIVISION
[G.R. No. 170598. October 9, 2013.]
FAR EAST BANK & TRUST COMPANY, petitioner, vs. ROBERT
MAR CHANTE, a.k.a. ROBERT MAR G. CHAN, respondents.
7|TORTS Full Text Cases 81 to 100
DECISION
BERSAMIN, J  p:
In this dispute between a bank and its depositor over liability for several
supposedly fraudulent withdrawals from the latter's account through an automated
tellering machine (ATM), we hereby resolve the issue of liability against the bank
because of the intervention of a system bug that facilitated the purported
withdrawals.  used in all the 242 transactions; and that the transactions were processed and
The Case
Under review on certiorari is the decision promulgated on August 1,
2005, 1 whereby the Court of Appeals (CA) reversed the judgment the Regional
Trial Court, Branch 51, in Manila (RTC) rendered in favor of the petitioner on May
14, 1998 in Civil Case No. 92-61706. 2 Thereby, the CA relieved the depositor of
any liability for the supposedly fraudulent withdrawals. DaAISH
Antecedents
Robert Mar Chante, also known as Robert Mar G. Chan (Chan), was a
current account depositor of petitioner Far East Bank & Trust Co. (FEBTC) at its
Ongpin Branch (Current Account No. 5012-00340-3). FEBTC issued to him Far East
Card No. 05-01120-5-0 with July 1993 as the expiry date. The card, known as a
"Do-It-All" card to handle credit card and ATM transactions, was tagged in his
current account. As a security feature, a personal identification number (PIN),
known only to Chan as the depositor, was required in order to gain access to the
account. Upon the card's issuance, FEBTC required him as the depositor to key in
the six-digit PIN. Thus, with the use of his card and the PIN, he could then deposit
and withdraw funds from his current account from any FEBTC ATM facility, including
the MEGALINK facilities of other member banks that included the Philippine
National Bank (PNB).
Civil Case No. 92-61706 sprang from the complaint brought by petitioner
Far East Bank & Trust Co. (FEBTC) on July 1, 1992 in the RTC, 3 to recover from
Chan the principal sum of P770,488.30 representing the unpaid balance of the
amount fraudulently withdrawn from Chan's Current Account No. 5012-00340-3 with
the use of Far East Card No. 05-01120-5-0. 
FEBTC alleged that between 8:52 p.m. of May 4, 1992 and 4:06 a.m. of
May 5, 1992, Chan had used Far East Card No. 05-01120-5-0 to withdraw funds
totaling P967,000.00 from the PNB-MEGALINK ATM facility at the Manila Pavilion
Hotel in Manila; that the withdrawals were done in a series of 242 transactions with
the use of the same machine, at P4,000.00/withdrawal, except for transaction No.
108 at 3:51 a.m. of May 5, 1992, when the machine dispensed only P3,000.00; that
MEGALINK'S journal tapes showed that Far East Card No. 05-01120-5-0 had been
recorded by the respective computer systems of PNB and MEGALINK despite the
following circumstances, namely: (a) the offline status of the branch of account
(FEBTC Ongpin Branch); (b) Chan's account balance being only P198,511.70 at the
time, as shown in the bank statement; (c) the maximum withdrawal limit of the ATM
facility being P50,000.00/day; and (d) his withdrawal transactions not being reflected
in his account, and no debits or deductions from his current account with the FEBTC
Ongpin Branch being recorded. CAIaHS
FEBTC added that at the time of the ATM withdrawal transactions, there
was an error in its computer system known as "system bug" whose nature had
allowed Chan to successfully withdraw funds in excess of his current credit balance
of P198,511.70; and that Chan had taken advantage of the system bug to do the
withdrawal transactions. 
On his part, Chan denied liability. Although admitting his physical
possession of Far East Card No. 05-01120-5-0 on May 4 and May 5, 1992, he
denied making the ATM withdrawals totalling P967,000.00, and instead insisted that
he had been actually home at the time of the withdrawals. He alluded to a possible
"inside job" as the cause of the supposed withdrawals, citing a newspaper report to
the effect that an employee of FEBTC's had admitted having debited accounts of its
depositors by using his knowledge of computers as well as information available to
him. Chan claimed that it would be physically impossible for any human being like
him to stand long hours in front of the ATM facility just to withdraw funds. He
contested the debiting of his account, stating that the debiting had affected his
business and had caused him to suffer great humiliation after the dishonor of his
sufficiently-funded checks by FEBTC. DaTEIc
8|TORTS Full Text Cases 81 to 100
The records show that FEBTC discovered the system bug only after its
routine reconciliation of the ATM-MEGALINK transactions on May 7, 1992; that it
immediately adopted remedial and corrective measures to protect its interest in
order to avoid incurring further damage as well as to prevent a recurrence of the
incident; that one of the measures it adopted pursuant to its ATM Service
Agreement with Chan was to program its computer system to repossess his ATM
card; that his ATM card was repossessed at the Ermita Branch of FEBTC when he
again attempted to withdraw at the ATM facility there; that the ATM facility retained
his ATM card until its recovery by the bank; and that FEBTC conducted an in-depth
investigation and a time-and-motion study of the withdrawals in question.
On May 14, 1992, FEBTC debited his current account in the amount of
P192,517.20 pursuant to Chan's ATM Service Agreement. It debited the further sum
of P3,000.00 on May 18, 1992, leaving the unrecovered portion of the funds
allegedly withdrawn by him at P770,488.30. Thus, on May 14 and May 18, 1992,
FEBTC sent to Chan letters demanding the reimbursement of the unrecovered
balance of P770,488.30, but he turned a deaf ear to the demands, impelling it to
bring this case on July 1, 1992. 4
Ruling of the RTC
As reflected in the pre-trial order of October 19, 1992, the issues to be
resolved were, firstly, whether or not Chan had himself withdrawn the total sum of
P967,000.00 with the use of his Far East Card No. 05-01120-5-0 at the PNB-
MEGALINK ATM facility; and, secondly, if the answer to the first issue was that he
did, whether or not he was liable to reimburse to FEBTC the amount of P770,488.30
as actual damages, plus interest. 5
On May 14, 1998, the RTC rendered judgment in favor of FEBTC,
pertinently holding and ruling as follows: 6 cSaATC
In the instant case, what happened was that the
defendant who was at the U.N. Branch of the PNB used his card.
He entered his PIN to have access to a withdrawal transaction
from his account in Far East Bank, Ongpin Branch. However,
after recognizing the card and went to the path of his account it
could not get a signal to proceed with the transaction so it
proceeded to the other path who gave the signal to go on and
dispense money. But there was a computer error as it did not
only dispense the money limit for the day but it continued to
dispense a lot more until it reached the amount of P967,000.00
which took the defendant till the hours of the morning to obtain.
But defendant says he did not use his card. He alleges that it
could be an inside job just like what happened to the said bank
which was published in the newspaper wherein the bank
employee admitted having done the theft through his knowledge
of the computer. Could this be true? DCcSHE
The Court opines that it is not far-fetched. However why
did this Court state that plaintiff's cause of action will
survive? The action of the defendant after the incident gave him
away. Merely two days after the heavy withdrawal, the defendant
returned not at the exact scene of the incident but at a nearby
branch which is also in Ermita and tried again to withdraw. But at
this time the bank already knew what happened so it blocked the
card and retained it being a hot card. The defendant was not
successful this time so what he did was to issue a check almost
for the whole amount of his balance in his account leaving only a
minimal amount. This incident puzzles the Court. Maybe the
defendant was hoping that the machine nearby may likewise
dispense so much amount without being detected. He will not
definitely go back to the U.N. branch as he may think that it is
being watched and so he went to a nearby branch. Unfortunately,
luck was not with him this time and his card was taken by the
bank. The fact that he hastily withdrew the balance of his account
after his card was retained by the bank only showed his
knowledge that the bank may debit his account. It also showed
his intent to do something further other than first inquire why his
card was considered a hot card if he is really innocent. When he
went to the Ermita branch to withdraw from the ATM booth he
was intending to withdraw not more than P50,000.00 as it is the
bank's limit for the day and if ever he needed a bigger amount
than P50,000.00 immediately he should have gone to the branch
for an over the counter transaction but he did not do so and
9|TORTS Full Text Cases 81 to 100
instead issued a check for P190,000.00 dated May 7, 1992 and
another check for P5,000.00 dated May 13, 1992. To the mind of
the Court, to take advantage of a computer error, to gain sudden
and undeserved amount of money should be condemned in the
strongest terms.
There are no available precedents in this case regarding
computer errors, but the Court feels that defendant should be
held liable for the mistaken amount he was able to get from the
machine based on the following provisions of the law. AEDISC
Articles 19, 21, 22 and 23 of the Civil Code . . . . .
xxx xxx xxx
There is likewise one point that the Court would like to
discuss about the allegation of the defendant that it was
impossible for him to withdraw the money in such long period and
almost minute after minute. This Court believes that money is the
least of all, a person may give priority in life. There are many who
would sacrifice a lot just to have lots of it, so it would not be
impossible for one to take time, stand for several hours and just
enter some items in the computer if the return would be
something like a million or close to a million. In fact, the effort
exerted was just peanuts compared to other legitimate ways of
earning a living as the only capital or means used to obtain it was
the defendant's loss of sleep and the time spent in withdrawing
the same.  SO ORDERED.
Moreover, though the cause of action in this case may be
the erroneous dispensation of money due to computer bug which
is not of defendant's wrong doing, the Court sees that what was
wrong was the failure to return the amount in excess of what was
legally his. There is such a thing as JUSTICE. Justice means
rendering to others their due. A person is just when he is careful
about respecting the rights of others, and who knows too, how to
claim what he rightfully deserves as a consequence of fulfilling
his duties.
From the foregoing, the conclusion is manifest that
plaintiff is within its right in initiating the instant suit, as
defendant's refusal to pay the claim constitutes the cause of
action for sum of money.
xxx xxx xxx
WHEREFORE, judgment is hereby rendered in favor of
the plaintiff Far East Bank and Trust Company and against the
defendant Robert Mar Chante a.k.a. Robert Mar G. Chan
ordering the latter to pay the former the following: TIAEac
1. the amount of P770,488.30 as actual damages
representing the unrecovered balance of the
amounts withdrawn by defendant;
2. interest of 24% per annum on the actual damages
from July 1, 1992, the date of the filing of the
complaint until fully paid;
3. the amount of P100,000.00 as exemplary damages;
4. the sum of P30,000.00 as and for attorney's fees; and
5. the costs of the suit.
Defendant's counterclaim is hereby dismissed for lack of
merit.
 
Ruling of the CA
Chan appealed, 7 assigning the following errors to the RTC, to wit:
1. THE TRIAL COURT ERRED IN HOLDING
DEFENDANT-APPELLANT LIABLE FOR THE ALLEGED
WITHDRAWAL OF THE AMOUNT OF P967,000.00 WITH
INTEREST AT THE RATE OF 24% PER ANNUM BASED
MERELY ON CONJECTURES AND SUSPICIONS NOT
ESTABLISHED BY SOLID EVIDENCE;
10 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
2. THE TRIAL COURT ERRED IN AWARDING IN
FAVOR OF APPELLEE EXEMPLARY DAMAGES IN THE
AMOUNT OF P100,000.00 AND ATTORNEY'S FEES IN THE
AMOUNT OF P30,000.00; CDAHaE
3. THE TRIAL COURT ERRED IN NOT ORDERING
THE RESTITUTION OF THE AMOUNT OF P196,521.30
ILLEGALLY DEBITED BY APPELLEE FROM APPELLANT'S
ACCOUNT.
On August 1, 2005, the CA promulgated the assailed decision, reversing
the RTC's judgment, to wit:
. . . . The issues really before us are issues of contract
application and issues of fact that would require an examination
and appreciation of the evidence presented. The first order
therefore in our review of the trial court's decision is to take stock
of the established and undisputed facts, and of the evidence the
parties have presented. We say this at the outset as we believe
that it was in this respect that the lower court failed in its
consideration and appreciation of the case. DcCIAa
xxx xxx xxx
An evidentiary dilemma we face in this case is the fact
that there is no direct evidence on the issue of who made the
actual withdrawals. Chan correctly claims that the bank failed to
present any witness testifying that he (Chan) made the actual
withdrawals. At the same time, Chan can only rely on his own
uncorroborated testimony that he was at home on the night that
withdrawals were made. We recognize that the bank can claim
that no other evidence of actual withdrawal is necessary because
the PIN unique to Chan is already evidence that only Chan or his
authorized representative — and none other — could have
accessed his account. But at the same time, we cannot close our
eyes to the fact that computers and the ATM system is not
perfect as shown by an incident cited by Chan involving the
FEBTC itself. Aside from the vulnerability to inside staff members,
we take judicial notice that no less than our own Central Bank
has publicly warned banks about other nefarious schemes
involving ATM machines. In a March 7, 2003 letter, the Central
Bank stated: EScHDA
March 7, 2003
BSP CIRCULAR LETTER
TO:All Banks
SUBJECT:Technology Fraud on ATM Systems
Please be advised that there were incidents in
other countries regarding technology fraud in
ATM systems perpetrated by unscrupulous
individuals and/or syndicates. These acts are
carried out by:
1. A specialized scanner attached to the ATM card slot,
and;
2. A pinhole camera
xxx xxx xxx
In light of the absence of conclusive direct evidence of actual
withdrawal that we can rely upon, we have to depend on
evidence "other than direct" to reach verdict in this case. 
xxx xxx xxx
WHEREFORE, premises considered, we
hereby GRANT the appeal and accordingly REVERSE and SET
ASIDE the Decision dated May 14, 1998 of the Regional Trial
Court of Manila, Branch 51, in Civil Case No. 92-61706. We
accordingly ORDERplaintiff-appellee Far East Bank and Trust
Company (FEBTC) to return to Chan the amount of
Php196,571.30 plus 12% interest per annum computed from
August 7, 1992 — the time Chan filed his counterclaim — until
11 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
the obligation is satisfied. Costs against the plaintiff-appellee
FEBTC.
SO ORDERED. 8
FEBTC moved for reconsideration, but the CA denied its motion on
November 24, 2005. 9 ADcSHC
Issues
Hence, FEBTC has appealed, urging the reversal of the CA's adverse
decision, and praying that Chan be held liable for the withdrawals made from his
account on May 4 and May 5, 1992; and that it should not be held liable to return to
Chan the sum of P196,571.30 debited from his account.
Ruling
The appeal lacks merit.
FEBTC would want us to hold that Chan had authored the May 4 and May
5, 1992 ATM withdrawals based on the following attendant factors, namely: (a) ATM
transactions were processed and identified by the PIN, among others; (b) the PIN
was exclusive and known only to the account holder; (c) the ATM was tagged in the
cardholder's account where the ATM transactions were debited or credited; (d) the
account number tagged in the ATM card identified the cardholder; (e) the ATM
withdrawals were documented transactions; and (f) the transactions were strictly
monitored and recorded not only by FEBTC as the bank of account but also by the
ATM machine and MEGALINK. In other words, the ATM transactions in question
would not be processed unless the PIN, which was known only to Chan as the
cardholder, had been correctly entered, an indication both that it was his ATM card
that had been used, and that all the transactions had been processed successfully
by the PNB-MEGALINK ATM facility at the Manila Pavilion Hotel with the use of the
correct PIN. HSCAIT
We disagree with FEBTC.
Although there was no question that Chan had the physical possession of
Far East Card No. 05-01120-5-0 at the time of the withdrawals, the exclusive
possession of the card alone did not suffice to preponderantly establish that he had
himself made the withdrawals, or that he had caused the withdrawals to be made. In
his answer, he denied using the card to withdraw funds from his account on the
dates in question, and averred that the withdrawals had been an "inside job." His
denial effectively traversed FEBTC's claim of his direct and personal liability for the
withdrawals, that it would lose the case unless it competently and sufficiently
established that he had personally made the withdrawals himself, or that he had
caused the withdrawals. In other words, it carried the burden of proof. 
Burden of proof is a term that refers to two separate and quite different
concepts, namely: (a) the risk of non-persuasion, or the burden of persuasion,
or simply persuasion burden; and (b) the duty of producing evidence, or the
burden of going forward with the evidence, or simply the production burden or
the burden of evidence. 10 In its first concept, it is the duty to establish the truth
of a given proposition or issue by such a quantum of evidence as the law
demands in the case at which the issue arises. 11 In its other concept, it is the
duty of producing evidence at the beginning or at any subsequent stage of trial
in order to make or meet a prima facie case. Generally speaking, burden of
proof in its second concept passes from party to party as the case progresses,
while in its first concept it rests throughout upon the party asserting the
affirmative of the issue. 12 IECcaA
The party who alleges an affirmative fact has the burden of proving it
because mere allegation of the fact is not evidence of it. 13 Verily, the party who
asserts, not he who denies, must prove. 14
In civil cases, the burden of proof is on the party who would be defeated if
no evidence is given on either side. 15 This is because our system frees the trier of
facts from the responsibility of investigating and presenting the facts and arguments,
placing that responsibility entirely upon the respective parties. 16 The burden of
proof, which may either be on the plaintiff or the defendant, is on the plaintiff if the
defendant denies the factual allegations of the complaint in the manner required by
the Rules of Court; or on the defendant if he admits expressly or impliedly the
essential allegations but raises an affirmative defense or defenses, that, if proved,
would exculpate him from liability. 17 IHCSTE
Section 1, Rule 133 of the Rules of Court  sets the quantum of evidence for
civil actions, and delineates how preponderance of evidence is determined, viz.: 
12 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Section 1.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 may legitimately appear
upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the
greater number. (Emphasis supplied)
As the rule indicates, preponderant evidence refers to evidence that is of
greater weight, or more convincing, than the evidence offered in opposition to
it. 18 It is proof that leads the trier of facts to find that the existence of the contested
fact is more probable than its nonexistence. 19 DaACIH
Being the plaintiff, FEBTC must rely on the strength of its own evidence
instead of upon the weakness of Chan's evidence. Its burden of proof thus required
it to preponderantly demonstrate that his ATM card had been used to make the
withdrawals, and that he had used the ATM card and PIN by himself or by another
person to make the fraudulent withdrawals. Otherwise, it could not recover from him
any funds supposedly improperly withdrawn from the ATM account. We remind that
as a banking institution, FEBTC had the duty and responsibility to ensure the safety
of the funds it held in trust for its depositors. It could not avoid the duty or evade the
responsibility because it alone should bear the price for the fraud resulting from the
system bug on account of its exclusive control of its computer system.
Did FEBTC discharge its burden of proof?  fact that the withdrawals were made under circumstances that
The CA ruled that FEBTC did not because —
After a review of the records of this case, we find the
totality of evidence submitted by FEBTC insufficient to establish
the crucial facts that would justify a judgment in its favor.
To our mind, the fact that Chan's account number and
ATM card number were the ones used for the withdrawals, by
itself, is not sufficient to support the conclusion that he should be
deemed to have made the withdrawals. FEBTC offers in this
regard the PNB ATM's journal tapes to prove the withdrawals and
their details — the time of the transactions; the account number
used; the ATM card number; and the amount withdrawn — and at
the same time declared that these tapes are authentic and
genuine. caIEAD
These tapes, however, are not as reliable as FEBTC
represented them to be as they are not even internally consistent.
A disturbing internal discrepancy we note relates to the amounts
reflected as "ledger balance" and "available balance". We find it
strange that for every 4,000.00 pesos allegedly withdrawn by
Chan, the available balance increased rather than diminished.
Worse, the amount of available balance as reflected in the tapes
was way above the actual available balance of less than
Php200,000.00 that Chan's current account had at that time.
These discrepancies must inevitably reflect on the integrity of the
journal tapes; the proven inconsistencies in some aspects of
these tapes leave the other aspects suspect and uncertain. But
more than this, we are not convinced that the tapes lead us to the
inevitable conclusion that Chan's card, rather than a replacement
card containing Chan's PIN and card number or some other
equivalent scheme, was used. To our mind, we cannot discount
this possibility given the available technology making computer
fraud a possibility, the cited instances of computer security
breaches, the admitted system bug, and — most notably — the
took advantage of the system bug . System errors of this kind,
when taken advantage of to the extent that had happened in this
case, are planned for. Indeed, prior preparation must take place
to avoid suspicion and attention where the withdrawal was made
for seven (7) long hours in a place frequented by hundreds of
guests, over 242 transactions where the physical volume of the
13 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
money withdrawn was not insignificant. To say that this was done
by the owner of the account based solely on the records of the
transactions, is a convenient but not a convincing explanation. 20
In our view, the CA's ruling was correct. 
To start with, Edgar Munarriz, FEBTC's very own Systems Analyst,
admitted that the bug infecting the bank's computer system had facilitated the
fraudulent withdrawals. 21This admission impelled the CA to thoroughly dissect the
situation in order to determine the consequences of the intervention of the system
bug in FEBTC's computer system. It ultimately determined thusly:
Significantly, FEBTC made the admission that there was
a program bug in its computer system. To digress, computers are
run based on specific pre-arranged instructions or "programs"
that act on data or information that computer users input.
Computers can only process these inputted data or information
according to the installed programs. Thus, computers are as
efficient, as accurate and as convenient to use as the instructions
in their installed programs. They can count, sort, compute and
arrive at decisions but they do so only and strictly in accordance
with the programs that make them work. To cite an easy
example, a computer can be programmed to sort a stack of cards
prepared by male and female clients, into male and female
stacks, respectively. To do this, the computer will first scan a card
and look at the place ("a field") where the male/female
information can be found. This information may be in an
appropriate box which the bank client checks or shades to
indicate if he/she is male or female. The computer will check if
the box beside the word "Female" is shaded. If it is, it will send
the card to the "Female" bin. If the box beside the "male" is
shaded, it will send the card to the "Male" bin. If both the squares
are shaded or none is shaded or the card cannot be read, it will
send the card to the "Unknown" bin. This way, the female cards
and the male cards can be sorted efficiently. However, the
program instructions can be written in such a way that the
computer can only make two decisions, that is, if the Female box
is shaded, then the card goes to the "Female" bin; otherwise, the
card goes to the "Male" bin. In this program, all the Female cards
will be sorted correctly but the Male bin will contain all the other
cards, that is, the Male cards, the cards with no shading at all,
and all the other cards that cannot be classified. The imperfect
results arose from the imperfect program instructions or from a
program "bug". Something very close to this example happened
in the present case. EACIcH
According to the testimony of the FEBTC's systems
analyst, there were two computer programs that were involved in
the transactions: CAPDROTH and SCPUP 900. CAPDROTH is
the program that validates if the account exists in the FEBTC
files, if the transaction is valid, and if the branch where the
account is maintained is ON-LINE (i.e., continuously sending
data). When the Chan transaction entered the system, it was
validated by CAPDROTH which, on seeing that the FEBTC-
Ongpin branch was off-line, returned a decision code passing on
the decision to authorize the transaction to the SCPUP 900,
another module. However, SCPUP 900 was not expecting this
type of response or decision code. As the SCPUP 900 program
was originally written, it will send back an error message and
abort a requested transaction if it receives an error message from
any other module; otherwise, it will send a message authorizing
the transaction. In other words, SCPUP 900 had only two
decisions to make: check if the message is an error message, if
not then, authorize. Since what it received in the disputed
transactions were not error messages and were not also
authorizations, it sent back authorization messages allowing the
cash withdrawals. It kept on sending authorization messages for
the 242 cash withdrawal transactions made from Chan's account
between the evening of May 4 and early morning of May 5, 1992.
This program bug was the reason the 242 cash withdrawals were
allowed by the PNB ATM-Megalink machine. IaSCTE
14 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
The program bug occurred because of the simultaneous
presence of three conditions that allowed it to happen: (1) the
withdrawal transactions involved a current account; (2) the
current account was with a branch that at that time was off-line;
and (3) the transaction originated from MEGALINK ( i.e., through
MEGALINK through a member bank other than FEBTC).
Because of the bug, Chan's account was not accessed at the
time of the transactions so that withdrawals in excess of what the
account contained were allowed. Additionally, FEBTC's rule that
only a maximum withdrawable amount per day (in the present
case P50,000.00 per day) can be made from an ATM account,
was by-passed. Thus, 242 withdrawals were made over an eight
hour period, in the total amount of P967,000.00. 22 EHSTDA
Secondly, the RTC's deductions on the cause of the withdrawals were
faulty. In holding against Chan, the RTC chiefly relied on inferences drawn from his
acts subsequent to the series of withdrawals, specifically his attempt to withdraw
funds from his account at an FEBTC ATM facility in Ermita, Manila barely two days
after the questioned withdrawals; his issuance of a check for P190,000.00
immediately after the capture of his ATM card by the ATM facility; his failure to
immediately report the capture of his ATM card to FEBTC; and his going to FEBTC
only after the dishonor of the check he had issued following the freezing of his
account. The inferences were not warranted, however, because the subsequent
acts would not persuasively establish his actual participation in the withdrawals due
to their being actually susceptible of other interpretations consistent with his
innocence. TaDSCA
We join the CA's observation that Chan's subsequent acts "could have been
impelled by so many reasons and motivations, and cannot simply be given the
meaning that the lower court attributed to them," and, instead, were even consistent
with the purpose and nature of his maintaining the current account deposit with
FEBTC, rendering the acts "not unusual nor . . . illegal." 23 Although he was
expected to forthwith bring his card's capture to FEBTC's attention, that he did not
do so could have other plausible explanations consistent with good faith, among
them his being constantly occupied as a businessman to attend to the multifarious
activities of his business. He might have also honestly believed that he still had the
sufficient funds in his current account, as borne out by his issuance of a check
instead after the capture of the card so as not for him to undermine any financial
obligation then becoming due. Nor should his opting to withdraw funds from his
account at the ATM facility in Ermita in less than two days after the questioned
withdrawals manifest responsibility on his part, for he could also be properly
presumed to be then still unaware of the situation involving his account. We note
that his letters 24written in response to FEBTC's written demands to him disclosed
honest intentions rather than malice. 
Thirdly, the RTC ignored the likelihood that somebody other than Chan
familiar with the bug infection of FEBTC's computer system at the time of the
withdrawals and adept with the workings of the computer system had committed the
fraud. This likelihood was not far-fetched considering that FEBTC had immediately
adopted corrective measures upon its discovery of the system bug, by which
FEBTC admitted its negligence in ensuring an error-free computer system; and that
the system bug had affected only the account of Chan. 25 Truly, the trial court
misapprehended the extent to which the system bug had made the computer
system of FEBTC stumble in serious error. AcICTS
Fourthly, and perhaps the most damaging lapse, was that FEBTC failed to
establish that the PNB-MEGALINK's ATM facility at the Manila Pavilion Hotel had
actually dispensed cash in the very significantly large amount alleged during the
series of questioned withdrawals. For sure, FEBTC should have proved the actual
dispensing of funds from the ATM facility as the factual basis for its claim against
Chan. It did require PNB to furnish a validated showing of the exact level of cash
then carried by the latter's ATM facility in the Manila Pavilion Hotel on May 4,
1992. 26 Yet, when PNB employee Erwin Arellano stood as a witness for FEBTC,
he confirmed the authenticity of the journal tapes that had recorded Chan's May 4
and May 5, 1992 supposed ATM transactions but did not categorically state how
much funds PNB-MEGALINK's ATM facility at the Manila Pavilion Hotel had exactly
carried at the time of the withdrawals, particularly the amounts immediately
preceding and immediately following the series of withdrawals. The omission left a
yawning gap in the evidence against Chan. 
And lastly, Chan's allegation of an "inside job" accounting for the anomalous
withdrawals should not be quickly dismissed as unworthy of credence or weight.
FEBTC employee Manuel Del Castillo, another witness for FEBTC, revealed that
15 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

FEBTC had previously encountered problems of bank accounts being debited

despite the absence of any withdrawal transactions by their owners. He attributed
the problems to the erroneous tagging of the affected accounts as somebody else's
account, allowing the latter to withdraw from the affected accounts with the use of
the latter's own ATM card, and to the former's account being debited. 27 The
revelation of Del Castillo tended to support Chan's denial of liability, as it showed
the possibility of withdrawals being made by another person despite the PIN being
an exclusive access number known only to the cardholder. 28cEaCTS
It is true that Del Castillo also declared that FEBTC did not store the PINS
of its clients' ATM cards. However, he mentioned that FEBTC had stored the
opposite numbers corresponding to the PINs, which meant that the PINs did not
remain entirely irretrievable at all times and in all cases by any of its officers or
employees with access to the bank's computer system. Accordingly, Del Castillo's
assertion that the PINs were rendered useless upon being entered in the bank's
computer system did not entirely disclose how the information on the PINS of the
depositors was stored or discarded as to become useless for any purpose.
In view of the foregoing, FEBTC did not present preponderant evidence
proving Chan's liability for the supposedly fraudulent withdrawals. It thus failed in
discharging its burden of persuasion. 
WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals;
and DIRECTSthe petitioner to pay the costs of suit.
SO ORDERED.
||| (Far East Bank & Trust Co. v. Chante, G.R. No. 170598, [October 9, 2013], 719
PHIL 221-241)
16 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
SECOND DIVISION
[G.R. No. 125817. January 16, 2002.]
ABELARDO LIM and ESMADITO GUNNABAN, petitioners, vs.
COURT OF APPEALS and DONATO H.
GONZALES, respondents.
Tranquilino F. Meris  for petitioners.
Narciso E. Ramirez  for private respondent.
SYNOPSIS
Private respondent herein purchased an Isuzu passenger jeepney from
Gomercino Vallarta, a holder of a certificate of public convenience for the operation
of a public utility vehicle. He continued to operate the public transport business
without transferring the registration of the vehicle to his name. Thus, the original
owner remained to be the registered owner and operator of the vehicle.
Unfortunately, the vehicle got involved in a road mishap which caused it severe
damage. The ten-wheeler-truck which caused the accident was owned by petitioner
Lim and was driven by co-petitioner Gunnaban. Gunnaban admitted responsibility
for the accident, so that petitioner Lim shouldered the costs of hospitalization of
those wounded, compensation for the heirs of the deceased passenger and the
restoration of the other vehicle involved. He also negotiated for the repair of the
private respondent's jeepney but the latter refused and demanded for its
replacement. Hence, private respondent filed a complaint for damages against
petitioners. Meanwhile, the jeepney was left by the roadside to corrode and decay.
The trial court decided in favor of private respondent and awarded him his claim. On
appeal, the Court of Appeals affirmed the decision of the trial court. Hence,
petitioner filed this petition. The issue herein is whether or not the new owner of a
passenger jeepney who continued to operate the same under the so-
called kabit system and in the course thereof met an accident has the legal
personality to bring the action for damages against the erring vehicle. 
The Supreme Court affirmed the subject decision with modification as to the
computation of interest. According to the Court, the thrust of the law in enjoining
the kabitsystem is not much as to penalize the parties but to identify the person
upon whom responsibility may be fixed in case of an accident with the end view of
protecting the riding public. In the present case, it is once apparent that the evil
sought to be prevented in enjoining the kabit system does not exist. Hence, the
private respondent has the right to proceed against petitioners for the damage
caused on his passenger jeepney as well as on his business.
SYLLABUS
1. CIVIL LAW; COMMON CARRIERS; CERTIFICATE OF PUBLIC
CONVENIENCE; KABIT  SYSTEM; DEFINED AND CONSTRUED AS BEING
CONTRARY TO PUBLIC POLICY; RATIONALE. — The kabit system is an
arrangement whereby a person who has been granted a certificate of public
convenience allows other persons who own motor vehicles to operate them under
his license, sometimes for a fee or percentage of the earnings. Although the parties
to such an agreement are not outrightly penalized by law, the kabit system is
invariably recognized as being contrary to public policy and therefore void and
inexistent under Art. 1409 of the Civil Code. In the early case of Dizon
v. Octavio the Court explained that one of the primary factors considered in the
granting of a certificate of public convenience for the business of public
transportation is the financial capacity of the holder of the license, so that liabilities
arising from accidents may be duly compensated. The kabit system renders illusory
such purpose and, worse, may still be availed of by the grantee to escape civil
liability caused by a negligent use of a vehicle owned by another and operated
under his license. If a registered owner is allowed to escape liability by proving who
the supposed owner of the vehicle is, it would be easy for him to transfer the subject
vehicle to another who possesses no property with which to respond financially for
the damage done. Thus, for the safety of passengers and the public who may have
17 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
been wronged and deceived through the baneful kabit system, the registered owner
of the vehicle is not allowed to prove that another person has become the owner so
that he may be thereby relieved of responsibility. Subsequent cases affirm such
basic doctrine. It would seem then that the thrust of the law in enjoining
the kabit system is not so much as to penalize the parties but to identify the person
upon whom responsibility may be fixed in case of an accident with the end view of
protecting the riding public. The policy therefore loses its force if the public at large
is not deceived, much less involved.
2. ID.; TORTS; DAMAGES AWARDED AS A RESULT THEREOF; NOT
LIMITED TO ACTUAL LOSS BUT EXTENDS TO AMOUNT OF PROFIT LOST;
APPLICATION IN CASE AT BAR. — In awarding damages for tortuous injury, it
becomes the sole design of the courts to provide for adequate compensation by
putting the plaintiff in the same financial position he was in prior to the tort. It is a
fundamental principle in the law on damages that a defendant cannot be held liable
in damages for more than the actual loss which he has inflicted and that a plaintiff is
entitled to no more than the just and adequate compensation for the injury suffered.
His recovery is, in the absence of circumstances giving rise to an allowance of
punitive damages, limited to a fair compensation for the harm done. The law will not
put him in a position better than where he should be in had not the wrong happened.
In the present case, petitioners insist that as the passenger jeepney was purchased
in 1982 for only P30,000.00 to award damages considerably greater than this
amount would be improper and unjustified. Petitioners are at best reminded that
indemnification for damages comprehends not only the value of the loss suffered
but also that of the profits which the obligee failed to obtain. In other words,
indemnification for damages is not limited to damnum emergens or actual loss but
extends to lucrum cessans or the amount of profit lost. SDcITH
3. ID.; DAMAGES; UNLIQUIDATED CLAIMS; INTEREST RATE OF SIX
PERCENT (6%) PER ANNUM SHOULD BE COMPUTED FROM DATE
JUDGMENT OF COURT IS MADE; APPLICATION IN CASE AT BAR. — Upon the
provisions of Art. 2213 of the Civil Code, interest "cannot be recovered upon
unliquidated claims or damages, except when the demand can be established with
reasonable certainty." It is axiomatic that if the suit were for damages, unliquidated
and not known until definitely ascertained, assessed and determined by the courts
after proof, interest at the rate of six percent (6%) per annum should be from the
date the judgment of the court is made (at which time the quantification of damages
may be deemed to be reasonably ascertained). In this case, the matter was not a
liquidated obligation as the assessment of the damage on the vehicle was heavily
debated upon by the parties with private respondent's demand for P236,000.00
being refuted by petitioners who argue that they could have the vehicle repaired
easily for P20,000.00. In fine, the amount due private respondent was not a
liquidated account that was already demandable and payable.
4. ID.; ID.; PARTY INJURED REQUIRED TO EXERCISE DILIGENCE OF
GOOD FATHER OF FAMILY TO MINIMIZE RESULTING DAMAGE. — Article 2203
of the Civil Code exhorts parties suffering from loss or injury to exercise the
diligence of a good father of a family to minimize the damages resulting from the act
or omission in question. One who is injured then by the wrongful or negligent act of
another should exercise reasonable care and diligence to minimize the resulting
damage. Anyway, he can recover from the wrongdoer money lost in reasonable
efforts to preserve the property injured and for injuries incurred in attempting to
prevent damage to it. However we sadly note that in the present case petitioners
failed to offer in evidence the estimated amount of the damage caused by private
respondent's unconcern towards the damaged vehicle. It is the burden of petitioners
to show satisfactorily not only that the injured party could have mitigated his
damages but also the amount thereof; failing in this regard, the amount of damages
awarded cannot be proportionately reduced. 
DECISION
BELLOSILLO, J  p:
When a passenger jeepney covered by a certificate of public convenience is
sold to another who continues to operate it under the same certificate of public
convenience under the so-called kabit system, and in the course thereof the vehicle
meets an accident through the fault of another vehicle, may the new owner sue for
damages against the erring vehicle? Otherwise stated, does the new owner have
any legal personality to bring the action, or is he the real party in interest in the suit,
18 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

despite the fact that he is not the registered owner under the certificate of public
convenience?  averred that the accident was a fortuitous event which was beyond his control. 2
Sometime in 1982 private respondent Donato Gonzales purchased an Isuzu
passenger jeepney from Gomercino Vallarta, holder of a certificate of public
convenience for the operation of public utility vehicle plying the Monumento-Bulacan
route. While private respondent Gonzales continued offering the jeepney for public
transport services he did not have the registration of the vehicle transferred in his
name nor did he source for himself a certificate of public convenience for its
operation. Thus Vallarta remained on record as its registered owner and operator.
On 22 July 1990, while the jeepney was running northbound along the
North diversion road somewhere in Meycauayan, Bulacan, it collided with a ten-
wheeler-truck owned by petitioner Abelardo Lim and driven by his co-petitioner
Esmadito Gunnaban. Gunnaban owned responsibility for the accident, explaining
that while he was traveling towards Manila the truck suddenly lost its brakes. To
avoid colliding with another vehicle, he swerved to the left until he reached the
center island. However, as the center island eventually came to an end, he veered
farther to the left until he smashed into a Ferroza automobile, and later, into private
respondent's passenger jeepney driven by one Virgilio Gonzales. The impact
caused severe damage to both the Ferroza and the passenger jeepney and left one
(1) passenger dead and many others wounded.
Petitioner Lim shouldered the costs for hospitalization of the wounded,
compensated the heirs of the deceased passenger, and had the Ferroza restored to
good condition. He also negotiated with private respondent and offered to have the
passenger jeepney repaired at his shop. Private respondent however did not accept
the offer so Lim offered him P20,000.00, the assessment of the damage as
estimated by his chief mechanic. Again, petitioner Lim's proposition was rejected;
instead, private respondent demanded a brand-new jeep or the amount of
P236,000.00. Lim increased his bid to P40,000.00 but private respondent was
unyielding. Under the circumstances, negotiations had to be abandoned; hence, the
filing of the complaint for damages by private respondent against petitioners.
In his answer Lim denied liability by contending that he exercised due
diligence in the selection and supervision of his employees. He further asserted that
as the jeepney was registered in Vallarta's name, it was Vallarta and not private
respondent who was the real party in interest. 1 For his part, petitioner Gunnaban
Meanwhile, the damaged passenger jeepney was left by the roadside to
corrode and decay. Private respondent explained that although he wanted to take
his jeepney home he had no capability, financial or otherwise, to tow the damaged
vehicle. 3 ACSaHc
The main point of contention between the parties related to the amount of
damages due private respondent. Private respondent Gonzales averred that per
estimate made by an automobile repair shop he would have to spend P236,000.00
to restore his jeepney to its original condition. 4 On the other hand, petitioners
insisted that they could have the vehicle repaired for P20,000.00. 5
On 1 October 1993 the trial court upheld private respondent's claim and
awarded him P236,000.00 with legal interest from 22 July 1990 as compensatory
damages and P30,000.00 as attorney's fees. In support of its decision, the trial court
ratiocinated that as vendee and current owner of the passenger jeepney private
respondent stood for all intents and purposes as the real party in interest. Even
Vallarta himself supported private respondent's assertion of interest over the
jeepney for, when he was called to testify, he dispossessed himself of any claim or
pretension on the property. Gunnaban was found by the trial court to have caused
the accident since he panicked in the face of an emergency which was rather
palpable from his act of directing his vehicle to a perilous streak down the fast lane
of the superhighway then across the island and ultimately to the opposite lane
where it collided with the jeepney.
On the other hand, petitioner Lim's liability for Gunnaban's negligence was
premised on his want of diligence in supervising his employees. It was admitted
during trial that Gunnaban doubled as mechanic of the ill-fated truck despite the fact
that he was neither tutored nor trained to handle such task. 6
Forthwith, petitioners appealed to the Court of Appeals which, on 17 July
1996, affirmed the decision of the trial court. In upholding the decision of the court a
quo the appeals court concluded that while an operator under the kabit system
could not sue without joining the registered owner of the vehicle as his principal,
equity demanded that the present case be made an exception. 7 Hence this
petition. 
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It is petitioner's contention that the Court of Appeals erred in sustaining the
decision of the trial court despite their opposition to the well-established doctrine
that an operator of a vehicle continues to be its operator as long as he remains the
operator of record. According to petitioners, to recognize an operator under
the kabit system as the real party in interest and to countenance his claim for
damages is utterly subversive of public policy. Petitioners further contend that
inasmuch as the passenger jeepney was purchased by private respondent for only
P30,000.00, an award of P236,000.00 is inconceivably large and would amount to
unjust enrichment. 8
Petitioner's attempt to illustrate that an affirmance of the appealed decision
could be supportive of the pernicious kabit system does not persuade. Their labored
efforts to demonstrate how the questioned rulings of the courts a quo are
diametrically opposed to the policy of the law requiring operators of public utility
vehicles to secure a certificate of public convenience for their operation is quite
unavailing.
The kabit system is an arrangement whereby a person who has been
granted a certificate of public convenience allows other persons who own motor
vehicles to operate them under his license, sometimes for a fee or percentage of the
earnings. 9 Although the parties to such an agreement are not outrightly penalized
by law, the kabit system is invariably recognized as being contrary to public policy
and therefore void and inexistent under Art. 1409 of the Civil Code.
In the early case of Dizon v. Octavio 10 the Court explained that one of the
primary factors considered in the granting of a certificate of public convenience for
the business of public transportation is the financial capacity of the holder of the
license, so that liabilities arising from accidents may be duly compensated.
The kabit system renders illusory such purpose and, worse, may still be availed of
by the grantee to escape civil liability caused by a negligent use of a vehicle owned
by another and operated under his license. If a registered owner is allowed to
escape liability by proving who the supposed owner of the vehicle is, it would be
easy for him to transfer the subject vehicle to another who possesses no property
with which to respond financially for the damage done. Thus, for the safety of
passengers and public who may have been wronged and deceived through the
baneful kabit system, the registered owner of the vehicle is not allowed to prove that
another person has become the owner so that he may be thereby relieved of
responsibility. Subsequent cases affirm such basic doctrine. 11
It would seem then that the thrust of the law in enjoining the kabit system is
not so much as to penalize the parties but to identify the person upon whom
responsibility may be fixed in case of an accident with the end view of protecting the
riding public. The policy therefore loses its force if the public at large is not deceived,
much less involved. DcTaEH
In the present case it is at once apparent that the evil sought to be
prevented in enjoining the kabit system does not exist. First, neither of the parties to
the pernicious kabit system is being held liable for damages. Second, the case
arose from the negligence of another vehicle in using the public road to whom no
representation, or misrepresentation, as regards the ownership and operation of the
passenger jeepney was made and to whom no such representation, or
misrepresentation, was necessary. Thus it cannot be said that private respondent
Gonzales and the registered owner of the jeepney were in estoppel for leading the
public to believe that the jeepney belonged to the registered owner. Third, the riding
public was not bothered nor inconvenienced at the very least by the illegal
arrangement. On the contrary, it was private respondent himself who had been
wronged and was seeking compensation for the damage done to him. Certainly, it
would be the height of inequity to deny him his right.
In light of the foregoing, it is evident that private respondent has the right to
proceed against petitioners for the damage caused on his passenger jeepney as
well as on his business. Any effort then to frustrate his claim of damages by the
ingenuity with which petitioners framed the issue should be discouraged, if not
repelled.
In awarding damages for the tortuous injury, it becomes the sole design of
the courts to provide for adequate compensation by putting the plaintiff in the same
financial position he was in prior to the tort. It is fundamental principle in the law on
damages that a defendant cannot be held liable in damages for more than actual
loss which he has inflicted and that a plaintiff is entitled to no more than the just and
adequate compensation for the injury suffered. His recovery is, in the absence of
circumstances giving rise to an allowance of punitive damages, limited to a fair
20 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
compensation for the harm done. The law will not put him in a position better than
where he should be in had not the wrong happened. 12
In the present case, petitioners insist that as the passenger jeepney was
purchased in 1982 for only P30,000.00 to award damages considerably greater than
this amount would be improper and unjustified. Petitioners are at best reminded that
indemnification for damages comprehends not only the value of the loss suffered
but also that of the profits which the obligee failed to obtain. In other words,
indemnification for damages is not limited to damnum emergens or actual loss but
extends to lucrum cessans or the amount of profit lost. 13
Had private respondent's jeepney not met an accident it could reasonably
be expected that it would have continued earning from the business in which it was
engaged. Private respondent avers that he derives an average income of P300.00
per day from his passenger jeepney and this earning was included in the award of
damages made by the trial court and upheld by the appeals court. The award
therefore of P236,000.00 as compensatory damages is not beyond reason nor
speculative as it is based on a reasonable estimate of the total damage suffered by
private respondent, i.e. damage wrought upon his jeepney and the income lost from
his transportation business. Petitioners for their part did not offer any substantive
evidence to refute the estimate made by the courts a quo. aCSEcA
However, we are constrained to depart from the conclusion of the lower
courts that upon the award of compensatory damages legal interest should be
imposed beginning 22 July 1990, i.e. the date of the accident. Upon the provisions
of Art. 2213 of the Civil Code, interest "cannot be recovered upon unliquidated
claims or damages, except when the demand can be established with reasonable
certainty." It is axiomatic that if the suit were for damages, unliquidated and not
known until definitely ascertained, assessed and determined by the courts after
proof, interest at the rate of six percent (6%) per annum should be from the date the
judgment of the court is made (at which time the quantification of damages may be
deemed to be reasonably ascertained). 14
In this case, the matter was not a liquidated obligation as the assessment of
the damage on the vehicle was heavily debated upon by the parties with private
respondent's demand for P236,000.00 being refuted by petitioners who argue that
they could have the vehicle repaired easily for P20,000.00. In fine, the amount due
private respondent was not a liquidated account that was already demandable and
payable. TAcSCH
One last word. We have observed that private respondent left his
passenger jeepney by the roadside at the mercy of the elements. Article 2203 of the
Civil Code exhorts parties suffering from loss or injury to exercise the diligence of a
good father of a family to minimize the damages resulting from the act or omission
in question. One who is injured then by the wrongful or negligent act of another
should exercise reasonable care and diligence to minimize the resulting damage.
Anyway, he can recover from the wrongdoer money lost in reasonable efforts to
preserve the property injured and for injuries incurred in attempting to prevent
damage to it. 15
However we sadly note that in the present case petitioners failed to offer in
evidence the estimated amount of the damage caused by private respondent's
unconcern towards the damaged vehicle. It is the burden of petitioners to show
satisfactorily not only that the injured party could have mitigated his damages but
also the amount thereof; failing in this regard, the amount of damages awarded
cannot be proportionately reduced. 
WHEREFORE, the questioned Decision awarding private respondent
Donato Gonzales P236,000.00 with legal interest from 22 July 1990 as
compensatory damages and P30,000.00 as attorney's fees is MODIFIED. Interest at
the rate of six percent (6%) per annum shall be computed from the time the
judgment of the lower court is made until the finality of this Decision. If the adjudged
principal and interest remain unpaid thereafter, the interest shall be twelve percent
(12%) per annum computed from the time judgment becomes final and executory
until it is fully satisfied.
Costs against petitioners.
SO ORDERED.
||| (Lim v. Court of Appeals, G.R. No. 125817, [January 16, 2002], 424 PHIL 457-
468)
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22 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
FIRST DIVISION
[G.R. No. 208802. October 14, 2015.]
G.V. FLORIDA TRANSPORT, INC., petitioner, vs.  HEIRS OF
ROMEO L. BATTUNG, JR., represented by ROMEO BATTUNG,
SR., respondents.
DECISION
PERLAS-BERNABE, J  p:
Assailed in this petition for review on certiorari 1 are the
Decision 2 dated May 31, 2013 and the Resolution 3 dated August 23, 2013 of
the Court of Appeals (CA) in CA-G.R. CV No. 97757, which affirmed in toto the
Decision 4 dated August 29, 2011 of the Regional Trial Court of Cabagan,
Isabela, Branch 22 (RTC) in Civil Case No. 22-1103 finding petitioner G.V.
Florida Transport, Inc. (petitioner), Federico M. Duplio, Jr. (Duplio), and
Christopher Daraoay (Daraoay) jointly and severally liable to respondents heirs
of Romeo L. Battung, Jr. (respondents) for damages arising from culpa
contractual.
The Facts
Respondents alleged that in the evening of March 22, 2003, Romeo L.
Battung, Jr. (Battung) boarded petitioner's bus with body number 037 and plate
number BVJ-525 in Delfin Albano, Isabela, bound for Manila. 5 Battung was
seated at the first row behind the driver and slept during the ride. When the bus
reached the Philippine Carabao Center in Muñoz, Nueva Ecija, the bus driver,
Duplio, stopped the bus and alighted to check the tires. At this point, a man who
was seated at the fourth row of the bus stood up, shot Battung at his head, and
then left with a companion. The bus conductor, Daraoay, notified Duplio of the
incident and thereafter, brought Romeo to the hospital, but the latter was
pronounced dead on arrival. 6 Hence, respondents filed a complaint 7on July
15, 2008 for damages in the aggregate amount of P1,826,000.00 8 based on a
breach of contract of carriage against petitioner, Duplio, and Baraoay
(petitioner, et al.) before the RTC, docketed as Civil Case No. 22-1103.
Respondents contended that as a common carrier, petitioner and its employees
are bound to observe extraordinary diligence in ensuring the safety of
passengers; and in case of injuries and/or death on the part of a passenger,
they are presumed to be at fault and, thus, responsible therefor. As such,
petitioner, et al. should be held civilly liable for Battung's death. 9
In their defense, petitioner, et al. maintained that they had exercised the
extraordinary diligence required by law from common carriers. In this relation,
they claimed that a common carrier is not an absolute insurer of its passengers
and that Battung's death should be properly deemed a fortuitous event. Thus,
they prayed for the dismissal of the complaint, as well as the payment of their
counterclaims for damages and attorney's fees. 10
The RTC Ruling
In a Decision 11 dated August 29, 2011, the RTC ruled in respondents'
favor and, accordingly, ordered petitioner, et al. to pay respondent the amounts
of: (a)P1,586,000.00 as compensatory damages for unearned
income; (b) P50,000.00 as actual damages; and (c) P50,000.00 as moral
damages. 12
The RTC found that petitioner, et al. were unable to rebut the presumed
liability of common carriers in case of injuries/death to its passengers due to
their failure to show that they implemented the proper security measures to
prevent passengers from carrying deadly weapons inside the bus which, in this
case, resulted in the killing of Battung. As such, petitioner, et al. were held civilly
liable for the latter's death based on culpa contractual. 13
Dissatisfied, petitioner, et al. appealed to the CA. 14
The CA Ruling
23 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
In a Decision 15 dated May 31, 2013, the CA affirmed the ruling of the
RTC in toto. 16 It held that the killing of Battung cannot be deemed as a
fortuitous event, considering that such killing happened right inside petitioner's
bus and that petitioner, et al. did not take any safety measures in ensuring that
no deadly weapon would be smuggled inside the bus. 17
Aggrieved, only petitioner moved for reconsideration 18 which was,
however, denied in a Resolution 19 dated August 23, 2013; hence, the instant
petition.
The Issue Before the Court
The core issue for the Court's resolution is whether or not the CA
correctly affirmed the ruling of the RTC finding petitioner liable for damages to
respondent arising from culpa contractual.
The Court's Ruling
The petition is meritorious.
I.
The law exacts from common carriers ( i.e., those 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) 20the highest degree of diligence ( i.e., extraordinary
diligence) in ensuring the safety of its passengers. Articles 1733 and 1755 of
the Civil Code state:
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.  performance of its contractual obligation, or that the injury
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.
In this relation, Article 1756 of the Civil Code provides that "[i]n 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." This
disputable presumption may also be overcome by a showing that the accident
was caused by a fortuitous event. 21
The foregoing provisions notwithstanding, it should be pointed out that
the law does not make the common carrier an insurer of the absolute safety of
its passengers. In Mariano, Jr. v. Callejas, 22 the Court explained that:
While the law requires the highest degree of diligence
from common carriers in the safe transport of their passengers
and creates a presumption of negligence against them, it does
not, however, make the carrier an insurer of the absolute safety
of its passengers.
Article 1755 of the Civil Code qualifies the duty of
extraordinary care, vigilance[,] and precaution in the carriage of
passengers by common carriers to only such as human care
and foresight can provide. What constitutes compliance with
said duty is adjudged with due regard to all the circumstances.
Article 1756 of the Civil Code, in creating a
presumption of fault or negligence on the part of the common
carrier when its passenger is injured, merely relieves the latter,
for the time being, from introducing evidence to fasten the
negligence on the former, because the presumption stands in
the place of evidence. Being a mere presumption, however, the
same is rebuttable by proof that the common carrier had
exercised extraordinary diligence as required by law in the
suffered by the passenger was solely due to a fortuitous event.
In fine, we can only infer from the law the intention of
the Code Commission and Congress to curb the recklessness
of drivers and operators of common carriers in the conduct of
their business.
24 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Thus, it is clear that neither the law nor the nature of
the business of a transportation company makes it an insurer of
the passenger's safety, but that its liability for personal injuries
sustained by its passenger rests upon its negligence, its failure
to exercise the degree of diligence that the law
requires.23 (Emphases and underscoring supplied)
Therefore, it is imperative for a party claiming against a common carrier
under the above-said provisions to show that the injury or death to the
passenger/s arose from the negligence of the common carrier and/or its
employees in providing safe transport to its passengers.  death of Battung wholly caused by the surreptitious act of a co-passenger who,
In Pilapil v. CA, 24 the Court clarified that where the injury sustained by
the passenger was in no way due (1) to any defect in the means of transport or
in the method of transporting, or (2) to the negligent or willful acts of the
common carrier's employees with respect to the foregoing — such as when the
injury arises wholly from causes created by strangers which the carrier had no
control of or prior knowledge to prevent  — there would be no issue regarding  
the common carrier's negligence in its duty to provide safe and suitable care, as
well as competent employees in relation to its transport business; as such, the
presumption of fault/negligence foisted under Article 1756 of the Civil
Code should not apply:
First, as stated earlier, the presumption of fault or
negligence against the carrier is only a disputable
presumption. [The presumption] gives in where contrary facts
are established proving either that the carrier had exercised the
degree of diligence required by law or the injury suffered by the
passenger was due to a fortuitous event. Where, as in the
instant case, the injury sustained by the petitioner was in no
way due to any defect in the means of transport or in the
method of transporting or to the negligent or wilful acts of [the
common carrier's] employees, and therefore involving no issue
of negligence in its duty to provide safe and suitable [care] as
well as competent employees, with the injury arising wholly
from causes created by strangers over which the carrier had no
control or even knowledge or could not have prevented, the
presumption is rebutted and the carrier is not and ought not to
be held liable. To rule otherwise would make the common
carrier the insurer of the absolute safety of its passengers
which is not the intention of the lawmakers. (Emphasis and
underscoring supplied)
In this case, Battung's death was neither caused by any defect in the
means of transport or in the method of transporting, or to the negligent or willful
acts of petitioner's employees, namely, that of Duplio and Daraoay, in their
capacities as driver and conductor, respectively. Instead, the case involves the
after consummating such crime, hurriedly alighted from the vehicle. 25 Thus,
there is no proper issue on petitioner's duty to observe extraordinary diligence in
ensuring the safety of the passengers transported by it, and the presumption of
fault/negligence against petitioner under Article 1756 in relation to Articles 1733
and 1755 of the Civil Code should not apply.
II.
On the other hand, since Battung's death was caused by a co-
passenger, the applicable provision is Article 1763 of the Civil Code, which
states that "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."
Notably, for this obligation, the law provides a lesser degree of
diligence, i.e., diligence of a good father of a family, in assessing the existence
of any culpability on the common carrier's part. 
Case law states that the concept of diligence of a good father of a
family "connotes reasonable care consistent with that which an ordinarily
prudent person would have observed when confronted with a similar situation.
The test to determine whether negligence attended the performance of an
obligation is: 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." 26
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In ruling on this case, the CA cited Fortune Express, Inc. v. Court of
Appeals 27(Fortune) in ascribing negligence on the part of petitioner,
ratiocinating that it failed to implement measures to detect if its passengers
were carrying firearms or deadly weapons which would pose a danger to the
other passengers. 28 However, the CA's reliance was plainly misplaced in view
of Fortune's factual variance with the case at bar.
In Fortune, the common carrier had already received intelligence
reports from law enforcement agents that certain lawless elements were
planning to hijack and burn some of its buses; and yet, it failed to implement the
necessary precautions to ensure the safety of its buses and its passengers. A
few days later, one of the company's buses was indeed hijacked and burned by
the lawless elements pretending as mere passengers, resulting in the death of
one of the bus passengers. Accordingly, the Court held that the common
carrier's failure to take precautionary measures to protect the safety of its
passengers despite warnings from law enforcement agents showed that it failed
to exercise the diligence of a good father of a family in preventing the attack
against one of its buses; thus, the common carrier was rightfully held liable for
the death of the aforementioned passenger.
In contrast, no similar danger was shown to exist in this case so as to
impel petitioner or its employees to implement heightened security measures to
ensure the safety of its passengers. There was also no showing that during the
course of the trip, Battung's killer made suspicious actions which would have
forewarned petitioner's employees of the need to conduct thorough checks on
him or any of the passengers. Relevantly, the Court, in Nocum v. Laguna
Tayabas Bus Company, 29 has held that common carriers should be given
sufficient leeway in assuming that the passengers they take in will not bring
anything that would prove dangerous to himself, as well as his co-passengers,
unless there is something that will indicate that a more stringent inspection
should be made, viz.:  representations of the passenger regarding the nature of his
In this particular case before Us, it must be considered
that while it is true the passengers of appellant's bus should not
be made to suffer for something over which they had no
control, as enunciated in the decision of this Court cited by His
Honor, fairness demands that in measuring a common carrier's
duty towards its passengers, allowance must be given to the
reliance that should be reposed on the sense of responsibility
of all the passengers in regard to their common safety. It is to
be presumed that a passenger will not take with him anything
dangerous to the lives and limbs of his co-passengers, not to
speak of his own. Not to be lightly considered must be the right
to privacy to which each passenger is entitled. He cannot be
subjected to any unusual search, when he protests the
innocuousness of his baggage and nothing appears to indicate
the contrary, as in the case at bar. In other words, inquiry may
be verbally made as to the nature of a passenger's baggage
when such is not outwardly perceptible, but beyond this,
constitutional boundaries are already in danger of being
transgressed. Calling a policeman to his aid, as suggested by
the service manual invoked by the trial judge, in compelling the
passenger to submit to more rigid inspection, after the
passenger had already declared that the box contained mere
clothes and other miscellaneous, could not have justified
invasion of a constitutionally protected domain. Police officers
acting without judicial authority secured in the manner provided
by law are not beyond the pale of constitutional inhibitions
designed to protect individual human rights and liberties.
Withal, what must be importantly considered here is not so
much the infringement of the fundamental sacred rights of the
particular passenger herein involved, but the constant threat
any contrary ruling would pose on the right of privacy of all
passengers of all common carriers, considering how easily the
duty to inspect can be made an excuse for mischief and abuse.
Of course, when there are sufficient indications that the
baggage may not be true, in the interest of the common safety
of all, the assistance of the police authorities may be solicited,
not necessarily to force the passenger to open his baggage,
but to conduct the needed investigation consistent with the
rules of propriety and, above all, the constitutional rights of the
26 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

passenger. It is in this sense that the mentioned service

manual issued by appellant to its conductors must be
understood. 30 (Emphases and underscoring supplied)
In this case, records reveal that when the bus stopped at San Jose City
to let four (4) men ride petitioner's bus (two [2] of which turned out to be
Battung's murderers), the bus driver, Duplio, saw them get on the bus and even
took note of what they were wearing. Moreover, Duplio made the bus conductor,
Daraoay, approach these men and have them pay the corresponding fare,
which Daraoay did. 31 During the foregoing, both Duplio and Daraoay observed
nothing which would rouse their suspicion that the men were armed or were to
carry out an unlawful activity. With no such indication, there was no need for
them to conduct a more stringent search ( i.e., bodily search) on the aforesaid
men. By all accounts, therefore, it cannot be concluded that petitioner or any of
its employees failed to employ the diligence of a good father of a family in
relation to its responsibility under Article 1763 of the Civil Code.As such,
petitioner cannot altogether be held civilly liable. 
WHEREFORE, the petition is GRANTED. Accordingly, the Decision
dated May 31, 2013 and the Resolution dated August 23, 2013 of the Court of
Appeals in CA-G.R. CV No. 97757 are hereby REVERSED and SET ASIDE.
Accordingly, the complaint for damages filed by respondent's heirs of Romeo L.
Battung, Jr. is DISMISSED for lack of merit.
SO ORDERED.
||| (G.V. Florida Transport, Inc. v. Heirs of Battung, Jr., G.R. No. 208802, [October
14, 2015])
27 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
SECOND DIVISION
[G.R. No. 130003. October 20, 2004.]
JONAS AÑONUEVO, petitioner, vs. HON. COURT OF APPEALS
and JEROME VILLAGRACIA, respondents.
DECISION
TINGA, J  p:
The bicycle provides considerable speed and freedom of movement to the
rider. It derives a certain charm from being unencumbered by any enclosure,
affording the cyclist the perception of relative liberty. It also carries some obvious
risks on the part of the user and has become the subject of regulation, if not by the
government, then by parental proscription.  RTC rendered judgment against Procter and Gamble and Añonuevo, ordering them
The present petition seeks to bar recovery by an injured cyclist of damages
from the driver of the car which had struck him. The argument is hinged on the
cyclist's failure to install safety devices on his bicycle. However, the lower courts
agreed that the motorist himself caused the collision with his own negligence. The
facts are deceptively simple, but the resolution entails thorough consideration of
fundamental precepts on negligence.  affirmed the RTC Decision in toto. 6 After the Court of Appeals denied the Motion
The present petition raises little issue with the factual findings of the
Regional Trial Court (RTC), Branch 160, of Pasig City, as affirmed by the Court of
Appeals. Both courts adjudged petitioner, Jonas Añonuevo (Añonuevo), liable for
damages for the injuries sustained by the cyclist, Jerome Villagracia (Villagracia).
Instead, the petition hinges on a sole legal question, characterized as "novel" by the
petitioner: whether Article 2185 of theNew Civil Code, which presumes the driver of
a motor vehicle negligent if he was violating a traffic regulation at the time of the
mishap, should apply by analogy to non-motorized vehicles. 1
As found by the RTC, and affirmed by the Court of Appeals, the accident in
question occurred on 8 February 1989, at around nine in the evening, at the
intersection of Boni Avenue and Barangka Drive in Mandaluyong (now a city).
Villagracia was traveling along Boni Avenue on his bicycle, while Añonuevo,
traversing the opposite lane, was driving his Lancer car with plate number PJJ-359.
The car was owned by Procter and Gamble Inc., the employer of Añonuevo's
brother, Jonathan. Añonuevo was in the course of making a left turn towards
Libertad Street when the collision occurred. Villagracia sustained serious injuries as
a result, which necessitated his hospitalization several times in 1989, and forced
him to undergo four (4) operations. 
On 26 October 1989, Villagracia instituted an action for damages against
Procter and Gamble Phils., Inc. and Añonuevo before the RTC. 2 He had also filed
a criminal complaint against Añonuevo before the Metropolitan Trial Court of
Mandaluyong, but the latter was subsequently acquitted of the criminal
charge. 3 Trial on the civil action ensued, and in a Decision dated 9 March 1990, the
to pay Villagracia the amounts of One Hundred Fifty Thousand Pesos
(P150,000.00) for actual damages, Ten Thousand Pesos (P10,000.00) for moral
damages, and Twenty Thousand Pesos (P20,000.00) for attorney's fees, as well as
legal costs. 4 Both defendants appealed to the Court of Appeals.
In a Decision 5 dated 8 May 1997, the Court of Appeals Fourth Division
for Reconsideration in a Resolution 7 dated 22 July 1997, Procter and Gamble and
Añonuevo filed their respective petitions for review with this Court. Procter and
Gamble's petition 8 was denied by this Court in a Resolution dated 24 November
1997. Añonuevo's petition, on the other hand, was given due course, 9 and is the
subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the
factual findings of the RTC. Among them: that it was Añonuevo's vehicle which had
struck Villagracia; 10 that Añonuevo's vehicle had actually hit Villagracia's left mid-
28 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
thigh, thus causing a comminuted fracture; 11 that as testified by eyewitness Alfredo
Sorsano, witness for Villagracia, Añonuevo was " umaarangkada," or speeding as he
made the left turn into Libertad; 12 that considering Añonuevo's claim that a
passenger jeepney was obstructing his path as he made the turn, Añonuevo had
enough warning to control his speed; 13 and that Añonuevo failed to exercise the
ordinary precaution, care and diligence required of him in order that the accident
could have been avoided. 14 Notably, Añonuevo, in his current petition, does not
dispute the findings of tortious conduct on his part made by the lower courts, hinging
his appeal instead on the alleged negligence of Villagracia. Añonuevo proffers no
exculpatory version of facts on his part, nor does he dispute the conclusions made
by the RTC and the Court of Appeals. Accordingly, the Court, which is not a trier of
facts, 15 is not compelled to review the factual findings of the lower courts, which
following jurisprudence have to be received with respect and are in fact generally
binding. 16
Notwithstanding, the present petition presents interesting questions for
resolution. Añonuevo's arguments are especially fixated on a particular question of
law: whether Article 2185 of the New Civil Code should apply by analogy to non-
motorized vehicles. 17 In the same vein, Añonuevo insists that Villagracia's own
fault and negligence serves to absolve the former of any liability for
damages. SaTAED
It is easy to discern why Añonuevo chooses to employ this line of argument.
Añonuevo points out that Villagracia's bicycle had no safety gadgets such as a horn
or bell, or headlights, as invoked by a 1948 municipal ordinance. 18 Nor was it duly
registered with the Office of the Municipal Treasurer, as required by the same
ordinance. Finally, as admitted by Villagracia, his bicycle did not have foot
brakes. 19 Before this Court, Villagracia does not dispute these allegations, which
he admitted during the trial, but directs our attention instead to the findings of
Añonuevo's own negligence. 20 Villagracia also contends that, assuming there was
contributory negligence on his part, such would not exonerate Añonuevo from
payment of damages. The Court of Appeals likewise acknowledged the lack of
safety gadgets on Villagracia's bicycle, but characterized the contention as "off-
tangent" and insufficient to obviate the fact that it was Añonuevo's own negligence
that caused the accident. 21
Añonuevo claims that Villagracia violated traffic regulations when he failed
to register his bicycle or install safety gadgets thereon. He posits that  Article 2185 of
the New Civil Code applies by analogy. The provision reads:
Article 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.
The provision was introduced for the first time in this jurisdiction with the
adoption in 1950 of the New Civil Code. 22 Its applicability is expressly qualified to
motor vehicles only, and there is no ground to presume that the law intended a
broader coverage. 
Still, Añonuevo hypothesizes that Article 2185 should apply by analogy to
all types of vehicles. 23 He points out that modern-day travel is more complex now
than when theCode was enacted, the number and types of vehicles now in use far
more numerous than as of then. He even suggests that at the time of the enactment
of the Code, the legislators "must have seen that only motor vehicles were of such
public concern that they had to be specifically mentioned," yet today, the interaction
of vehicles of all types and nature has "inescapably become matter of public
concern" so as to expand the application of the law to be more responsive to the
times. 24
What Añonuevo seeks is for the Court to amend the explicit command of
the legislature, as embodied in Article 2185, a task beyond the pale of judicial
power. The Court interprets, and not creates, the law. However, since the Court is
being asked to consider the matter, it might as well examine whether Article 2185
could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-
motorized vehicles ranging from human-powered contraptions on wheels such as
bicycles, scooters, and animal-drawn carts such as calesas and carromata. These
modes of transport were even more prevalent on the roads of the 1940s and 1950s
than they are today, yet the framers of the New Civil Code chose then to exclude
these alternative modes from the scope of Article 2185 with the use of the term
"motorized vehicles." If Añonuevo seriously contends that the application of Article
2185 be expanded due to the greater interaction today of all types of vehicles, such
29 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
argument contradicts historical experience. The ratio of motorized vehicles as to
non-motorized vehicles, as it stood in 1950, was significantly lower than as it stands
today. This will be certainly affirmed by statistical data, assuming such has been
compiled, much less confirmed by persons over sixty. Añonuevo's characterization
of a vibrant intra-road dynamic between motorized and non-motorized vehicles is
more apropos to the past than to the present.  driver must at all times use all the care and caution which a
There is a fundamental flaw in Añonuevo's analysis of Art. 2185, as
applicable today. He premises that the need for the distinction between motorized
and non-motorized vehicles arises from the relative mass of number of these
vehicles. The more pertinent basis for the segregate classification is the difference
in type of these vehicles. A motorized vehicle operates by reason of a motor engine
unlike a non-motorized vehicle, which runs as a result of a direct exertion by man or
beast of burden of direct physical force. A motorized vehicle, unimpeded by the
limitations in physical exertion, is capable of greater speeds and acceleration than
non-motorized vehicles. At the same time, motorized vehicles are more capable of
inflicting greater injury or damage in the event of an accident or collision. This is due
to a combination of factors peculiar to the motor vehicle, such as the greater speed,
its relative greater bulk of mass, and greater combustability due to the fuels that
they use.
 
There long has been judicial recognition of the peculiar dangers posed by
the motor vehicle. As far back as 1912, in U.S. v. Juanillo, 25 the Court has
recognized that an automobile is capable of great speed, greater than that of
ordinary vehicles hauled by animals, "and beyond doubt it is highly dangerous when
used on country roads, putting to great hazard the safety and lives of the mass of
the people who travel on such roads." 26 In the same case, the Court emphasized:
A driver of an automobile, under such circumstances, is
required to use a greater degree of care than drivers of animals,
for the reason that the machine is capable of greater destruction,
and furthermore, it is absolutely under the power and control of
the driver; whereas, a horse or other animal can and does to
some extent aid in averting an accident. It is not pleasant to be
obliged to slow down automobiles to accommodate persons
riding, driving, or walking. It is probably more agreeable to send
the machine along and let the horse or person get out of the way
in the best manner possible; but it is well to understand, if this
course is adopted and an accident occurs, that the automobile
driver will be called upon to account for his acts. An automobile
careful and prudent driver would have exercised under the
circumstances. 27
American jurisprudence has had occasion to explicitly rule on the
relationship between the motorist and the cyclist. Motorists are required to exercise
ordinary or reasonable care to avoid collision with bicyclists. 28 While the duty of
using ordinary care falls alike on the motorist and the rider or driver of a bicycle, it is
obvious, for reasons growing out of the inherent differences in the two vehicles, that
more is required from the former to fully discharge the duty than from the latter. 29
The Code Commission was cognizant of the difference in the natures and
attached responsibilities of motorized and non-motorized vehicles. Art. 2185 was not
formulated to compel or ensure obeisance by all to traffic rules and regulations. If
such were indeed the evil sought to be remedied or guarded against, then the
framers of the Code would have expanded the provision to include non-motorized
vehicles or for that matter, pedestrians. Yet, that was not the case; thus the need
arises to ascertain the peculiarities attaching to a motorized vehicle within the
dynamics of road travel. The fact that there has long existed a higher degree of
diligence and care imposed on motorized vehicles, arising from the special nature of
a motor vehicle, leads to the inescapable conclusion that the qualification under
Article 2185 exists precisely to recognize such higher standard. Simply put, the
standards applicable to motor vehicle are not on equal footing with other types of
vehicles. 
Thus, we cannot sustain the contention that Art. 2185 should apply to non-
motorized vehicles, even if by analogy. There is factual and legal basis that
necessitates the distinction under Art. 2185, and to adopt Añonuevo's thesis would
unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to
Villagracia, this should not preclude any possible finding of negligence on his part.
30 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
While the legal argument as formulated by Añonuevo is erroneous, his core
contention that Villagracia was negligent for failure to comply with traffic regulations
warrants serious consideration, especially since the imputed negligent acts were
admitted by Villagracia himself.
The Civil Code characterizes negligence as 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. 30 However, the
existence of negligence in a given case is not determined by the personal judgment
of the actor in a given situation, but rather, it is the law which determines what would
be reckless or negligent. 31
Añonuevo asserts that Villagracia was negligent as the latter had
transgressed a municipal ordinance requiring the registration of bicycles and the
installation of safety devices thereon. This view finds some support if anchored on
the long standing principle of negligence per se. TEIHDa
The generally accepted view is that the violation of a statutory duty
constitutes negligence, negligence as a matter of law, or negligence per
se. 32 In Teague v. Fernandez, 33 the Court cited with approval American
authorities elucidating on the rule:
"The mere fact of violation of a statute is not sufficient
basis for an inference that such violation was the proximate
cause of the injury complained. However, if the very injury has
happened which was intended to be prevented by the statute, it
has been held that violation of the statute will be deemed to be
the proximate cause of the injury." (65 C.J.S. 1156)
"The generally accepted view is that violation of a
statutory duty constitutes negligence, negligence as a matter of
law, or, according to the decisions on the question,
negligence per se, for the reason that non-observance of what
the legislature has prescribed as a suitable precaution is failure to
observe that care which an ordinarily prudent man would
observe, and, when the state regards certain acts as so liable to
injure others as to justify their absolute prohibition, doing the
forbidden act is a breach of duty with respect to those who may
be injured thereby; or, as it has been otherwise expressed, when
the standard of care is fixed by law, failure to conform to such
standard is negligence, negligence  per se or negligence in and of
itself, in the absence of a legal excuse. According to this view it is
immaterial, where a statute has been violated, whether the act or
omission constituting such violation would have been regarded as
negligence in the absence of any statute on the subject or
whether there was, as a matter of fact, any reason to anticipate
that injury would result from such violation. . . ." (65 C.J.S. pp.
623–628)
"But the existence of an ordinance changes the situation.
If a driver causes an accident by exceeding the speed limit, for
example, we do not inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it was prohibited.
Violation of an ordinance intended to promote safety is
negligence. If by creating the hazard which the ordinance was
intended to avoid it brings about the harm which the ordinance
was intended to prevent, it is a legal cause of the harm. This
comes only to saying that in such circumstances the law has no
reason to ignore the causal relation which obviously exists in fact.
The law has excellent reason to recognize it, since it is the very
relation which the makers of the ordinance anticipated. This court
has applied these principles to speed limits and other regulations
of the manner of driving." ( Ross vs. Hartman, 139 Fed. 2d 14 at
15).
". . . However, the fact that other happenings causing or
contributing toward an injury intervened between the violation of a
statute or ordinance and the injury does not necessarily make the
result so remote that no action can be maintained. The test is to
be found not in the number of intervening events or agents, but in
their character and in the natural and probable connection
between the wrong done and the injurious consequence. The
general principle is that the violation of a statute or ordinance is
not rendered remote as the cause of an injury by the intervention
31 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
of another agency if the occurrence of the accident, in the
manner in which it happened, was the very thing which the
statute or ordinance was intended to prevent." (38 Am Jur
841) 34
In Teague, the owner of a vocational school stricken by a fire resulting in
fatalities was found negligent, based on her failure to provide adequate fire exits in
contravention of a Manila city ordinance. 35 In F.F. Cruz and Co., Inc. v. Court of
Appeals, 36 the failure of the petitioner to construct a firewall in accordance with city
ordinances sufficed to support a finding of negligence. 37 In Cipriano v. Court of
Appeals, 38 the Court found that the failure of the petitioner to register and insure
his auto rustproofing shop in accordance with the statute constituted negligence  per
se, thus holding him liable for damages for the destruction by fire of a customer's
vehicle garaged therein.
Should the doctrine of negligence  per se apply to Villagracia, resulting from
his violation of an ordinance? It cannot be denied that the statutory purpose for
requiring bicycles to be equipped with headlights or horns is to promote road safety
and to minimize the occurrence of road accidents involving bicycles. At face value,
Villagracia's mishap was precisely the danger sought to be guarded against by the
ordinance he violated. Añonuevo argues that Villagracia's violation should bar the
latter's recovery of damages, and a simplistic interpretation of negligence  per
se might vindicate such an argument.  consisting in whole or in part, of violation of law, like any other
But this is by no means a simple case. There is the fact which we consider
as proven, that Añonuevo was speeding as he made the left turn, and such
negligent act was the proximate cause of the accident. This reckless behavior would
have imperiled anyone unlucky enough within the path of Añonuevo's car as it
turned into the intersection, whether they are fellow motorists, pedestrians, or
cyclists. We are hard put to conclude that Villagracia would have avoided injury had
his bicycle been up to par with safety regulations, especially considering that
Añonuevo was already speeding as he made the turn, or before he had seen
Villagracia. Even assuming that Añonuevo had failed to see Villagracia because the
bicycle was not equipped with headlights, such lapse on the cyclist's part would not
have acquitted the driver of his duty to slow down as he proceeded to make the left
turn.
 
This Court has appreciated that negligence  per se, arising from the mere
violation of a traffic statute, need not be sufficient in itself in establishing liability for
damages. In Sanitary Steam Laundry, Inc. v. Court of Appeals , 39 a collision
between a truck and a privately-owned Cimarron van caused the death of three of
the van's passengers. The petitioner therein, the owner of the truck, argued that the
driver of the Cimarron was committing multiple violations of the Land Transportation
and Traffic Code 40 at the time of the accident. Among these violations: the
Cimarron was overloaded at the time of the accident; the front seat of the van was
occupied by four adults, including the driver; and the van had only one functioning
headlight. Similar as in this case, petitioner therein invoked Article 2185 and argued
that the driver of the Cimarron should be presumed negligent. The Court, speaking
through Justice Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of
the Cimarron driver contributed to the collision between the
vehicles. Indeed, petitioner has the burden of showing a causal
connection between the injury received and the violation of the
Land Transportation and Traffic Code. He must show that the
violation of the statute was the proximate or legal cause of the
injury or that it substantially contributed thereto. Negligence,
negligence, is without legal consequence unless it is a
contributing cause of the injury. Petitioner says that "driving an
overloaded vehicle with only one functioning headlight during
nighttime certainly increases the risk of accident," that because
the Cimarron had only one headlight, there was "decreased
visibility," and that the fact that the vehicle was overloaded and its
front seat overcrowded "decreased its maneuverability."
However, mere allegations such as these are not sufficient to
discharge its burden of proving clearly that such alleged
negligence was the contributing cause of the injury. 41
Sanitary Steam 42 is controlling in this case. 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
32 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
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. 43 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. 
The rule on negligence per se must admit qualifications that may arise from
the logical consequences of the facts leading to the mishap. The doctrine (and
Article 2185, for that matter) is undeniably useful as a judicial guide in adjudging
liability, for it seeks to impute culpability arising from the failure of the actor to
perform up to a standard established by a legal fiat. But the doctrine should not be
rendered inflexible so as to deny relief when in fact there is no causal relation
between the statutory violation and the injury sustained. Presumptions in law, while
convenient, are not intractable so as to forbid rebuttal rooted in fact. After all, tort
law is remunerative in spirit, aiming to provide compensation for the harm suffered
by those whose interests have been invaded owing to the conduct of others. 44
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 device onto a bicycle. 45 In most cases, the absence of proper
lights on a bicycle does not constitute negligence as a matter of law 46 but is a
question for the jury whether the absence of proper lights played a causal part in
producing a collision with a motorist. 47The 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; 48however, the absence of such
lights will not preclude or diminish recovery if the scene of the accident was well
illuminated by street lights, 49 if substitute lights were present which clearly
rendered the bicyclist visible, 50 if the motorist saw the bicycle in spite of the
absence of lights thereon, 51 or if the motorist would have been unable to see the
bicycle even if it had been equipped with lights. 52 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. 53
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. 54Añonuevo had the burden of clearly
proving that the alleged negligence of Villagracia was the proximate or contributory
cause of the latter's injury. 
On this point, the findings of the Court of Appeals are well-worth citing:
[As] admitted by appellant Añonuevo, he first saw
appellee Villagracia at a distance of about ten (10) meters before
the accident. Corollarily, therefore, he could have avoided the
accident had he [stopped] alongside with an earlier ( sic) jeep
which was already at a full stop giving way to appellee. But
according to [eyewitness] Sorsano, he saw appellant Añonuevo
"umaarangkada" and hit the leg of Villagracia (TSN March 14,
1990 p. 30). This earlier (sic) jeep at a full stop gave way to
Villagracia to proceed but Añonuevo at an unexpected motion
(umarangkada) came out hitting Villagracia (TSN March 9, 1990
p. 49). Appellant Añonuevo admitted that he did not blow his horn
when he crossed Boni Avenue (TSN March 21, 1990 p. 47). 55
By Añonuevo's own admission, he had seen Villagracia at a good distance
of ten (10) meters. Had he been decelerating, as he should, as he made the turn,
Añonuevo would have had ample opportunity to avoid hitting Villagracia. Moreover,
the fact that Añonuevo had sighted Villagracia before the accident would negate any
possibility that the absence of lights on the bike contributed to the cause of the
accident. 56 A motorist has been held liable for injury to or death of a bicyclist where
the motorist turned suddenly into the bicyclist so as to cause a collision. 57
33 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

Neither does Añonuevo attempt before this Court to establish a causal WHEREFORE, the Petition is DENIED. The Decision of the Court of
connection between the safety violations imputed to Villagracia and the accident Appeals is AFFIRMED. Costs against petitioner.
itself. Instead, he relied on a putative presumption that these violations in
SO ORDERED.
themselves sufficiently established negligence appreciable against Villagracia.
Since the onus on Añonuevo is to conclusively prove the link between the violations ||| (Añonuevo v. Court of Appeals, G.R. No. 130003, [October 20, 2004], 483 PHIL
and the accident, we can deem him as having failed to discharge his necessary 756-774)
burden of proving Villagracia's own liability.
Neither can we adjudge Villagracia with contributory negligence. The
leading case in contributory negligence, Rakes v. Atlantic Gulf 58  clarifies that
damages may be mitigated if the claimant "in conjunction with the occurrence,
[contributes] only to his injury." 59 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 of an impending danger to health and body.  60 To
prove contributory negligence, it is still necessary to establish a causal link, although
not proximate, between the negligence of the party and the succeeding injury. In a
legal sense, negligence is contributory only when it contributes proximately to the
injury, and not simply a condition for its occurrence. 61
As between Añonuevo and Villagracia, the lower courts adjudged Añonuevo
as solely responsible for the accident. The petition does not demonstrate why this
finding should be reversed. It is hard to imagine that the same result would not have
occurred even if Villagracia's bicycle had been equipped with safety equipment.
Añonuevo himself admitted having seen Villagracia from ten (10) meters away, thus
he could no longer claim not having been sufficiently warned either by headlights or
safety horns. The fact that Añonuevo was recklessly speeding as he made the turn
likewise leads us to believe that even if Villagracia's bicycle had been equipped with
the proper brakes, the cyclist would not have had the opportunity to brake in time to
avoid the speeding car. Moreover, it was incumbent on Añonuevo to have
established that Villagracia's failure to have installed the proper brakes contributed
to his own injury. The fact that Añonuevo failed to adduce proof to that effect leads
us to consider such causal connection as not proven. 
All told, there is no reason to disturb the assailed judgment.
 
34 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
THIRD DIVISION
[G.R. No. 192973. September 29, 2014.]
PEDRITO DELA TORRE, petitioner, vs. DR. ARTURO IMBUIDO,
DRA. NORMA IMBUIDO in their capacity as owners and
operators of DIVINE SPIRIT GENERAL HOSPITAL and/or DR.
NESTOR PASAMBA,respondents.
RESOLUTION
REYES, J  p:
This resolves the petition for review on certiorari 1 filed by petitioner Pedrito
Dela Torre (Pedrito) assailing the Decision 2 dated December 15, 2009 and
Resolution 3 dated July 27, 2010 of the Court of Appeals (CA) in CA-G.R. CV No.
78534.  by pregnancy." 9 An autopsy report 10 prepared by Dr. Richard Patilano (Dr.
The case stemmed from a complaint 4 for damages filed by Pedrito against
herein respondents Dr. Arturo Imbuido and Dr. Norma Imbuido (Dr. Norma), in their
capacity as the owners and operators of the Divine Spirit General Hospital in
Olongapo City, and Dr. Nestor Pasamba (Dr. Nestor) (respondents). Pedrito alleged
in his complaint that he was married to one Carmen Castillo Dela Torre (Carmen),
who died while admitted at the Divine Spirit General Hospital on February 13, 1992.
Carmen was due to give birth on February 2, 1992 and was brought at around 11:30
p.m. on that day by Pedrito to the Divine Spirit General Hospital. When Carmen still
had not delivered her baby at the expected time, Dr. Norma discussed with Pedrito
the possibility of a caesarean section operation. 5
At around 3:00 p.m. on February 3, 1992, Carmen was brought to the
hospital's operating room for her caesarian section operation, which was to be
performed by Dr. Nestor. By 5:30 p.m. of the same day, Pedrito was informed of his
wife's delivery of a baby boy. In the early morning of February 4, 1992, Carmen
experienced abdominal pain and difficulty in urinating. She was diagnosed to be
suffering from urinary tract infection (UTI), and was prescribed medications by Dr.
Norma. On February 10, 1992, Pedrito noticed that Carmen's stomach was getting
bigger, but Dr. Norma dismissed the patient's condition as mere
flatulence (kabag). 6 cEISAD
When Carmen's stomach still grew bigger despite medications, Dr. Norma
advised Pedrito of the possibility of a second operation on Carmen. Dr. Norma,
however, provided no details on its purpose and the doctor who would perform it. At
around 3:00 p.m. on February 12, 1992, Carmen had her second operation. Later in
the evening, Dr. Norma informed Pedrito that "everything was going on fine with
[his] wife." 7
The condition of Carmen, however, did not improve. It instead worsened
that on February 13, 1992, she vomited dark red blood. At 9:30 p.m. on the same
day, Carmen died. 8 Per her certificate of death upon information provided by the
hospital, the immediate cause of Carmen's death was "cardio-respiratory arrest
secondary to cerebro vascular accident, hypertension and chronic nephritis induced
Patilano), Medico-Legal Officer-Designate of Olongapo City, however, provided that
the cause of Carmen's death was "shock due to peritonitis, severe, with multiple
intestinal adhesions; Status post C[a]esarian Section and Exploratory Laparotomy."
Pedrito claimed in his complaint that the respondents "failed to exercise the
degree of diligence required of them" as members of the medical profession, and
were "negligent for practicing surgery on [Carmen] in the most unskilled, ignorant
and cruel manner, . . .[.]" 11
In their answer 12 to the complaint, the respondents argued that they
"observed the required standard of medical care in attending to the needs of
Carmen." 13 The respondents explained that Carmen was admitted in Divine Spirit
General Hospital for "pregnancy in labor and pre-eclampsia." Her condition was
closely monitored during her confinement. A caesarian section operation became
necessary, as she manifested no significant progress for the spontaneous delivery
35 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
of her baby. 14 No unusual events were observed during the course of Carmen's
caesarian section operation. The second surgery, however, became necessary due
to suspected intestinal obstruction and adhesions. This procedure was fully
explained to Carmen and Pedrito prior to its conduct. During the second operation,
the diagnosis of intestinal obstruction and adhesion was confirmed but resolved by
her doctors. Despite the observance of due care by the doctors, however, Carmen
died on February 13, 1992. 15
The respondents included in their answer a counterclaim for PhP48,515.58
as unpaid hospital charges, professional fees and medicines, PhP3,000,000.00 for
moral damages, PhP1,500,000.00 for exemplary damages, and attorney's fees. 16
After the pre-trial conference, trial proper ensued. To support his claim,
Pedrito presented the testimony of Dr. Patilano, the medicolegal officer who
conducted an autopsy on the body of Carmen upon a telephone request made by
the City Health Officer of Olongapo City, Dr. Generoso Espinosa. Among Dr.
Patilano's observations, as narrated in the lower court's decision, were as follows:
In the intestines, [Dr. Patilano] found out that it was more
reddish than the normal condition which is supposed to be
pinkish. There was presence of adhesions, meaning, it sticks to
each other and these areas were dilated. There were constricted
areas. He concluded that there might have been foreign organic
matters in the intestines. He did not see any swelling but
assuming that there was, it would be concomitant to the
enlargement. . . . He came to the conclusion that the cause of
death was peritonitis, with the multiple adhesions status in the
post caesarian section. In connection with peritonitis, this is the
inflammation of the abdomen. This peritonitis in the abdominal
cavity may be caused by several conditions which are supposed
to be infections, entrance of foreign bodies in the intestines in
connection with ruptured peptic ulcer or [may be] somewhere in
the spleen. The entrance of foreign object in the abdominal
cavities may cause severe infections of the intra-abdominal
cavities resulting [in] multiple adhesions of the intestines. In
cases of surgical operation, it [may be] due to the conditions of
the instruments used, the materials used in the operating room
being not aseptic and the ladies assisting the operation were not
in uniform. . . . . 17
Dr. Patilano claimed that peritonitis could have been prevented through
proper medical procedures and medicines. He also stated that if the cause of
Carmen's death was actually cerebro-vascular accident, there would have been
ruptured blood vessels and blood clot in her head; but there were none in Carmen's
case. 18
Among those who testified to refute Pedrito's claim was Dr. Nestor. He
claimed that when Carmen was referred to him on February 3, 1992, she was in full
term uterine pregnancy, with pre-eclampsia, fetal distress and active labor pains. A
caesarian section operation became necessary to terminate the pregnancy for her
safety. Carmen was ready to go home four days after giving birth, but was advised
by the doctors to stay more because of her persistent hypertension. 19SCHIac
The second surgery performed on Carmen was necessary after she
showed symptoms of intestinal obstruction, which happens as the intestines get
twisted due to adhesions and the normal flow of intestinal contents are obstructed.
For Dr. Nestor, this occurrence was not preventable since any interference of the
abdominal cavity would irritate the serosa of the intestines, inviting adhesions that
could cause obstruction. Surgery could remedy the adhesions and
obstruction. 20 Both Carmen and Pedrito gave their written consent to this second
procedure. 21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the Medico-Legal Division of
the Philippine National Police (PNP) Crime Laboratory Service, 22 also testified for
the respondents. He claimed that based on Dr. Patilano's report, vital internal
organs of Carmen, such as her brain, lungs, kidneys, liver and adrenal glands, were
not examined during the autopsy. 23
On January 28, 2003, the Regional Trial Court (RTC) of Olongapo City,
Branch 75, rendered its Decision 24 in favor of Pedrito. The trial court gave greater
weight to the testimony of Dr. Patilano and thus disposed of the case as follows: 
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiff and against the defendants,
36 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
ordering the latter to pay jointly and severally, the former, the
following sums of money, to wit:
1.) the sum of Php28,759.46 as actual damages;
2.) the sum of Fifty Thousand (Php50,000.00) Pesos as
indemnity for the death of Carmen dela Torre;
3.) the sum of Fifty Thousand (Php50,000.00) Pesos as
moral damages and the further sum of Twenty
Thousand (Php20,000.00) Pesos as exemplary
damages;
4.) the sum of Twenty Thousand (Php20,000.00) Pesos
as attorney's fees; and
5.) the costs of [suit].
SO ORDERED. 25
Dissatisfied with the RTC ruling, the respondents appealed to the CA. On
December 15, 2009, the CA rendered its Decision reversing and setting aside the
decision of the RTC. For the appellate court, it was not established that the
respondents failed to exercise the degree of diligence required of them by their
profession as doctors. The CA also granted the respondents' counterclaim for the
amount of PhP48,515.58, as it held:
WHEREFORE, the Decision of the Regional Trial Court
of Olongapo City dated January 28, 2003 in Civil Case No. 165-0-
92 is hereby REVERSED AND SET ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance for
hospital bills, professional fees and other expenses in the amount
of [PhP]48,515.58.
SO ORDERED. 26
Hence, this petition for review on certiorari in which Pedrito insists that the
respondents should be held liable for the death of Carmen.
The petition is denied. SDcITH
"[M]edical malpractice or, more appropriately, medical negligence, is that
type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm." In order to
successfully pursue such a claim, a patient, or his or her family as in this case,
"must prove that a health care provider, in most cases a physician, either failed to
do something which a reasonably prudent health care provider would have done, or
that he or she did something that a reasonably prudent provider would not have
done; and that failure or action caused injury to the patient." 27
The Court emphasized in Lucas, et al. v. Tuaño 28 that in medical
negligence cases, there is a physician-patient relationship between the doctor and
the victim, but just like in any other proceeding for damages, four essential elements
must be established by the plaintiff, namely: (1) duty; (2) breach; (3) injury; and (4)
proximate causation. All four elements must be present in order to find the physician
negligent and, thus, liable for damages. 29
It is settled that a physician's duty to his patient relates to his exercise of the
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. There is breach of this duty when the patient is injured in
body or in health. Proof of this breach rests 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. To justify an award of damages, the negligence of the doctor
must be established to be the proximate cause of the injury. 30
Through the instant petition, Pedrito seeks the reinstatement of the decision
of the RTC whose finding of the respondents' medical negligence depended mainly
on the testimony of Dr. Patilano. Upon review, however, the Court agrees with the
CA that the report and testimony of Dr. Patilano failed to justify Pedrito's entitlement
to the damages awarded by the RTC.
For the trial court to give weight to Dr. Patilano's report, it was necessary to
show first Dr. Patilano's specialization and competence to testify on the degree of
care, skill and diligence needed for the treatment of Carmen's case. Considering
that it was not duly established that Dr. Patilano practiced and was an expert in the
fields that involved Carmen's condition, he could not have accurately identified the
37 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

said degree of care, skill, diligence and the medical procedures that should have
been applied by her attending physicians.
Similarly, such duty, degree of care, skill and diligence were not sufficiently
established in this case because the testimony of Dr. Patilano was based solely on
the results of his autopsy on the cadaver of Carmen. His study and assessment
were restricted by limitations that denied his full evaluation of Carmen's case. He
could have only deduced from the injuries apparent in Carmen's body, and in the
condition when the body was examined. Judging from his testimony, Dr. Patilano did
not even take full consideration of the medical history of Carmen, her actual health
condition at the time of hospital admission, and her condition as it progressed while
she was being monitored and treated by the respondents. There was also no
reference to the respondents' defense that the emergency caesarian section
operation had to be performed in order to protect the lives and safety of Carmen and
her then unborn child. For lack of sufficient information on Carmen's health condition
while still alive, Dr. Patilano could not have fully evaluated the suitability of the
respondents' decisions in handling Carmen's medical condition as it turned critical.
On the other hand, the CA pointed out that Dr. Nestor, a surgeon,
possessed the reasonable degree of learning, skill and experience required by his
profession for the treatment of Carmen. The respondents also emphasized in their
pleadings before the RTC that Dr. Nestor had his training and experience in surgery
and obstetrics since 1970. Without sufficient proof from the claimant on a different
degree of care, skill and diligence that should be expected from the respondents, it
could not be said with certainty that a breach was actually committed.
the issue of the actual cause of Carmen's death, and the claim of negligence
allegedly committed by the respondents.
As the Court held in Spouses Flores v. Spouses Pineda, et al., 31 the
critical and clinching factor in a medical negligence case is proof of the causal
connection between the negligence and the injuries. The claimant must prove not
only the injury but also the defendant's fault, and that such 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, 32 which the Court finds absent in the case at bar.
As regards the respondents' counterclaim, the CA's award of P48,515.58 is
sustained, considering that among the parties' stipulations during the pre-trial
indicated:
5. That at the time of the death of the patient Carmen C.
dela Torre[,] there was an unpaid balance for hospital bills,
professional fees and other expenses in the amount of
P48,515.58, incurred by plaintiff when the patient was confined at
said hospital from February 3 to 13, 1992.  33
WHEREFORE, the petition is DENIED. The Decision dated December 15,
2009 and Resolution dated July 27, 2010 of the Court of Appeals in CA-G.R. CV No.
78534 are AFFIRMED. 
SO ORDERED.

Moreover, while Dr. Patilano opined that Carmen died of peritonitis which ||| (Dela Torre v. Imbuido, G.R. No. 192973, [September 29, 2014], 744 PHIL 343-
could be due to the poor state of the hospital equipment and medical supplies used 353)
during her operation, there was no sufficient proof that any such fault actually
attended the surgery of Carmen, caused her illness and resulted in her death. It is
also significant that the Chief of the Medico-Legal Division of the PNP Crime
Laboratory Service, Dr. Torres, testified before the trial court that based on the
autopsy report issued by Dr. Patilano, the latter did not comply with the basic
autopsy procedure when he examined the cadaver of Carmen. Dr. Patilano did not
appear to have thoroughly examined Carmen's vital organs such as her heart,
lungs, uterus and brain during the autopsy. His findings were then inconclusive on
38 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

FIRST DIVISION November 6, 1999. In the early morning of that date, however, he was murdered
inside his hotel room by still unidentified malefactors. He was then 30 years old.
[G.R. No. 189998. August 29, 2012.] How the crime was discovered was a story in itself. A routine verification
call from the American Express Card Company to cardholder Harper's residence in
MAKATI SHANGRI-LA HOTEL AND RESORT, Oslo, Norway (i.e., Bygdoy Terasse 16, 0287 Oslo, Norway) led to the discovery. It
INC., petitioner, vs. ELLEN JOHANNE HARPER, JONATHAN appears that at around 11:00 am of November 6, 1999, a Caucasian male of about
CHRISTOPHER HARPER, and RIGOBERTO 30-32 years in age, 5'4" in height, clad in maroon long sleeves, black denims and
GILLERA, respondents. black shoes, entered the Alexis Jewelry Store in Glorietta, Ayala Center, Makati City
and expressed interest in purchasing a Cartier lady's watch valued at P320,000.00
with the use of two Mastercard credit cards and an American Express credit card
DECISION issued in the name of Harper. But the customer's difficulty in answering the queries
phoned in by a credit card representative sufficiently aroused the suspicion of
saleslady Anna Liza Lumba (Lumba), who asked for the customer's passport upon
suggestion of the credit card representative to put the credit cards on hold. Probably
BERSAMIN, J  p: sensing trouble for himself, the customer hurriedly left the store, and left the three
credit cards and the passport behind. TCHEDA
The hotel owner is liable for civil damages to the surviving heirs of its hotel
guest whom strangers murder inside his hotel room. In the meanwhile, Harper's family in Norway must have called him at his
hotel room to inform him about the attempt to use his American Express card. Not
The Case getting any response from the room, his family requested Raymond Alarcon, the
Petitioner, the owner and operator of the 5-star Shangri-La Hotel in Makati Duty Manager of the Shangri-La Hotel, to check on Harper's room. Alarcon and a
City (Shangri-La Hotel), appeals the decision promulgated on October 21, security personnel went to Room 1428 at 11:27 a.m., and were shocked to discover
2009, 1 whereby the Court of Appeals (CA) affirmed with modification the judgment Harper's lifeless body on the bed.
rendered on October 25, 2005 by the Regional Trial Court (RTC) in Quezon City
holding petitioner liable for damages for the murder of Christian Fredrik Harper, a Col. Rodrigo de Guzman (de Guzman), the hotel's Security Manager,
Norwegian national. 2 Respondents Ellen Johanne Harper and Jonathan initially investigated the murder. In his incident report, he concluded from the several
Christopher Harper are the widow and son of Christian Harper, while respondent empty bottles of wine in the trash can and the number of cigarette butts in the toilet
Rigoberto Gillera is their authorized representative in the Philippines.  bowl that Harper and his visitors had drunk that much and smoked that many
cigarettes the night before. 3
Antecedents
The police investigation actually commenced only upon the arrival in the
In the first week of November 1999, Christian Harper came to Manila on a hotel of the team of PO3 Carmelito Mendoza 4 and SPO4 Roberto Hizon. Mendoza
business trip as the Business Development Manager for Asia of ALSTOM Power entered Harper's room in the company of De Guzman, Alarcon, Gami Holazo (the
Norway AS, an engineering firm with worldwide operations. He checked in at the hotel's Executive Assistant Manager), Norge Rosales (the hotel's Executive
Shangri-La Hotel and was billeted at Room 1428. He was due to check out on Housekeeper), and Melvin Imperial (a security personnel of the hotel). They found
39 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

Harper's body on the bed covered with a blanket, and only the back of the head 8. The murderer succeeded to trespass into the area of
could be seen. Lifting the blanket, Mendoza saw that the victim's eyes and mouth the hotel's private rooms area and into the room of the said
had been bound with electrical and packaging tapes, and his hands and feet tied deceased on account of the hotel's gross negligence in providing
with a white rope. The body was identified to be that of hotel guest Christian Fredrik the most basic security system of its guests, the lack of which
Harper. owing to the acts or omissions of its employees was the
immediate cause of the tragic death of said deceased. 
Mendoza subsequently viewed the closed circuit television (CCTV) tapes,
from which he found that Harper had entered his room at 12:14 a.m. of November 6, xxx xxx xxx
1999, and had been followed into the room at 12:17 a.m. by a woman; that another
10. Defendant has prided itself to be among the top hotel
person, a Caucasian male, had entered Harper's room at 2:48 a.m.; that the woman
chains in the East claiming to provide excellent service, comfort
had left the room at around 5:33 a.m.; and that the Caucasian male had come out at
and security for its guests for which reason ABB Alstom
5:46 a.m. 
executives and their guests have invariably chosen this hotel to
On November 10, 1999, SPO1 Ramoncito Ocampo, Jr. interviewed Lumba stay. 7
about the incident in the Alexis Jewelry Shop. During the interview, Lumba
xxx xxx xxx
confirmed that the person who had attempted to purchase the Cartier lady's watch
on November 6, 1999 had been the person whose picture was on the passport Ruling of the RTC
issued under the name of Christian Fredrik Harper and the Caucasian male seen on
On October 25, 2005, the RTC rendered judgment after trial, 8 viz.:
the CCTV tapes entering Harper's hotel room.
WHEREFORE, finding the defendant hotel to be remiss
Sr. Insp. Danilo Javier of the Criminal Investigation Division of the Makati
in its duties and thus liable for the death of Christian Harper, this
City Police reflected in his Progress Report No. 2 5 that the police investigation
Court orders the defendant to pay plaintiffs the amount of:
showed that Harper's passport, credit cards, laptop and an undetermined amount of
cash had been missing from the crime scene; and that he had learned during the PhP43,901,055.00 as and by way of actual and compensatory
follow-up investigation about an unidentified Caucasian male's attempt to purchase
a Cartier lady's watch from the Alexis Jewelry Store in Glorietta, Ayala Center,   damages;
Makati City with the use of one of Harper's credit cards.    
On August 30, 2002, respondents commenced this suit in the RTC to PhP739,075.00 representing the expenses of transporting
recover various damages from petitioner, 6pertinently alleging:
  the remains of Harper to Oslo, Norway;
xxx xxx xxx    
7. The deceased was to check out and leave the hotel on PhP250,000.00 attorney's fees;
November 6, 1999, but in the early morning of said date, while he
was in his hotel room, he was stabbed to death by an (sic) still   and to pay the cost of suit.
unidentified male who had succeeded to intrude into his room.
SO ORDERED.
40 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

Ruling of the CA V
Petitioner appealed, assigning to the RTC the following errors, to wit: THE TRIAL COURT ERRED IN AWARDING ATTORNEY'S
I FEES AND COST OF SUIT TO THE PLAINTIFFS-
APPELLEES, THERE BEING NO PROOF ON RECORD
THE TRIAL COURT ERRED IN RULING THAT THE SUPPORTING SUCH AWARD.
PLAINTIFFS-APPELLEES ARE THE HEIRS OF THE LATE
CHRISTIAN HARPER, AS THERE IS NO COMPETENT On October 21, 2009, the CA affirmed the judgment of the RTC with
EVIDENCE ON RECORD SUPPORTING SUCH modification, 9 as follows: 
RULING. TIcAaH WHEREFORE, the assailed Decision of the Regional
II Trial Court dated October 25, 2005 is
hereby AFFIRMEDwith MODIFICATION. Accordingly, defendant-
THE TRIAL COURT ERRED IN RULING THAT THE appellant is ordered to pay plaintiffs-appellees the amounts of
DEFENDANT-APPELLANT'S NEGLIGENCE WAS THE P52,078,702.50, as actual and compensatory damages;
PROXIMATE CAUSE OF THE DEATH OF MR. HARPER, OR P25,000.00, as temperate damages; P250,000.00, as attorney's
IN NOT RULING THAT IT WAS MR. CHRISTIAN HARPER'S fees; and to pay the costs of the suit.
OWN NEGLIGENCE WHICH WAS THE SOLE, PROXIMATE
CAUSE OF HIS DEATH. SO ORDERED. 10

III Issues
Petitioner still seeks the review of the judgment of the CA, submitting the
THE TRIAL COURT ERRED IN AWARDING TO THE
following issues for consideration and determination, namely:
PLAINTIFFS-APPELLEES THE AMOUNT OF
PHP43,901,055.00, REPRESENTING THE ALLEGED LOST I.
EARNING OF THE LATE CHRISTIAN HARPER, THERE
WHETHER OR NOT THE PLAINTIFFS-APPELLEES WERE
BEING NO COMPETENT PROOF OF THE EARNING OF MR.
ABLE TO PROVE WITH COMPETENT EVIDENCE THE
HARPER DURING HIS LIFETIME AND OF THE ALLEGATION
AFFIRMATIVE ALLEGATIONS IN THE COMPLAINT THAT
THAT THE PLAINTIFFS-APPELLEES ARE MR. HARPER'S
THEY ARE THE WIDOW AND SON OF MR. CHRISTIAN
HEIRS.
HARPER. TaCIDS
IV
II.
THE TRIAL COURT ERRED IN AWARDING TO THE
WHETHER OR NOT THE APPELLEES WERE ABLE TO
PLAINTIFFS-APPELLEES THE AMOUNT OF PHP739,075.00,
PROVE WITH COMPETENT EVIDENCE THE AFFIRMATIVE
REPRESENTING THE ALLEGED COST OF TRANSPORTING
ALLEGATIONS IN THE COMPLAINT THAT THERE WAS
THE REMAINS OF MR. CHRISTIAN HARPER TO OSLO,
NEGLIGENCE ON THE PART OF THE APPELLANT AND ITS
NORWAY, THERE BEING NO PROOF ON RECORD THAT IT
WAS PLAINTIFFS-APPELLEES WHO PAID FOR SAID COST.
41 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
SAID NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE
DEATH OF MR. CHRISTIAN HARPER.
III.
WHETHER OR NOT THE PROXIMATE CAUSE OF THE
DEATH OF MR. CHRISTIAN HARPER WAS HIS OWN
NEGLIGENCE.
Ruling
The appeal lacks merit.
1.
Requirements for authentication of documents
establishing respondents' legal relationship
with the victim as his heirs were complied with
As to the first issue, the CA pertinently held as follows:
The documentary evidence that plaintiffs-appellees
offered relative to their heirship consisted of the following —
1. Exhibit "Q" — Birth Certificate of Jonathan Christopher
Harper, son of Christian Fredrik Harper and Ellen
Johanne Harper;
2. Exhibit "Q-1" — Marriage Certificate of Ellen Johanne
Clausen and Christian Fredrik Harper;  supposed Probate Court Certificate, the original of which was not
3. Exhibit "R" — Birth Certificate of Christian Fredrick
Harper, son of Christopher Shaun Harper and
Eva Harper; and
4. Exhibit "R-1" — Certificate from the Oslo Probate
Court stating that Ellen Harper was married to
the deceased, Christian Fredrick Harper and
listed Ellen Harper and Jonathan Christopher
Harper as the heirs of Christian Fredrik Harper.
Defendant-appellant points out that plaintiffs-appellees
committed several mistakes as regards the above documentary
exhibits, resultantly making them incompetent evidence, to wit,
(a) none of the plaintiffs-appellees or any of the witnesses who
testified for the plaintiffs gave evidence that Ellen Johanne
Harper and Jonathan Christopher Harper are the widow and son
of the deceased Christian Fredrik Harper; (b) Exhibit "Q" was
labeled as Certificate of Marriage in plaintiffs-appellees' Formal
Offer of Evidence, when it appears to be the Birth Certificate of
the late Christian Harper; (c) Exhibit "Q-1" is a translation of the
Marriage Certificate of Ellen Johanne Harper and Christian
Fredrik Harper, the original of which was not produced in court,
much less, offered in evidence. Being a mere translation, it
cannot be a competent evidence of the alleged fact that Ellen
Johanne Harper is the widow of Christian Fredrik Harper,
pursuant to the Best Evidence Rule. Even assuming that it is an
original Marriage Certificate, it is not a public document that is
admissible without the need of being identified or authenticated
on the witness stand by a witness, as it appears to be a
document issued by the Vicar of the Parish of Ullern and, hence,
a private document; (d) Exhibit "R" was labeled as Probate Court
Certificate in plaintiffs-appellees' Formal Offer of Evidence, when
it appears to be the Birth Certificate of the deceased, Christian
Fredrik Harper; and (e) Exhibit "R-1" is a translation of the
produced in court, much less, offered in evidence. Being a mere
translation, it is an incompetent evidence of the alleged fact that
plaintiffs-appellees are the heirs of Christian Fredrik Harper,
pursuant to the Best Evidence Rule. ECaTDc
Defendant-appellant further adds that Exhibits "Q-1" and
"R-1" were not duly attested by the legal custodians (by the Vicar
of the Parish of Ullern for Exhibit "Q-1" and by the Judge or Clerk
of the Probate Court for Exhibit "R-1") as required under Sections
24 and 25, Rule 132 of the Revised Rules of Court. Likewise, the
said documents are not accompanied by a certificate that such
42 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
officer has the custody as also required under Section 24 of Rule
132. Consequently, defendant-appellant asseverates that
Exhibits "Q-1" and "R-1" as private documents, which were not
duly authenticated on the witness stand by a competent witness,
are essentially hearsay in nature that have no probative value.
Therefore, it is obvious that plaintiffs-appellees failed to prove
that they are the widow and son of the late Christian Harper.
Plaintiffs-appellees make the following counter
arguments, viz., (a) Exhibit "Q-1", the Marriage Certificate of Ellen
Johanne Harper and Christian Fredrik Harper, was issued by the
Office of the Vicar of Ullern with a statement that "this certificate
is a transcript from the Register of Marriage of Ullern Church."
The contents of Exhibit "Q-1" were translated by the Government
of the Kingdom of Norway, through its authorized translator, into
English and authenticated by the Royal Ministry of Foreign Affairs
of Norway, which in turn, was also authenticated by the Consul,
Embassy of the Republic of the Philippines in Stockholm,
Sweden; (b) Exhibit "Q", the Birth Certificate of Jonathan
Christopher Harper, was issued and signed by the Registrar of
the Kingdom of Norway, as authenticated by the Royal Ministry of
Foreign Affairs of Norway, whose signature was also
authenticated by the Consul, Embassy of the Republic of the
Philippines in Stockholm, Sweden; and (c) Exhibit "R-1", the
Probate Court Certificate was also authenticated by the Royal
Ministry of Foreign Affairs of Norway, whose signature was also
authenticated by the Consul, Embassy of the Republic of the
Philippines in Stockholm, Sweden.  of the Republic of the Philippines in Stockholm, Sweden to the
They further argue that since Exhibit "Q-1", Marriage
Certificate, was issued by the vicar or parish priest, the legal
custodian of parish records, it is considered as an exception to
the hearsay rule. As for Exhibit "R-1", the Probate Court
Certificate, while the document is indeed a translation of the
certificate, it is an official certification, duly confirmed by the
Government of the Kingdom of Norway; its contents were lifted by
the Government Authorized Translator from the official record
and thus, a written official act of a foreign sovereign country.
WE rule for plaintiffs-appellees.
The Revised Rules of Court provides that public
documents may be evidenced by a copy attested by the officer
having the legal custody of the record. The attestation must state,
in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be
under the official seal of the attesting officer, if there be any, or if
he be the clerk of a court having a seal, under the seal of such
court.
If the record is not kept in the Philippines, the attested
copy must be accompanied with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of the
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.
The documents involved in this case are all kept in
Norway. These documents have been authenticated by the Royal
Norwegian Ministry of Foreign Affairs; they bear the official seal
of the Ministry and signature of one, Tanja Sorlie. The documents
are accompanied by an Authentication by the Consul, Embassy
effect that, Tanja Sorlie is duly authorized to legalize official
documents for the Ministry.
Exhibits "Q" and "R" are extracts of the register of births
of both Jonathan Christopher Harper and the late Christian
Fredrik Harper, respectively, wherein the former explicitly
declares that Jonathan Christopher is the son of Christian Fredrik
and Ellen Johanne Harper. Said documents bear the signature of
the keeper, Y. Ayse B. Nordal with the official seal of the Office of
43 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
the Registrar of Oslo, and the authentication of Tanja Sorlie of the
Royal Ministry of Foreign Affairs, Oslo, which were further
authenticated by Philippine Consul Marian Jocelyn R. Tirol. In
addition, the latter states that said documents are the birth
certificates of Jonathan Christopher Harper and Christian Fredrik
Harper issued by the Registrar Office of Oslo, Norway on March
23, 2004.
Exhibits "Q-1", on the other hand, is the Marriage
Certificate of Christian Fredrik Harper and Ellen Johanne Harper
issued by the vicar of the Parish of Ullern while Exhibit "R-1" is
the Probate Court Certificate from the Oslo Probate Court,
naming Ellen Johanne Harper and Jonathan Christopher Harper
as the heirs of the deceased Christian Fredrik Harper. The
documents are certified true translations into English of the
transcript of the said marriage certificate and the probate court
certificate. They were likewise signed by the authorized
government translator of Oslo with the seal of his office; attested
by Tanja Sorlie and further certified by our own Consul.
In view of the foregoing, WE conclude that plaintiffs-
appellees had substantially complied with the requirements set
forth under the rules. WE would also like to stress that plaintiffs-
appellees herein are residing overseas and are litigating locally
through their representative. While they are not excused from
complying with our rules, WE must take into account the
attendant reality that these overseas litigants communicate with
their representative and counsel via long distance
communication. Add to this is the fact that compliance with the
requirements on attestation and authentication or certification is
no easy process and completion thereof may vary depending on
different factors such as the location of the requesting party from
the consulate and the office of the record custodian, the volume
of transactions in said offices and even the mode of sending
these documents to the Philippines. With these circumstances
under consideration, to OUR minds, there is every reason for an
equitable and relaxed application of the rules on the issuance of
the required attestation from the custodian of the documents to
plaintiffs-appellees' situation. Besides, these questioned
documents were duly signed by the officers having custody of the
same. 11 HAaDTE
Petitioner assails the CA's ruling that respondents substantially complied
with the rules on the authentication of the proofs of marriage and filiation set by
Section 24 and Section 25 of Rule 132 of the  Rules of Court  when they presented
Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1, because the legal custodian did
not duly attest that Exhibit Q-1 and Exhibit R-1 were the correct copies of the
originals on file, and because no certification accompanied the documents stating
that "such officer has custody of the originals." It contends that respondents did not
competently prove their being Harper's surviving heirs by reason of such documents
being hearsay and incompetent.
Petitioner's challenge against respondents' documentary evidence on
marriage and heirship is not well-taken.
Section 24 and Section 25 of Rule 132 provide:
Section 24. Proof of official record.  — The record of
public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, 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, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be
made by a secretary of the 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. 
Section 25. What attestation of copy must state.  —
Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation must state, in substance,
44 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
that the copy is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of such court.
Although Exhibit Q, 12 Exhibit Q-1, 13 Exhibit R 14 and Exhibit R-1 15 were
not attested by the officer having the legal custody of the record or by his deputy in
the manner required in Section 25 of Rule 132, and said documents did not comply
with the requirement under Section 24 of Rule 132 to the effect that if the record
was not kept in the Philippines a certificate of the person having custody must
accompany the copy of the document that was duly attested stating that such
person had custody of the documents, the deviation was not enough reason to
reject the utility of the documents for the purposes they were intended to
serve. TAHcCI
Exhibit Q and Exhibit R were extracts from the registry of births of Oslo,
Norway issued on March 23, 2004 and signed by Y. Ayse B. Nordal, Registrar, and
corresponded to respondent Jonathan Christopher Harper and victim Christian
Fredrik Harper, respectively. 16 Exhibit Q explicitly stated that Jonathan was the son
of Christian Fredrik Harper and Ellen Johanne Harper, while Exhibit R attested to
the birth of Christian Fredrik Harper on December 4, 1968. Exhibit Q and Exhibit R
were authenticated on March 29, 2004 by the signatures of Tanja Sorlie of the Royal
Ministry of Foreign Affairs of Norway as well as by the official seal of that office. In
turn, Consul Marian Jocelyn R. Tirol of the Philippine Consulate in Stockholm,
Sweden authenticated the signatures of Tanja Sorlie and the official seal of the
Royal Ministry of Foreign Affairs of Norway on Exhibit Q and Exhibit R, explicitly
certifying to the authority of Tanja Sorlie "to legalize official documents for the Royal
Ministry of Foreign Affairs of Norway." 17 DIAcTE
Exhibit Q-1, 18 the Marriage Certificate of Ellen Johanne Clausen Harper
and Christian Fredrik Harper, contained the following data, namely: (a) the parties
were married on June 29, 1996 in Ullern Church; and (b) the certificate was issued
by the Office of the Vicar of Ullern on June 29, 1996. Exhibit Q-1 was similarly
authenticated by the signature of Tanja Sorlie of the Royal Ministry of Foreign
Affairs of Norway, with the official seal of that office. Philippine Consul Tirol again
expressly certified to the capacity of Sorlie "to legalize official documents for the
Royal Ministry of Foreign Affairs of Norway," 19 and further certified that the
document was a true translation into English of a transcript of a Marriage Certificate
issued to Christian Frederik Harper and Ellen Johanne Clausen by the Vicar of the
Parish of Ullern on June 29, 1996.
Exhibit R-1, 20 a Probate Court certificate issued by the Oslo Probate Court
on February 18, 2000 through Morten Bolstad, its Senior Executive Officer, was also
authenticated by the signature of Tanja Sorlie and with the official seal of the Royal
Ministry of Foreign Affairs of Norway. As with the other documents, Philippine
Consul Tirol explicitly certified to the capacity of Sorlie "to legalize official documents
for the Royal Ministry of Foreign Affairs of Norway," and further certified that the
document was a true translation into English of the Oslo Probate Court certificate
issued on February 18, 2000 to the effect that Christian Fredrik Harper, born on
December 4, 1968, had reportedly died on November 6, 1999. 21
The Oslo Probate Court certificate recited that both Ellen Johanne Harper
and Christopher S. Harper were Harper's heirs, to wit: 
The above names surviving spouse has accepted responsibility
for the commitments of the deceased in accordance with the
provisions of Section 78 of the Probate Court Act (Norway),
and the above substitute guardian has agreed to the private
division of the estate.
The following heir and substitute guardian will undertake the
private division of the estate:
Ellen Johanne Harper
Christopher S. Harper
This probate court certificate relates to the entire estate.
Oslo Probate Court, 18 February 2000. 22
The official participation in the authentication process of Tanja Sorlie of the
Royal Ministry of Foreign Affairs of Norway and the attachment of the official seal of
that office on each authentication indicated that Exhibit Q, Exhibit R, Exhibit Q-1 and
Exhibit R-1 were documents of a public nature in Norway, not merely private
documents. It cannot be denied that based on Philippine Consul Tirol's official
authentication, Tanja Sorlie was "on the date of signing, duly authorized to
45 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

legalize official documents for the Royal Ministry of Foreign Affairs of Norway."
Without a showing to the contrary by petitioner, Exhibit Q, Exhibit R, Exhibit Q-1 and
Exhibit R-1 should be presumed to be themselves official documents under
Norwegian law, and admissible as  prima facie evidence of the truth of their contents
under Philippine law. IHCSTE
At the minimum, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1
substantially met the requirements of Section 24 and Section 25 of Rule 132 as a
condition for their admission as evidence in default of a showing by petitioner that
the authentication process was tainted with bad faith. Consequently, the objective of
ensuring the authenticity of the documents prior to their admission as evidence was
substantially achieved. In Constantino-David v. Pangandaman-Gania , 23 the Court
has said that substantial compliance, by its very nature, is actually inadequate
observance of the requirements of a rule or regulation that are waived under
equitable circumstances in order to facilitate the administration of justice, there
being no damage or injury caused by such flawed compliance. 
The Court has further said in Constantino-David v. Pangandaman-
Gania that the focus in every inquiry on whether or not to accept substantial
compliance is always on the presence of equitable conditions to administer justice
effectively and efficiently without damage or injury to the spirit of the legal
obligation. 24 There are, indeed, such equitable conditions attendant here, the
foremost of which is that respondents had gone to great lengths to submit the
documents. As the CA observed, respondents' compliance with the requirements on
attestation and authentication of the documents had not been easy; they had to
contend with many difficulties (such as the distance of Oslo, their place of
residence, from Stockholm, Sweden, where the Philippine Consulate had its office;
the volume of transactions in the offices concerned; and the safe transmission of the
documents to the Philippines). 25 Their submission of the documents should be
presumed to be in good faith because they did so in due course. It would be
inequitable if the sincerity of respondents in obtaining and submitting the documents
despite the difficulties was ignored.
The principle of substantial compliance recognizes that exigencies and
situations do occasionally demand some flexibility in the rigid application of the rules
of procedure and the laws. 26 That rules of procedure may be mandatory in form
and application does not forbid a showing of substantial compliance under justifiable
circumstances, 27 because substantial compliance does not equate to a disregard
of basic rules. For sure, substantial compliance and strict adherence are not always
incompatible and do not always clash in discord. The power of the Court to suspend
its own rules or to except any particular case from the operation of the rules
whenever the purposes of justice require the suspension cannot be
challenged. 28 In the interest of substantial justice, even procedural rules of the
most mandatory character in terms of compliance are frequently relaxed. Similarly,
the procedural rules should definitely be liberally construed if strict adherence to
their letter will result in absurdity and in manifest injustice, or where the merits of a
party's cause are apparent and outweigh considerations of non-compliance with
certain formal requirements. 29 It is more in accord with justice that a party-litigant is
given the fullest opportunity to establish the merits of his claim or defense than for
him to lose his life, liberty, honor or property on mere technicalities. Truly, the rules
of procedure are intended to promote substantial justice, not to defeat it, and should
not be applied in a very rigid and technical sense. 30DaAIHC
Petitioner urges the Court to resolve the apparent conflict between the
rulings in Heirs of Pedro Cabais v. Court of Appeals  31 (Cabais) and in Heirs of
Ignacio Conti v. Court of Appeals  32 (Conti) establishing filiation through a
baptismal certificate. 33
Petitioner's urging is not warranted, both because there is no conflict
between the rulings in Cabais  and Conti, and because neither Cabais nor Conti  is
relevant herein.
In Cabais, the main issue was whether or not the CA correctly affirmed the
decision of the RTC that had relied mainly on the baptismal certificate of Felipa C.
Buesa to establish the parentage and filiation of Pedro Cabais. The Court held that
the petition was meritorious, stating: 
A birth certificate, being a public document, offers  prima
facie  evidence of filiation and a high degree of proof is needed to
overthrow the presumption of truth contained in such public
document. This is pursuant to the rule that entries in official
records made in the performance of his duty by a public officer
are prima facie evidence of the facts therein stated. The
evidentiary nature of such document must, therefore, be
46 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

sustained in the absence of strong, complete and conclusive proofs that private respondents are collateral heirs of Lourdes
proof of its falsity or nullity. Sampayo.
On the contrary, a baptismal certificate is a private xxx xxx xxx
document, which, being hearsay, is not a conclusive proof of
Under Art. 172 of the Family Code, the filiation of
filiation. It does not have the same probative value as a record of
legitimate children shall be proved by any other means allowed
birth, an official or public document. In US v. Evangelista, this
by the Rules of Court and special laws, in the absence of a
Court held that church registers of births, marriages, and deaths
record of birth or a parent's admission of such legitimate filiation
made subsequent to the promulgation of General Orders No. 68
in a public or private document duly signed by the parent. Such
and the passage of Act No. 190 are no longer public writings, nor
other proof of one's filiation may be a baptismal certificate, a
are they kept by duly authorized public officials. Thus, in this
judicial admission, a family Bible in which his name has been
jurisdiction, a certificate of baptism such as the one herein
entered, common reputation respecting his pedigree, admission
controversy is no longer regarded with the same evidentiary
by silence, the testimonies of witnesses and other kinds of proof
value as official records of birth. Moreover, on this score,
admissible under Rule 130 of the Rules of Court. By analogy, this
jurisprudence is consistent and uniform in ruling that the
method of proving filiation may also be utilized in the instant
canonical certificate of baptism is not sufficient to prove
case. 
recognition. 34
Public documents are the written official acts, or records
The Court sustained the Cabais  petitioners' stance that the RTC had
of the official act of the sovereign authority, official bodies and
apparently erred in relying on the baptismal certificate to establish filiation, stressing
tribunals, and public officers, whether of the Philippines, or a
the baptismal certificate's limited evidentiary value as proof of filiation inferior to that
foreign country. The baptismal certificates presented in evidence
of a birth certificate; and declaring that the baptismal certificate did not attest to the
by private respondents are public documents. Parish priests
veracity of the statements regarding the kinsfolk of the one baptized. Nevertheless,
continue to be the legal custodians of the parish records and are
the Court ultimately ruled that it was respondents' failure to present the birth
authorized to issue true copies, in the form of certificates, of the
certificate, more than anything else, that lost them their case, stating that: "The
entries contained therein.
unjustified failure to present the birth certificate instead of the baptismal certificate
now under consideration or to otherwise prove filiation by any other means The admissibility of baptismal certificates offered by
recognized by law weigh heavily against respondents." 35 cDCHaS Lydia S. Reyes, absent the testimony of the officiating priest or
the official recorder, was settled in  People v. Ritter, citing U.S. v.
In Conti, the Court affirmed the rulings of the trial court and the CA to the
effect that the Conti  respondents were able to prove by preponderance of evidence
de Vera (28 Phil. 105 [1914], thus: EcAISC
their being the collateral heirs of deceased Lourdes Sampayo. The Contipetitioners . . . . The entries made in the Registry Book may
disagreed, arguing that baptismal certificates did not prove the filiation of collateral be considered as entries made in the course of business
relatives of the deceased. Agreeing with the CA, the Court said: under Section 43 of Rule 130, which is an exception to
the hearsay rule. The baptisms administered by the
We are not persuaded. Altogether, the documentary and
church are one of its transactions in the exercise of
testimonial evidence submitted . . . are competent and adequate
47 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
ecclesiastical duties and recorded in the book of the
church during this course of its business.
It may be argued that baptismal certificates are evidence
only of the administration of the sacrament, but in this case, there
were four (4) baptismal certificates which, when taken together,
uniformly show that Lourdes, Josefina, Remedios and Luis had
the same set of parents, as indicated therein. Corroborated by
the undisputed testimony of Adelaida Sampayo that with the
demise of Lourdes and her brothers Manuel, Luis and sister
Remedios, the only sibling left was Josefina Sampayo Reyes,
such baptismal certificates have acquired evidentiary weight to
prove filiation. 36
Obviously, Conti  did not treat a baptismal certificate, standing alone, as
sufficient to prove filiation; on the contrary, Conti  expressly held that a baptismal
certificate had evidentiary value to prove filiation if considered alongside other
evidence of filiation. As such, a baptismal certificate alone is not sufficient to resolve
a disputed filiation. 
Unlike Cabais  and Conti, this case has respondents
presenting several  documents, like the birth certificates of Harper and respondent
Jonathan Harper, the marriage certificate of Harper and Ellen Johanne Harper, and
the probate court certificate, all of which were presumably regarded as public
documents under the laws of Norway. Such documentary evidence sufficed to
competently establish the relationship and filiation under the standards of our  Rules
of Court.
II
Petitioner was liable due to its own negligence
Petitioner argues that respondents failed to prove its negligence; that
Harper's own negligence in allowing the killers into his hotel room was the proximate
cause of his own death; and that hotels were not insurers of the safety of their
guests. ACTESI
The CA resolved petitioner's arguments thuswise:
Defendant-appellant contends that the pivotal issue is
whether or not it had committed negligence and corollarily,
whether its negligence was the immediate cause of the death of
Christian Harper. In its defense, defendant-appellant mainly avers
that it is equipped with adequate security system as follows: (1)
keycards or vingcards for opening the guest rooms, (2) two CCTV
monitoring cameras on each floor of the hotel and (3) roving
guards with handheld radios, the number of which depends on
the occupancy rate of the hotel. Likewise, it reiterates that the
proximate cause of Christian Harper's death was his own
negligence in inviting to his room the two (2) still unidentified
suspects. 
Plaintiffs-appellees in their Brief refute, in that, the liability
of defendant-appellant is based upon the fact that it was in a
better situation than the injured person, Christian Harper, to
foresee and prevent the happening of the injurious occurrence.
They maintain that there is no dispute that even prior to the
untimely demise of Christian Harper, defendant-appellant was
duly forewarned of its security lapses as pointed out by its Chief
Security Officer, Col. Rodrigo De Guzman, who recommended
that one roving guard be assigned on each floor of the hotel
considering the length and shape of the corridors. They posit that
defendant-appellant's inaction constitutes negligence.
This Court finds for plaintiffs-appellees.
As the action is predicated on negligence, the relevant
law is Article 2176 of the 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." EDIaSH
48 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

Negligence is defined as the omission to do something retired police officer and had vast experience in security
which a reasonable man, guided by those considerations which jobs. He was likewise a member of the elite Presidential
ordinarily regulate the conduct of human affairs, would do, or the Security Group. ASHICc
doing of something which a prudent and reasonable man would
He testified that upon taking over the job as the
not do. The Supreme Court likewise ruled that negligence is want
chief of the security force of the hotel, he made an
of care required by the circumstances. It is a relative or
assessment of the security situation. Col. De Guzman
comparative, not an absolute, term and its application depends
was not satisfied with the security set-up and told the
upon the situation of the parties and the degree of care and
hotel management of his desire to improve it. In his
vigilance which the circumstances reasonably require. In
testimony, De Guzman testified that at the time he took
determining whether or not there is negligence on the part of the
over, he noticed that there were few guards in the
parties in a given situation, jurisprudence has laid down the
elevated portion of the hotel where the rooms were
following test: Did defendant, in doing the alleged negligent act,
located. The existing security scheme then was one
use that reasonable care and caution which an ordinarily prudent
guard for 3 or 4 floors. He likewise testified that he
person would have used in the same situation? If not, the person
recommended to the hotel management that at least one
is guilty of negligence. The law, in effect, adopts the standard
guard must be assigned per floor especially considering
supposed to be supplied by the imaginary conduct of the
that the hotel has a long "L-shaped" hallway, such that
discreet pater familias of the Roman law. 
one cannot see both ends of the hallway. He further
The test of negligence is objective. WE measure the act opined that "even one guard in that hallway is not
or omission of the tortfeasor with a perspective as that of an enough because of the blind portion of the hallway."
ordinary reasonable person who is similarly situated. The test, as
On cross-examination, Col. De Guzman testified
applied to the extant case, is whether or not defendant-appellant,
that the security of the hotel was adequate at the time the
under the attendant circumstances, used that reasonable care
crime occurred because the hotel was not fully booked.
and caution which an ordinary reasonable person would have
He qualified his testimony on direct in that his
used in the same situation.
recommendation of one guard per floor is the "ideal" set-
WE rule in the negative. up when the hotel is fully-booked.
In finding defendant-appellant remiss in its duty of Be that as it may, it must be noted that Col. De
exercising the required reasonable care under the circumstances, Guzman also testified that the reason why the hotel
the court a quo reasoned-out, to wit: management disapproved his recommendation was that
the hotel was not doing well. It is for this reason that the
"Of the witnesses presented by plaintiffs to prove
hotel management did not heed the recommendation of
its (sic) case, the only one with competence to testify on
Col. De Guzman, no matter how sound the
the issue of adequacy or inadequacy of security is Col.
recommendation was, and whether the hotel is fully-
Rodrigo De Guzman who was then the Chief Security
booked or not. It was a business judgment call on the
Officer of defendant hotel for the year 1999. He is a
part of the defendant.
49 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Plaintiffs anchor its (sic) case on our law on
quasi-delicts.  blood.
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 quasi-delict.
Liability on the part of the defendant is based
upon the fact that he was in a better situation than the
injured person to foresee and prevent the happening of
the injurious occurrence. HTCIcE
There is no dispute that even prior to the
untimely demise of Mr. Harper, defendant was duly
forewarned of the security lapses in the hotel. Col. De
Guzman was particularly concerned with the security of
the private areas where the guest rooms are. He wanted
not just one roving guard in every three or four floors. He
insisted there must be at least one in each floor
considering the length and the shape of the corridors.
The trained eyes of a security officer was (sic) looking at
that deadly scenario resulting from that wide security
breach as that which befell Christian Harper.
The theory of the defense that the malefactor/s
was/were known to Harper or was/were visitors of Harper
and that there was a shindig among [the] three deserves
scant consideration.
The NBI Biology Report (Exhs. "C" & "D") and
the Toxicology Report (Exh. "E") belie the defense theory
of a joyous party between and among Harper and the
unidentified malefactor/s. Based on the Biology Report,
Harper was found negative of prohibited and regulated
drugs. The Toxicology Report likewise revealed that the
deceased was negative of the presence of alcohol in his
 
The defense even suggests that the malefactor/s
gained entry into the private room of Harper either
because Harper allowed them entry by giving them
access to the vingcard or because Harper allowed them
entry by opening the door for them, the usual gesture of
a room occupant to his visitors.
While defendant's theory may be true, it is more
likely, under the circumstances obtaining that the
malefactor/s gained entry into his room by simply
knocking at Harper's door and the latter opening it
probably thinking it was hotel personnel, without an
inkling that criminal/s could be in the premises.
The latter theory is more attuned to the dictates
of reason. If indeed the female "visitor" is known to or a
visitor of Harper, she should have entered the room
together with Harper. It is quite unlikely that a supposed
"visitor" would wait three minutes to be with a guest when
he/she could go with the guest directly to the room. The
interval of three minutes in Harper's entry and that of the
alleged female visitor belies the "theory of
acquaintanceship". It is most likely that the female
"visitor" was the one who opened the door to the male
"visitor", undoubtedly, a co-conspirator. AEHCDa
In any case, the ghastly incident could have
been prevented had there been adequate security in
each of the hotel floors. This, coupled with the earlier
recommendation of Col. De Guzman to the hotel
management to act on the security lapses of the hotel,
raises the presumption that the crime was foreseeable.
50 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Clearly, defendant's inaction constitutes
negligence or want of the reasonable care demanded of
it in that particular situation.
In a case, the Supreme Court defined negligence
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
person suffers injury.
Negligence is 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 impose. Where the
danger is great, a high degree of care is
necessary. TCDHaE
Moreover, in applying the premises liability rule
in the instant case as it is applied in some
jurisdiction (sic) in the United States, it is enough that
guests are injured while inside the hotel premises to
make the hotelkeeper liable. With great caution should
the liability of the hotelkeeper be enforced when a guest
died inside the hotel premises.
It also bears stressing that there were prior
incidents that occurred in the hotel which should have
forewarned the hotel management of the security lapses
of the hotel. As testified to by Col. De Guzman, "there
were 'minor' incidents" (loss of items) before the
happening of the instant case.
These "minor" incidents may be of little
significance to the hotel, yet relative to the instant case, it
speaks volume. This should have served as a caveat that
the hotel security has lapses.
Makati Shangri-La Hotel, to stress, is a five-star
hotel. The "reasonable care" that it must exercise for the
safety and comfort of its guests should be commensurate
with the grade and quality of the accommodation it offers.
If there is such a thing as "five-star hotel security", the
guests at Makati Shangri-La surely deserves just that! 
When one registers (as) a guest of a hotel, he
makes the establishment the guardian of his life and his
personal belongings during his stay. It is a standard
procedure of the management of the hotel to screen
visitors who call on their guests at their rooms. The
murder of Harper could have been avoided had the
security guards of the Shangri-La Hotel in Makati dutifully
observed this standard procedure."
WE concur.
Well settled is the doctrine that "the findings of fact by the
trial court are accorded great respect by appellate courts and
should not be disturbed on appeal unless the trial court has
overlooked, ignored, or disregarded some fact or circumstances
of sufficient weight or significance which, if considered, would
alter the situation." After a conscientious sifting of the records,
defendant-appellant fails to convince US to deviate from this
doctrine.
It could be gleaned from findings of the trial court that its
conclusion of negligence on the part of defendant-appellant is
grounded mainly on the latter's inadequate hotel security, more
particularly on the failure to deploy sufficient security personnel or
roving guards at the time the ghastly incident happened. 
51 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
A review of the testimony of Col. De Guzman reveals that
on direct examination he testified that at the time he assumed his
position as Chief Security Officer of defendant-appellant, during
the early part of 1999 to the early part of 2000, he noticed that
some of the floors of the hotel were being guarded by a few
guards, for instance, 3 or 4 floors by one guard only on a roving
manner. He then made a recommendation that the ideal-set up
for an effective security should be one guard for every floor,
considering that the hotel is L-shaped and the ends of the
hallways cannot be seen. At the time he made the
recommendation, the same was denied, but it was later on
considered and approved on December 1999 because of the
Centennial Celebration.
On cross-examination, Col. De Guzman confirmed that
after he took over as Chief Security Officer, the number of
security guards was increased during the first part of December
or about the last week of November, and before the incident
happened, the security was adequate. He also qualified that as to
his direct testimony on "ideal-set up", he was referring to one
guard for every floor if the hotel is fully booked. At the time he
made his recommendation in the early part of 1999, it was
disapproved as the hotel was not doing well and it was not fully
booked so the existing security was adequate enough. He further
explained that his advice was observed only in the late November
1999 or the early part of December 1999. IATHaS
It could be inferred from the foregoing declarations of the
former Chief Security Officer of defendant-appellant that the latter
was negligent in providing adequate security due its guests. With
confidence, it was repeatedly claimed by defendant-appellant that
it is a five-star hotel. Unfortunately, the record failed to show that
at the time of the death of Christian Harper, it was exercising
reasonable care to protect its guests from harm and danger by
providing sufficient security commensurate to it being one of the
finest hotels in the country. In so concluding, WE are reminded of
the Supreme Court's enunciation that the hotel business like the
common carrier's business is imbued with public interest.
Catering to the public, hotelkeepers are bound to provide not only
lodging for hotel guests but also security to their persons and
belongings. The twin duty constitutes the essence of the
business.
It is clear from the testimony of Col. De Guzman that his
recommendation was initially denied due to the fact that the
business was then not doing well. The "one guard, one floor"
recommended policy, although ideal when the hotel is fully-
booked, was observed only later in November 1999 or in the
early part of December 1999, or needless to state, after the
murder of Christian Harper. The apparent security lapses of
defendant-appellant were further shown when the male culprit
who entered Christian Harper's room was never checked by any
of the guards when he came inside the hotel. As per interview
conducted by the initial investigator, PO3 Cornelio Valiente to the
guards, they admitted that nobody know that said man entered
the hotel and it was only through the monitor that they became
aware of his entry. It was even evidenced by the CCTV that
before he walked to the room of the late Christian Harper, said
male suspect even looked at the monitoring camera. Such act of
the man showing wariness, added to the fact that his entry to the
hotel was unnoticed, at an unholy hour, should have aroused
suspicion on the part of the roving guard in the said floor, had
there been any. Unluckily for Christian Harper, there was none at
that time. 
Proximate cause is 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. More comprehensively,
proximate cause is that cause 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
52 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
having a close causal connection with its immediate predecessor,
the final event in the chain immediately effecting the injury as
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.
Defendant-appellant's contention that it was Christian
Harper's own negligence in allowing the malefactors to his room
that was the proximate cause of his death, is untenable. To
reiterate, defendant-appellant is engaged in a business imbued
with public interest, ergo, it is bound to provide adequate security
to its guests. As previously discussed, defendant-appellant failed
to exercise such reasonable care expected of it under the
circumstances. Such negligence is the proximate cause which set
the chain of events that led to the eventual demise of its guest.
Had there been reasonable security precautions, the same could
have saved Christian Harper from a brutal death. IEaATD
The Court concurs entirely with the findings and conclusions of the CA,
which the Court regards to be thorough and supported by the records of the trial.
Moreover, the Court cannot now review and pass upon the uniform findings of
negligence by the CA and the RTC because doing so would require the Court to
delve into and revisit the factual bases for the finding of negligence, something fully
contrary to its character as not a trier of facts. In that regard, the factual findings of
the trial court that are supported by the evidence on record, especially when
affirmed by the CA, are conclusive on the Court. 37 Consequently, the Court will not
review unless there are exceptional circumstances for doing so, such as the
following:
(a)  When the findings are grounded entirely on speculation,
surmises or conjectures;
(b)  When the inference made is manifestly mistaken, absurd or
impossible;  visible from one or the other end; and that he had recommended to management to
(c)  When there is grave abuse of discretion;
(d)  When the judgment is based on a misapprehension of facts;
(e)  When the findings of facts are conflicting;
(f)  When in making its findings the Court of Appeals went beyond
the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(g)  When the findings are contrary to the trial court;
(h)  When the findings are conclusions without citation of specific
evidence on which they are based; 
(i)  When the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondent;
(j)  When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence
on record; and
(k)  When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if
properly considered, would justify a different
conclusion. 38
None of the exceptional circumstances obtains herein. Accordingly, the
Court cannot depart from or disturb the factual findings on negligence of petitioner
made by both the RTC and the CA. 39 HITAEC
Even so, the Court agrees with the CA that petitioner failed to provide the
basic and adequate security measures expected of a five-star hotel; and that its
omission was the proximate cause of Harper's death.
The testimony of Col. De Guzman revealed that the management practice
prior to the murder of Harper had been to deploy only one security or roving guard
for every three or four floors of the building; that such ratio had not been enough
considering the L-shape configuration of the hotel that rendered the hallways not
53 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

post a guard for each floor, but his recommendation had been disapproved because Q: Would you agree with me that even if the hotel is half-filled,
the hotel "was not doing well" at that particular time. 40 there is no need to increase the guards because there
were only few customers?
Probably realizing that his testimony had weakened petitioner's position in
the case, Col. De Guzman soon clarified on cross-examination that petitioner had A: I think so.
seen no need at the time of the incident to augment the number of guards due to the
Q: So you will agree with me that each floor should be maintained
hotel being then only half-booked. Here is how his testimony went: HSaCcE
by one security guard if the rooms are filled up or
ATTY. MOLINA: occupied?
I just forgot one more point, Your Honor please. Was there ever a A: Yes sir. IDSaAH
time, Mr. Witness, that your recommendation to post a
Q: Now, you even testified that from January 1999 to November
guard in every floor ever considered and approved by the
1999 thereof, only minor incidents were involved?
hotel?
A: Yes sir.
A: Yes, Sir.
Q: So it would be correct to say that the security at that time in
Q: When was this?
February was adequate?
A: That was on December 1999 because of the Centennial
A: I believe so.
Celebration when the hotel accepted so many guests
wherein most of the rooms were fully booked and I Q: Even up to November when the incident happened for that
recommended that all the hallways should be guarded by same reason, security was adequate?
one guard. 41
A: Yes, before the incident.
xxx xxx xxx
Q: Now, you testified on direct that the hotel posted one guard
ATTY. COSICO: each floor?
Q: So at that time that you made your recommendation, the hotel A: Yes sir. 
was half-filled. 
Q: And it was your own recommendation?
A: Maybe.
A: Yes, because we are expecting that the hotel will be filled up.
Q: And even if the hotel is half-filled, your recommendation is that
each floor shall be maintained by one security guard per Q: In fact, the hotel was fully booked?
floors? A: Yes sir. 42
A: Yes sir. Petitioner would thereby have the Court believe that Col. De Guzman's
initial recommendation had been rebuffed due to the hotel being only half-booked;
that there had been no urgency to adopt a one-guard-per-floor policy because
54 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

security had been adequate at that time; and that he actually meant by his
statement that "the hotel was not doing well" that the hotel was only half-booked.
We are not convinced. CTSDAI
The hotel business is imbued with public interest. Catering to the public,
hotelkeepers are bound to provide not only lodging for their guests but also security
to the persons and belongings of their guests. The twin duty constitutes the essence
of the business. 43 Applying by analogy Article 2000, 44 Article 2001 45 and Article
2002 46 of the Civil Code (all of which concerned the hotelkeepers' degree of care
and responsibility as to the personal effects of their guests), we hold that there is
much greater reason to apply the same if not greater degree of care and
responsibility when the lives and personal safety of their guests are involved.
Otherwise, the hotelkeepers would simply stand idly by as strangers have
unrestricted access to all the hotel rooms on the pretense of being visitors of the
guests, without being held liable should anything untoward befall the unwary guests.
That would be absurd, something that no good law would ever envision.
In fine, the Court sees no reversible error on the part of the CA.
WHEREFORE, the Court AFFIRMS the judgment of the Court of Appeals;
and ORDERS petitioner to pay the costs of suit. 
SO ORDERED.
||| (Makati Shangri-La Hotel and Resort, Inc. v. Harper, G.R. No. 189998, [August
29, 2012], 693 PHIL 596-629)
55 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
SECOND DIVISION
[G.R. No. 180764. January 19, 2010.]
TITUS B. VILLANUEVA, petitioner, vs. EMMA M.
ROSQUETA, respondent.
DECISION
ABAD, J  p:
This case is about the right to recover damages for alleged abuse of
right committed by a superior public officer in preventing a subordinate from
doing her assigned task and being officially recognized for it.  to be issued on the occasion, had a space where Rosqueta's picture was
The Facts and the Case
Respondent Emma M. Rosqueta (Rosqueta), formerly Deputy
Commissioner of the Revenue Collection and Monitoring Group of the Bureau of
Customs (the Bureau), tendered her courtesy resignation from that post on
January 23, 2001, shortly after President Gloria Macapagal-Arroyo assumed
office. But five months later on June 5, 2001, she withdrew her resignation,
claiming that she enjoyed security of tenure and that she had resigned against
her will on orders of her superior. 1
Meantime, on July 13, 2001 President Arroyo appointed Gil Valera
(Valera) to respondent Rosqueta's position. Challenging such appointment,
Rosqueta filed a petition for prohibition,  quo warranto, and injunction against
petitioner Titus B. Villanueva (Villanueva), then Commissioner of Customs, the
Secretary of Finance, and Valera with the Regional Trial Court 2 (RTC) of
Manila in Civil Case 01-101539. On August 27, 2001 the RTC issued a
temporary restraining order (TRO), enjoining Villanueva and the Finance
Secretary 3 from implementing Valera's appointment. On August 28, 2001 the
trial court superseded the TRO with a writ of preliminary injunction. 4 DTSIEc
Petitioner Villanueva, Valera, and the Secretary of Finance challenged
the injunction order before the Court of Appeals (CA) in CA-G.R. SP 66070. On
September 14, 2001 the CA issued its own TRO, enjoining the implementation
of the RTC's injunction order. But the TRO lapsed after 60 days and the CA
eventually dismissed the petition before it.
On November 22, 2001 while the preliminary injunction in the  quo
warranto case was again in force, petitioner Villanueva issued Customs
Memorandum Order 40-2001, authorizing Valera to exercise the powers and
functions of the Deputy Commissioner.
During the Bureau's celebration of its centennial anniversary in
February 2002, its special Panorama magazine edition featured all the customs
deputy commissioners, except respondent Rosqueta. The souvenir program,
authorized by the Bureau's Steering Committee headed by petitioner Villanueva
supposed to be but it instead stated that her position was "under litigation."
Meanwhile, the commemorative billboard displayed at the Bureau's main gate
included Valera's picture but not Rosqueta's. 
On February 28, 2002 respondent Rosqueta filed a complaint 5 for
damages before the RTC of Quezon City against petitioner Villanueva in Civil
Case Q-02-46256, alleging that the latter maliciously excluded her from the
centennial anniversary memorabilia. Further, she claimed that he prevented her
from performing her duties as Deputy Commissioner, withheld her salaries, and
refused to act on her leave applications. Thus, she asked the RTC to award her
P1,000,000.00 in moral damages, P500,000.00 in exemplary damages, and
P300,000.00 in attorney's fees and costs of suit.
But the RTC dismissed 6 respondent Rosqueta's complaint, stating that
petitioner Villanueva committed no wrong and incurred no omission that entitled
her to damages. The RTC found that Villanueva had validly and legally replaced
her as Deputy Commissioner seven months before the Bureau's centennial
anniversary.
56 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
But the CA reversed the RTC's decision, 7 holding instead that
petitioner Villanueva's refusal to comply with the preliminary injunction order
issued in the quo warranto case earned for Rosqueta the right to recover moral
damages from him. 8 Citing the abuse of right principle, the RTC said that
Villanueva acted maliciously when he prevented Rosqueta from performing her
duties, deprived her of salaries and leaves, and denied her official recognition
as Deputy Commissioner by excluding her from the centennial anniversary
memorabilia. Thus, the appellate court ordered Villanueva to pay P500,000.00
in moral damages, P200,000.00 in exemplary damages and P100,000.00 in
attorney's fees and litigation expenses. With the denial of his motion for
reconsideration, Villanueva filed this petition for review on certiorari under Rule
45. cTESIa
The Issue Presented
The key issue presented in this case is whether or not the CA erred in
holding petitioner Villanueva liable in damages to respondent Rosqueta for
ignoring the preliminary injunction order that the RTC issued in the  quo
warranto case (Civil Case 01-101539), thus denying her of the right to do her
job as Deputy Commissioner of the Bureau and to be officially recognized as
such public officer.
The Court's Ruling
Under the abuse of right principle found in Article 19 of the Civil
Code,  a person must, in the exercise of his legal right or duty, act in good faith.
He would be liable if he instead acts in bad faith, with intent to prejudice
another. Complementing this principle are Articles 20 and 21  of the Civil
Code which grant the latter indemnity for the injury he suffers because of such
abuse of right or duty.  Bureau's centennial anniversary memorabilia. She did not have to endure all
Petitioner Villanueva claims that he merely acted on advice of the Office
of the Solicitor General (OSG) when he allowed Valera to assume the office as
Deputy Commissioner since respondent Rosqueta held the position merely in a
temporary capacity and since she lacked the Career Executive Service eligibility
required for the job.  held in Philippine Commercial International Bank v. Alejandro, 18 moral
But petitioner Villanueva cannot seek shelter in the alleged advice that
the OSG gave him. Surely, a government official of his rank must know that a
preliminary injunction order issued by a court of law had to be obeyed,
especially since the question of Valera's right to replace respondent Rosqueta
had not yet been properly resolved.
That petitioner Villanueva ignored the injunction shows bad faith and
intent to spite Rosqueta who remained in the eyes of the law the Deputy
Commissioner. His exclusion of her from the centennial anniversary
memorabilia was not an honest mistake by any reckoning. Indeed, he withheld
her salary and prevented her from assuming the duties of the position. As the
Court said in Amonoy v. Spouses Gutierrez, 13 a party's refusal to abide by a
court order enjoining him from doing an act, otherwise lawful, constitutes an
abuse and an unlawful exercise of right.
That respondent Rosqueta was later appointed Deputy Commissioner
for another division of the Bureau is immaterial. While such appointment, when
accepted, rendered the quo warranto case moot and academic, it did not have
the effect of wiping out the injuries she suffered on account of petitioner
Villanueva's treatment of her. The damage suit is an independent
action. cCSDTI
The CA correctly awarded moral damages to respondent Rosqueta.
Such damages may be awarded when the defendant's transgression is the
immediate cause of the plaintiff's anguish 14 in the cases specified in Article
2219 15 of the Civil Code.16
Here, respondent Rosqueta's colleagues and friends testified that she
suffered severe anxiety on account of the speculation over her employment
status. 17 She had to endure being referred to as a "squatter" in her workplace.
She had to face inquiries from family and friends about her exclusion from the
these affronts and the angst and depression they produced had Villanueva
abided in good faith by the court's order in her favor. Clearly, she is entitled to
moral damages.
The Court, however, finds the award of P500,000.00 excessive. As it
damages are not a bonanza. They are given to ease the defendant's grief and
57 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

suffering. Moral damages should reasonably approximate the extent of hurt

caused and the gravity of the wrong done. Here, that would be P200,000.00. 
The Court affirms the grant of exemplary damages by way of example
or correction for the public good but, in line with the same reasoning, reduces it
to P50,000.00. Finally, the Court affirms the award of attorney's fees and
litigation expenses but reduces it to P50,000.00.
WHEREFORE, the Court DENIES the petition and AFFIRMSthe
decision of the Court of Appeals dated April 30, 2007 in CA-G.R. CV 85931
with MODIFICATION in that petitioner Titus B. Villanueva is ORDERED to pay
respondent Emma M. Rosqueta the sum of P200,000.00 in moral damages,
P50,000.00 in exemplary damages, and P50,000.00 in attorney's fees and
litigation expenses.
SO ORDERED.
||| (Villanueva v. Rosqueta, G.R. No. 180764, [January 19, 2010], 624 PHIL 330-
337)
58 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
THIRD DIVISION
[G.R. No. 176675. September 15, 2010.]
SPS. ALFREDO BONTILAO and SHERLINA
BONTILAO, petitioners, vs. DR. CARLOS
GERONA, respondent.
DECISION
VILLARAMA, JR., J  p:
Before us is a petition for review on certiorari 1 under Rule 45 of
the 1997 Rules of Civil Procedure, as amended, assailing the June 28, 2006
Decision 2 and January 19, 2007 Resolution 3 of the Court of Appeals (CA) in
CA-G.R. CV No. 00201. The CA had reversed the March 23, 2004 Decision 4 of
the Regional Trial Court (RTC) of Cebu City, Branch 6 and dismissed
petitioners' complaint in Civil Case No. CEB-17822.  complaint for damages against both respondent and Dr. Jabagat in the RTC of
The facts are as follows:
On December 28, 1991, respondent Dr. Carlos Gerona, an orthopedic
surgeon at the Vicente Gullas Memorial Hospital, treated petitioners' son, eight
(8)-year-old Allen Key Bontilao (Allen), for a fractured right wrist. Respondent
administered a "U-splint" and immobilized Allen's wrist with a cast, then sent
Allen home. On June 4, 1992, Allen re-fractured the same wrist and was
brought back to the hospital. The x-ray examination showed a complete fracture
and displacement of the bone, with the fragments overlapping each other.
Respondent performed a closed reduction procedure, with Dr. Vicente Jabagat
(Dr. Jabagat) as the anesthesiologist. Then he placed Allen's arm in a plaster
cast to immobilize it. He allowed Allen to go home after the post reduction x-ray
showed that the bones were properly aligned, but advised Allen's mother,
petitioner Sherlina Bontilao (Sherlina), to bring Allen back for re-tightening of the
cast not later than June 15, 1992.
Allen, however, was brought back to the hospital only on June 22,
1992. By then, because the cast had not been re-tightened, a rotational
deformity had developed in Allen's arm. The x-ray examination showed that the
deformity was caused by a re-displacement of the bone fragments, so it was
agreed that an open reduction surgery will be conducted on June 24, 1992 by
respondent, again with Dr. Jabagat as the anesthesiologist. CacTIE
On the said date, Sherlina was allowed to observe the operation behind
a glass panel. Dr. Jabagat failed to intubate the patient after five (5) attempts so
anesthesia was administered through a gas mask. Respondent asked Dr.
Jabagat if the operation should be postponed given the failure to intubate, but
Dr. Jabagat said that it was alright to proceed. Respondent verified that Allen
was breathing properly before proceeding with the surgery. 5 As respondent
was about to finish the suturing, Sherlina decided to go out of the operating
room to make a telephone call and wait for her son. Later, she was informed
that her son had died on the operating table. The cause of death was "asphyxia
due to congestion and edema of the epiglottis." 6
Aside from criminal and administrative cases, petitioners filed a
Cebu City alleging negligence and incompetence on the part of the doctors. The
documentary evidence and testimonies of several witnesses presented in the
criminal proceedings were offered and admitted in evidence at the RTC.
On March 23, 2004, the RTC decided in favor of the petitioners. It held
that the doctrine of res ipsa loquitur  was applicable in establishing respondent's
liability. According to the RTC, asphyxia or cardiac arrest does not normally
occur in an operation on a fractured bone in the absence of negligence in the
administration of anesthesia and the use of an endotracheal tube. Also, the
instruments used in the administration of anesthesia were all under the
exclusive control of respondent and Dr. Jabagat, and neither Allen nor his
mother could be said to be guilty of contributory negligence. Thus, the trial court
held that respondent and Dr. Jabagat were solidarily liable for they failed to
59 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
prove that they were not negligent. The trial court likewise said that respondent
cannot shift the blame solely to Dr. Jabagat as the fault of the latter is also the
fault of the former, respondent being the attending physician and being equally
in care, custody and control of Allen. 7
Aggrieved, respondent appealed the trial court's decision to the CA. Dr.
Jabagat, for his part, no longer appealed the decision.
On June 28, 2006, the CA reversed the RTC's ruling. It held that the
doctrine of res ipsa loquitur  does not apply for it must be satisfactorily shown
that (1) the accident is of a kind which ordinarily does not occur in the absence
of someone's negligence; (2) the plaintiff was not guilty of contributory conduct;
and (3) the instrumentality which caused the accident was within the control of
the defendant.
The CA held that while it may be true that an Open Reduction and
Internal Fixation or ORIF could not possibly lead to a patient's death unless
somebody was negligent, still what was involved in this case was a surgical
procedure with all risks attendant, including death. As explained by the expert
testimony, unexplained death and mal-occurrence is a possibility in surgical
procedures especially those involving the administration of general anesthesia.
It had also been established in both the criminal and administrative cases
against respondent that Allen's death was the result of the anesthesiologist's
negligence and not his. 8
The CA added that the trial court erred in applying the "captain of the
ship" doctrine to make respondent liable even though he was the lead surgeon.
The CA noted that unlike in Ramos v. Court of Appeals, 9 relied upon by the
trial court, the anesthesiologist was chosen by petitioners and no specific act of
negligence was attributable to respondent. The alleged failure to perform a skin
test and a tracheotomy does not constitute negligence. Tracheotomy is an
emergency procedure, and its performance is a judgment call of the attending
physician as it is another surgical procedure done during instances of failure of
intubation. On the other hand, a skin test for a patient's possible adverse
reaction to the anesthesia to be administered is the anesthesiologist's decision.
The CA also noted that the same anesthesia was previously administered to
Allen and he did not manifest any allergic reaction to it. Finally, unlike in
the Ramos  case, respondent arrived only a few minutes late for the surgery and
he was able to complete the procedure within the estimated time frame of less
than an hour. aSAHCE
Petitioners filed the present petition on the following grounds:
[1] THE COURT OF APPEALS ERRED IN REVERSING THE
DECISION OF THE REGIONAL TRIAL COURT BY
DISMISSING THE COMPLAINT IN SO FAR AS THE
SURGEON, DR. CARLOS GERONA IS CONCERNED
[AFTER] CONCLUDING THAT HE IS NOT SOLIDARILY
LIABLE WITH HIS CO-DEFENDANT, DR. VICENTE
JABAGAT, THE ANESTHESIOLOGIST, IN THE
ABSENCE OF ANY NEGLIGENT ACT ON HIS PART.
[2] THE COURT OF APPEALS ERRED WHEN IT
MISAPPRECIATED ESSENTIAL FACTS OF THE CASE
THAT LED TO ITS FINDINGS THAT DOCTRINE
OF RES IPSA LOQUIT[U]R  AS APPLIED IN THE
RAMOS CASE IS NOT APPLICABLE IN THE INSTANT
CASE. 10
Essentially, the issue before us is whether respondent is liable for
damages for Allen's death.
Petitioners argued that the doctrine of res ipsa loquitur  applies to the
present case because Allen was healthy, fully conscious, coherent, and
ambulant when he went to the hospital to correct a deformed arm. Yet, he did
not survive the operation, which was not even an emergency surgery but a
corrective one. They contend that respondent, being the lead surgeon, should
be held liable for the negligence of the physicians and nurses working with him
during the operation. 
On the other hand, respondent posited that he should not be held
solidarily liable with Dr. Jabagat as they were employed independently from
each other and their services were divided as their best judgment dictated. He
insisted that the captain-of-the-ship doctrine had long been abandoned
especially in this age of specialization. An anesthesiologist and a surgeon are
specialists in their own field and neither one (1) could dictate upon the other.
The CA was correct in finding that the  Ramos  case does not apply to
60 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
respondent. Dr. Jabagat was contracted separately from respondent and was
chosen by petitioner Sherlina. Respondent was only a few minutes late from the
operation and he waited for the signal of the anesthesiologist to start the
procedure. He also determined the condition of Allen before and after the
operation.
We affirm the assailed CA decision.
The trial court erred in applying the doctrine of res ipsa loquitur  to pin
liability on respondent for Allen's death. Res ipsa loquitur  is a rebuttable
presumption or inference that the defendant was negligent. The presumption
only arises upon proof that the instrumentality causing injury was in the
defendant's exclusive control, and that the accident was one (1) which ordinarily
does not happen in the absence of negligence. It is a rule of evidence whereby
negligence of the alleged wrongdoer may be inferred from the mere fact that the
accident happened, provided that the character of the accident and
circumstances attending it lead reasonably to the belief that in the absence of
negligence it would not have occurred and that the thing which caused injury is
shown to have been under the management and control of the alleged
wrongdoer. 11 ITaCEc
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 the defendant, and that the injury was such that in the ordinary
course of things would not happen if reasonable care had been used. 12
However, 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. 13 In malpractice cases, the doctrine is generally
restricted to situations 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. In
other words, as held in Ramos v. Court of Appeals, 14 the real question is
whether or not in the process of the operation, any extraordinary incident or
unusual event outside of the routine performance occurred which is beyond the
regular scope of professional activity in such operations, and which, if
unexplained, would themselves reasonably speak to the average man  as the
negligent cause or causes of the untoward consequence. 
Here, we find that the CA correctly found that petitioners failed to
present substantial evidence of any specific act of negligence on respondent's
part or of the surrounding facts and circumstances which would lead to the
reasonable inference that the untoward consequence was caused by
respondent's negligence. In fact, under the established facts, respondent
appears to have observed the proper amount of care required under the
circumstances. Having seen that Dr. Jabagat failed in the intubation, respondent
inquired from the latter, who was the expert on the matter of administering
anesthesia, whether the surgery should be postponed considering the failure to
intubate. Respondent testified, 
WITNESS:
A - Actually sir, if I may cut short, I'm sorry. I don't know what is
the term of this sir. But what actually, what we had was
that Dr. Jabagat failed in the intubation. He was not able
to insert the tube.
ATTY. PADILLA:
Q - And you noticed that he failed?
A - Yes, sir.
xxx xxx xxx
ATTY. PADILLA:
Q - And you noticed that he failed and still you continued the
surgery, Dr. Gerona?
A - Yes, I continued the surgery.
xxx xxx xxx
COURT:
61 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Q - Did not Dr. Jabagat advise you not to proceed with the
operation because the tube cannot be inserted? DETcAH
A - No, sir. In fact, I was the one who asked him, sir, the tube is
not inserted, shall we postpone this for another date? He
said, it's alright. 15
Respondent further verified that Allen was still breathing by looking at
his chest to check that there was excursion before proceeding with the
surgery. 16 That respondent decided to continue with the surgery even though
there was a failure to intubate also does not tend to establish liability, contrary to
the trial court's ruling. Petitioners failed to present substantial proof that
intubation was an indispensable prerequisite for the operation and that it would
be grave error for any surgeon to continue with the operation under such
circumstances. In fact, the testimony of the expert witness presented by the
prosecution in the criminal proceedings and admitted into evidence at the RTC,
was even to the effect that the anesthesia could be administered by alternative
means such as a mask and that the operation could proceed even without
intubation. 17
There was also no indication in the records that respondent saw or
should have seen that something was wrong as to prompt him to act differently
than he did in this case. The anesthesia used in the operation was the same
anesthesia used in the previous closed reduction procedure, and Allen did not
register any adverse reaction to it. In fact, respondent knows the anesthesia
Ketalar to be safe for children. Dr. Jabagat was also a specialist and more
competent than respondent to determine whether the patient has been properly
anesthetized for the operation, all things considered. Lastly, it appears that Allen
started experiencing difficulty in breathing only after the operation, when
respondent was already about to jot down his post-operation notes in the
adjacent room. Respondent was called back to the operating room after Dr.
Jabagat failed to appreciate a heartbeat on the patient. 18 He acted promptly
and called for other doctors to assist and revive Allen, but to no avail.  2006 and Resolution dated January 19, 2007 of the Court of Appeals in CA-
Moreover, we note that in the instant case, the instrument which caused
the damage or injury was not even within respondent's exclusive management
and control as Dr. Jabagat was exclusively in control and management of the
anesthesia and the endotracheal tube. 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. 19
Here, the respondent could only supervise Dr. Jabagat to make sure
that he was performing his duties. But respondent could not dictate upon Dr.
Jabagat the particular anesthesia to administer, the dosage thereof, or that it be
administered in any particular way not deemed appropriate by Dr. Jabagat.
Respondent's specialization not being in the field of anesthesiology, it would be
dangerous for him to substitute his judgment for Dr. Jabagat's decisions in
matters that fall appropriately within the scope of Dr. Jabagat's
expertise. TcCDIS
Under the above circumstances, although the Court commiserates with
the petitioners on their infinitely sorrowful loss, the Court cannot properly
declare that respondent failed to exercise the required standard of care as lead
surgeon as to hold him liable for damages for Allen's death.
In civil cases, the burden of proof to be established by preponderance
of evidence is on the plaintiff who is asserting the affirmative of an
issue. 20 Unless the party asserting the affirmative of an issue sustains the
burden of proof, his or her cause will not succeed.
WHEREFORE, the petition is DENIED. The Decision dated June 28,
G.R. CV No. 00201 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
62 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
||| (Spouses Bontilao v. Gerona, G.R. No. 176675, [September 15, 2010], 645 PHIL
128-139)
FIRST DIVISION
[G.R. No. 157917. August 29, 2012.]
SPOUSES TEODORO 1 and NANETTE
PEREÑA, petitioners, vs. SPOUSES NICOLAS and TERESITA
L. ZARATE, PHILIPPINE NATIONAL RAILWAYS, and the
COURT OF APPEALS, respondents.
DECISION
BERSAMIN, J  p:
The operator of a school bus service is a common carrier in the eyes of the
law. He is bound to observe extraordinary diligence in the conduct of his business.
He is presumed to be negligent when death occurs to a passenger. His liability may
include indemnity for loss of earning capacity even if the deceased passenger may
only be an unemployed high school student at the time of the accident.  At about the time the van was to traverse the railroad crossing, PNR
The Case
By petition for review on certiorari, Spouses Teodoro and Nanette Pereña
(Pereñas) appeal the adverse decision promulgated on November 13, 2002, by
which the Court of Appeals (CA) affirmed with modification the decision rendered on
December 3, 1999 by the Regional Trial Court (RTC), Branch 260, in Parañaque
City that had decreed them jointly and severally liable with Philippine National
Railways (PNR), their co-defendant, to Spouses Nicolas and Teresita Zarate
(Zarates) for the death of their 15-year old son, Aaron John L. Zarate (Aaron), then
a high school student of Don Bosco Technical Institute (Don Bosco).
Antecedents
The Pereñas were engaged in the business of transporting students from
their respective residences in Parañaque City to Don Bosco in Pasong Tamo,
Makati City, and back. In their business, the Pereñas used a KIA Ceres Van (van)
with Plate No. PYA 896, which had the capacity to transport 14 students at a time,
two of whom would be seated in the front beside the driver, and the others in the
rear, with six students on either side. They employed Clemente Alfaro (Alfaro) as
driver of the van. ACcHIa
In June 1996, the Zarates contracted the Pereñas to transport Aaron to and
from Don Bosco. On August 22, 1996, as on previous school days, the van picked
Aaron up around 6:00 a.m. from the Zarates' residence. Aaron took his place on the
left side of the van near the rear door. The van, with its air-conditioning unit turned
on and the stereo playing loudly, ultimately carried all the 14 student riders on their
way to Don Bosco. Considering that the students were due at Don Bosco by 7:15
a.m., and that they were already running late because of the heavy vehicular traffic
on the South Superhighway, Alfaro took the van to an alternate route at about 6:45
a.m. by traversing the narrow path underneath the Magallanes Interchange that was
then commonly used by Makati-bound vehicles as a short cut into Makati. At the
time, the narrow path was marked by piles of construction materials and parked
passenger jeepneys, and the railroad crossing in the narrow path had no railroad
warning signs, or watchmen, or other responsible persons manning the crossing. In
fact, the bamboo barandilla  was up, leaving the railroad crossing open to traversing
motorists. 
Commuter No. 302 (train), operated by Jhonny Alano (Alano), was in the vicinity of
the Magallanes Interchange travelling northbound. As the train neared the railroad
crossing, Alfaro drove the van eastward across the railroad tracks, closely tailing a
large passenger bus. His view of the oncoming train was blocked because he
overtook the passenger bus on its left side. The train blew its horn to warn motorists
of its approach. When the train was about 50 meters away from the passenger bus
63 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

and the van, Alano applied the ordinary brakes of the train. He applied the
emergency brakes only when he saw that a collision was imminent. The passenger
bus successfully crossed the railroad tracks, but the van driven by Alfaro did not.
The train hit the rear end of the van, and the impact threw nine of the 12 students in
the rear, including Aaron, out of the van. Aaron landed in the path of the train, which
dragged his body and severed his head, instantaneously killing him. Alano fled the
scene on board the train, and did not wait for the police investigator to arrive.
Devastated by the early and unexpected death of Aaron, the Zarates
commenced this action for damages against Alfaro, the Pereñas, PNR and Alano.
The Pereñas and PNR filed their respective answers, with cross-claims against
each other, but Alfaro could not be served with summons. HCDaAS
At the pre-trial, the parties stipulated on the facts and issues,  viz.:
A. FACTS:
(1) That spouses Zarate were the legitimate parents of
Aaron John L. Zarate;
(2) Spouses Zarate engaged the services of spouses
Pereña for the adequate and safe transportation
carriage of the former spouses' son from their
residence in Parañaque to his school at the Don
Bosco Technical Institute in Makati City;
(3) During the effectivity of the contract of carriage and in
the implementation thereof, Aaron, the minor son
of spouses Zarate died in connection with a
vehicular/train collision which occurred while
Aaron was riding the contracted carrier Kia
Ceres van of spouses Pereña, then driven and
operated by the latter's employee/authorized
driver Clemente Alfaro, which van collided with
the train of PNR, at around 6:45 A.M. of August
22, 1996, within the vicinity of the Magallanes
Interchange in Makati City, Metro Manila,
Philippines;  B. ISSUES
(4) At the time of the vehicular/train collision, the subject
site of the vehicular/train collision was a railroad
crossing used by motorists for crossing the
railroad tracks;
(5) During the said time of the vehicular/train collision,
there were no appropriate and safety warning
signs and railings at the site commonly used for
railroad crossing;
(6) At the material time, countless number of Makati
bound public utility and private vehicles used on
a daily basis the site of the collision as an
alternative route and short-cut to Makati;
(7) The train driver or operator left the scene of the
incident on board the commuter train involved
without waiting for the police investigator;
(8) The site commonly used for railroad crossing by
motorists was not in fact intended by the railroad
operator for railroad crossing at the time of the
vehicular collision; ACTaDH
(9) PNR received the demand letter of the spouses
Zarate;
(10) PNR refused to acknowledge any liability for the
vehicular/train collision;
(11) The eventual closure of the railroad crossing alleged
by PNR was an internal arrangement between
the former and its project contractor; and
(12) The site of the vehicular/train collision was within the
vicinity or less than 100 meters from the
Magallanes station of PNR.
64 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
(1) Whether or not defendant-driver of the van is, in the
performance of his functions, liable for
negligence constituting the proximate cause of
the vehicular collision, which resulted in the
death of plaintiff spouses' son; 
(2) Whether or not the defendant spouses Pereña being
the employer of defendant Alfaro are liable for
any negligence which may be attributed to
defendant Alfaro;
(3) Whether or not defendant Philippine National
Railways being the operator of the railroad
system is liable for negligence in failing to
provide adequate safety warning signs and
railings in the area commonly used by motorists
for railroad crossings, constituting the proximate
cause of the vehicular collision which resulted in
the death of the plaintiff spouses' son;
(4) Whether or not defendant spouses Pereña are liable
for breach of the contract of carriage with
plaintiff-spouses in failing to provide adequate
and safe transportation for the latter's son;
(5) Whether or not defendants spouses are liable for
actual, moral damages, exemplary damages,
and attorney's fees;
(6) Whether or not defendants spouses Teodorico and
Nanette Pereña observed the diligence of
employers and school bus operators; HCSAIa
(7) Whether or not defendant-spouses are civilly liable for
the accidental death of Aaron John Zarate;
(8) Whether or not defendant PNR was grossly negligent
in operating the commuter train involved in the
accident, in allowing or tolerating the motoring
public to cross, and its failure to install safety
devices or equipment at the site of the accident
for the protection of the public;
(9) Whether or not defendant PNR should be made to
reimburse defendant spouses for any and
whatever amount the latter may be held
answerable or which they may be ordered to pay
in favor of plaintiffs by reason of the action;
(10) Whether or not defendant PNR should pay plaintiffs
directly and fully on the amounts claimed by the
latter in their Complaint by reason of its gross
negligence;
(11) Whether or not defendant PNR is liable to
defendants spouses for actual, moral and
exemplary damages and attorney's fees. 2
The Zarates' claim against the Pereñas was upon breach of the contract of
carriage for the safe transport of Aaron; but that against PNR was based on quasi-
delict under Article 2176, Civil Code.
In their defense, the Pereñas adduced evidence to show that they had
exercised the diligence of a good father of the family in the selection and
supervision of Alfaro, by making sure that Alfaro had been issued a driver's license
and had not been involved in any vehicular accident prior to the collision; that their
own son had taken the van daily; and that Teodoro Pereña had sometimes
accompanied Alfaro in the van's trips transporting the students to school.
For its part, PNR tended to show that the proximate cause of the collision
had been the reckless crossing of the van whose driver had not first stopped, looked
and listened; and that the narrow path traversed by the van had not been intended
to be a railroad crossing for motorists. 
Ruling of the RTC
On December 3, 1999, the RTC rendered its decision, 3 disposing:
65 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiff and against the defendants
ordering them to jointly and severally pay the plaintiffs as follows:
(1) (for) the death of Aaron — Php50,000.00;
(2) Actual damages in the amount of Php100,000.00;
(3) For the loss of earning capacity — Php2,109,071.00;
(4) Moral damages in the amount of (Php)4,000,000.00;
(5) Exemplary damages in the amount of
Php1,000,000.00;
(6) Attorney's fees in the amount of Php200,000.00; and
(7) Cost of suit.  The trial court erred in awarding excessive damages and
SO ORDERED.
On June 29, 2000, the RTC denied the Pereñas' motion for
reconsideration, 4 reiterating that the cooperative gross negligence of the Pereñas
and PNR had caused the collision that led to the death of Aaron; and that the
damages awarded to the Zarates were not excessive, but based on the established
circumstances.
The CA's Ruling
Both the Pereñas and PNR appealed (C.A.-G.R. CV No. 68916).
PNR assigned the following errors, to wit: 5
The Court a quo  erred in:
1. In finding the defendant-appellant Philippine National Railways
jointly and severally liable together with defendant-
appellants spouses Teodorico and Nanette Pereña and
defendant-appellant Clemente Alfaro to pay plaintiffs-
appellees for the death of Aaron Zarate and
damages. CaAIES
2. In giving full faith and merit to the oral testimonies of plaintiffs-
appellees witnesses despite overwhelming documentary
evidence on record, supporting the case of defendants-
appellants Philippine National Railways.
The Pereñas ascribed the following errors to the RTC, namely:
The trial court erred in finding defendants-appellants jointly and
severally liable for actual, moral and exemplary damages and
attorney's fees with the other defendants.
The trial court erred in dismissing the cross-claim of the
appellants Pereñas against the Philippine National Railways
and in not holding the latter and its train driver primarily
responsible for the incident.
attorney's fees.
The trial court erred in awarding damages in the form of
deceased's loss of earning capacity in the absence of sufficient
basis for such an award. 
On November 13, 2002, the CA promulgated its decision, affirming the
findings of the RTC, but limited the moral damages to P2,500,000.00; and deleted
the attorney's fees because the RTC did not state the factual and legal bases, to
wit: 6
WHEREFORE, premises considered, the assailed
Decision of the Regional Trial Court, Branch 260 of Parañaque
City is AFFIRMED with the modification that the award of Actual
Damages is reduced to P59,502.76; Moral Damages is reduced
to P2,500,000.00; and the award for Attorney's Fees is Deleted.
SO ORDERED.
The CA upheld the award for the loss of Aaron's earning capacity, taking
cognizance of the ruling in Cariaga v. Laguna Tayabas Bus Company and Manila
Railroad Company, 7 wherein the Court gave the heirs of Cariaga a sum
66 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
representing the loss of the deceased's earning capacity despite Cariaga being only
a medical student at the time of the fatal incident. Applying the formula adopted in
the American Expectancy Table of Mortality: cSIHCA
2/3 x (80 - age at the time of death) = life expectancy
the CA determined the life expectancy of Aaron to be 39.3 years upon
reckoning his life expectancy from age of 21 (the age when he would have
graduated from college and started working for his own livelihood) instead of 15
years (his age when he died). Considering that the nature of his work and his salary
at the time of Aaron's death were unknown, it used the prevailing minimum wage of
P280.00/day to compute Aaron's gross annual salary to be P110,716.65, inclusive
of the thirteenth month pay. Multiplying this annual salary by Aaron's life expectancy
of 39.3 years, his gross income would aggregate to P4,351,164.30, from which his
estimated expenses in the sum of P2,189,664.30 was deducted to finally arrive at
P2,161,500.00 as net income. Due to Aaron's computed net income turning out to
be higher than the amount claimed by the Zarates, only P2,109,071.00, the amount
expressly prayed for by them, was granted
On April 4, 2003, the CA denied the Pereñas' motion for reconsideration. 8
Issues
In this appeal, the Pereñas list the following as the errors committed by the
CA, to wit:
I. The lower court erred when it upheld the trial court's decision
holding the petitioners jointly and severally liable to pay
damages with Philippine National Railways and
dismissing their cross-claim against the latter.
II. The lower court erred in affirming the trial court's decision of
awarding damages for loss of earning capacity of a minor
who was only a high school student at the time of his
death in the absence of sufficient basis for such an
award.
III. The lower court erred in not reducing further the amount of
damages awarded, assuming petitioners are liable at all.
Ruling
The petition has no merit. aEHTSc
1.
Were the Pereñas and PNR jointly
and severally liable for damages?
The Zarates brought this action for recovery of damages against both the
Pereñas and the PNR, basing their claim against the Pereñas on breach of contract
of carriage and against the PNR on quasi-delict.
The RTC found the Pereñas and the PNR negligent. The CA affirmed the
findings.
We concur with the CA.
To start with, the Pereñas' defense was that they exercised the diligence of
a good father of the family in the selection and supervision of Alfaro, the van driver,
by seeing to it that Alfaro had a driver's license and that he had not been involved in
any vehicular accident prior to the fatal collision with the train; that they even had
their own son travel to and from school on a daily basis; and that Teodoro Pereña
himself sometimes accompanied Alfaro in transporting the passengers to and from
school. The RTC gave scant consideration to such defense by regarding such
defense as inappropriate in an action for breach of contract of carriage. 
We find no adequate cause to differ from the conclusions of the lower
courts that the Pereñas operated as a common carrier; and that their standard of
care was extraordinary diligence, not the ordinary diligence of a good father of a
family.
Although in this jurisdiction the operator of a school bus service has been
usually regarded as a private carrier, 9primarily because he only caters to some
specific or privileged individuals, and his operation is neither open to the indefinite
public nor for public use, the exact nature of the operation of a school bus service
has not been finally settled. This is the occasion to lay the matter to rest.
A carrier is a person or corporation who undertakes to transport or convey
goods or persons from one place to another, gratuitously or for hire. The carrier is
67 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
classified either as a private/special carrier or as a common/public carrier. 10 A
private carrier is one who, without making the activity a vocation, or without holding
himself or itself out to the public as ready to act for all who may desire his or its
services, undertakes, by special agreement in a particular instance only,  to transport
goods or persons from one place to another either gratuitously or for hire.  11 The
provisions on ordinary contracts of the  Civil Code govern the contract of private
carriage. The diligence required of a private carrier is only ordinary, that is, the
diligence of a good father of the family. In contrast, a common carrier is a person,
corporation, firm or association engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for compensation,  offering such
services to the public. 12 Contracts of common carriage are governed by the
provisions on common carriers of the  Civil Code, the Public Service Act, 13 and
other special laws relating to transportation. A common carrier is required to
observe extraordinary diligence, and is presumed to be at fault or to have acted
negligently in case of the loss of the effects of passengers, or the death or injuries to
passengers. 14 EITcaD
In relation to common carriers, the Court defined  public use  in the following
terms in United States v. Tan Piaco, 15viz.:
"Public use" is the same as "use by the public". The
essential feature of the public use is not confined to privileged
individuals, but is open to the indefinite public. It is this indefinite
or unrestricted quality that gives it its public character. In
determining whether a use is public, we must look not only to the
character of the business to be done, but also to the proposed
mode of doing it. If the use is merely optional with the owners, or
the public benefit is merely incidental, it is not a public use,
authorizing the exercise of the jurisdiction of the public utility
commission. There must be, in general, a right which the law
compels the owner to give to the general public. It is not enough
that the general prosperity of the public is promoted. Public use is
not synonymous with public interest. The true criterion by which
to judge the character of the use is whether the public may enjoy
it by right  or only by permission.
In De Guzman v. Court of Appeals , 16 the Court noted that Article 1732 of
the Civil Code  avoided any distinction between a person or an enterprise offering
transportation on a regular or an isolated basis; and has not distinguished a carrier
offering his services to the general public, that is, the general community or
population, from one offering his services only to a narrow segment of the general
population. 
Nonetheless, the concept of a common carrier embodied in Article 1732 of
the Civil Code  coincides neatly with the notion of public service under the Public
Service Act, which supplements the law on common carriers found in the Civil Code.
Public service, according to Section 13, paragraph (b) of the  Public Service
Act, includes:
. . . every person that now or hereafter may own,
operate, manage, or control in the Philippines, for hire or
compensation, with general or limited clientèle, whether
permanent or occasional, and done for the general business
purposes, any common carrier, railroad, street railway, traction
railway, subway motor vehicle, either for freight or passenger, or
both, with or without fixed route and whatever may be its
classification, freight or carrier service of any class, express
service, steamboat, or steamship line, pontines, ferries and water
craft, engaged in the transportation of passengers or freight or
both, shipyard, marine repair shop, ice-refrigeration plant, canal,
irrigation system, gas, electric light, heat and power, water supply
and power petroleum, sewerage system, wire or wireless
communications systems, wire or wireless broadcasting stations
and other similar public services. . . . . 17AEITDH
Given the breadth of the aforequoted characterization of a common carrier,
the Court has considered as common carriers pipeline operators, 18 custom brokers
and warehousemen, 19 and barge operators 20 even if they had limited clientèle.
As all the foregoing indicate, the true test for a common carrier is not the
quantity or extent of the business actually transacted, or the number and character
of the conveyances used in the activity, but whether the undertaking is a part of the
activity engaged in by the carrier that he has held out to the general public as his
68 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
business or occupation. If the undertaking is a single transaction, not a part of the
general business or occupation engaged in, as advertised and held out to the
general public, the individual or the entity rendering such service is a private, not a
common, carrier. The question must be determined by the character of the business
actually carried on by the carrier, not by any secret intention or mental reservation it
may entertain or assert when charged with the duties and obligations that the law
imposes. 21
Applying these considerations to the case before us, there is no question
that the Pereñas as the operators of a school bus service were: (a) engaged in
transporting passengers generally as a business, not just as a casual
occupation; (b)  undertaking to carry passengers over established roads by the
method by which the business was conducted; and (c)transporting students for a
fee. Despite catering to a limited clientèle, the Pereñas operated as a common
carrier because they held themselves out as a ready transportation indiscriminately
to the students of a particular school living within or near where they operated the
service and for a fee. EHTISC
The common carrier's standard of care and vigilance as to the safety of the
passengers is defined by law. Given the nature of the business and for reasons of
public policy, the common carrier is 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." 22 Article 1755 of the Civil
Code  specifies that the common carrier should "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 ." To successfully fend
off liability in an action upon the death or injury to a passenger, the common carrier
must prove his or its observance of that extraordinary diligence; otherwise, the legal
presumption that he or it was at fault or acted negligently would stand.  23 No
device, whether by stipulation, posting of notices, statements on tickets, or
otherwise, may dispense with or lessen the responsibility of the common carrier as
defined under Article 1755 of the Civil Code. 24
And, secondly, the Pereñas have not presented any compelling defense or
reason by which the Court might now reverse the CA's findings on their liability. On
the contrary, an examination of the records shows that the evidence fully supported
the findings of the CA. 
As earlier stated, the Pereñas, acting as a common carrier, were already
presumed to be negligent at the time of the accident because death had occurred to
their passenger. 25 The presumption of negligence, being a presumption of law, laid
the burden of evidence on their shoulders to establish that they had not been
negligent. 26 It was the law no less that required them to prove their observance of
extraordinary diligence in seeing to the safe and secure carriage of the passengers
to their destination. Until they did so in a credible manner, they stood to be held
legally responsible for the death of Aaron and thus to be held liable for all the natural
consequences of such death.
There is no question that the Pereñas did not overturn the presumption of
their negligence by credible evidence. Their defense of having observed the
diligence of a good father of a family in the selection and supervision of their driver
was not legally sufficient. According to Article 1759 of the  Civil Code, their liability as
a common carrier did not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employee. This was
the reason why the RTC treated this defense of the Pereñas as inappropriate in this
action for breach of contract of carriage. HCTDIS
The Pereñas were liable for the death of Aaron despite the fact that their
driver might have acted beyond the scope of his authority or even in violation of the
orders of the common carrier. 27 In this connection, the records showed their
driver's actual negligence. There was a showing, to begin with, that their driver
traversed the railroad tracks at a point at which the PNR did not permit motorists
going into the Makati area to cross the railroad tracks. Although that point had been
used by motorists as a shortcut into the Makati area, that fact alone did not excuse
their driver into taking that route. On the other hand, with his familiarity with that
shortcut, their driver was fully aware of the risks to his passengers but he still
disregarded the risks. Compounding his lack of care was that loud music was
playing inside the air-conditioned van at the time of the accident. The loudness most
probably reduced his ability to hear the warning horns of the oncoming train to allow
him to correctly appreciate the lurking dangers on the railroad tracks. Also, he
sought to overtake a passenger bus on the left side as both vehicles traversed the
railroad tracks. In so doing, he lost his view of the train that was then coming from
the opposite side of the passenger bus, leading him to miscalculate his chances of
beating the bus in their race, and of getting clear of the train. As a result, the bus
69 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
avoided a collision with the train but the van got slammed at its rear, causing the
fatality. Lastly, he did not slow down or go to a full stop before traversing the railroad
tracks despite knowing that his slackening of speed and going to a full stop were in
observance of the right of way at railroad tracks as defined by the traffic laws and
regulations. 28 He thereby violated a specific traffic regulation on right of way, by
virtue of which he was immediately presumed to be negligent. 29
The omissions of care on the part of the van driver constituted
negligence, 30 which, according to Layugan v. Intermediate Appellate Court, 31 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, 32 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.'" 33
The test by which to determine the existence of negligence in a particular
case has been aptly stated in the leading case of Picart v.
Smith, 34 thuswise: ITSaHC
The test by which to determine the existence of
negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be
supplied by the imaginary conduct of the discreet  paterfamilias  of
the Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that. 
The question as to what would constitute the conduct of
a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculation cannot
here be of much value but this much can be profitably
said:Reasonable men govern their conduct by the circumstances
which are before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them
to suggest or warn of danger. Could a prudent man, in the case
under consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of
harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to
exist. 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) SDHTEC
Pursuant to the Picart v. Smith  test of negligence, the Pereñas' driver was
entirely negligent when he traversed the railroad tracks at a point not allowed for a
motorist's crossing despite being fully aware of the grave harm to be thereby caused
to his passengers; and when he disregarded the foresight of harm to his passengers
by overtaking the bus on the left side as to leave himself blind to the approach of the
oncoming train that he knew was on the opposite side of the bus.
Unrelenting, the Pereñas cite Phil. National Railways v. Intermediate
Appellate Court, 35 where the Court held the PNR solely liable for the damages
caused to a passenger bus and its passengers when its train hit the rear end of the
bus that was then traversing the railroad crossing. But the circumstances of that
case and this one share no similarities. In Philippine National Railways v.
Intermediate Appellate Court, no evidence of contributory negligence was adduced
against the owner of the bus. Instead, it was the owner of the bus who proved the
exercise of extraordinary diligence by preponderant evidence. Also, the records are
replete with the showing of negligence on the part of both the Pereñas and the PNR.
Another distinction is that the passenger bus in Philippine National Railways v.
70 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Intermediate Appellate Court  was traversing the dedicated railroad crossing when it
was hit by the train, but the Pereñas' school van traversed the railroad tracks at a
point not intended for that purpose. 
At any rate, the lower courts correctly held both the Pereñas and the PNR
"jointly and severally" liable for damages arising from the death of Aaron. They had
been impleaded in the same complaint as defendants against whom the Zarates
had the right to relief, whether jointly, severally, or in the alternative, in respect to or
arising out of the accident, and questions of fact and of law were common as to the
Zarates. 36 Although the basis of the right to relief of the Zarates ( i.e., breach of
contract of carriage) against the Pereñas was distinct from the basis of the Zarates'
right to relief against the PNR ( i.e., quasi-delict under Article 2176,  Civil Code), they
nonetheless could be held jointly and severally liable by virtue of their respective
negligence combining to cause the death of Aaron. As to the PNR, the RTC rightly
found the PNR also guilty of negligence despite the school van of the Pereñas
traversing the railroad tracks at a point not dedicated by the PNR as a railroad
crossing for pedestrians and motorists, because the PNR did not ensure the safety
of others through the placing of crossbars, signal lights, warning signs, and other
permanent safety barriers to prevent vehicles or pedestrians from crossing there.
The RTC observed that the fact that a crossing guard had been assigned to man
that point from 7 a.m. to 5 p.m. was a good  indicium  that the PNR was aware of the
risks to others as well as the need to control the vehicular and other traffic there.
Verily, the Pereñas and the PNR were joint tortfeasors. HCEcAa
2.
Was the indemnity for loss of
Aaron's earning capacity proper?
The RTC awarded indemnity for loss of Aaron's earning capacity. Although
agreeing with the RTC on the liability, the CA modified the amount. Both lower
courts took into consideration that Aaron, while only a high school student, had been
enrolled in one of the reputable schools in the Philippines and that he had been a
normal and able-bodied child prior to his death. The basis for the computation of
Aaron's earning capacity was not what he would have become or what he would
have wanted to be if not for his untimely death, but the minimum wage in effect at
the time of his death. Moreover, the RTC's computation of Aaron's life expectancy
rate was not reckoned from his age of 15 years at the time of his death, but on 21
years, his age when he would have graduated from college.
We find the considerations taken into account by the lower courts to be
reasonable and fully warranted. 
Yet, the Pereñas submit that the indemnity for loss of earning capacity was
speculative and unfounded. They cited People v. Teehankee, Jr., 37 where the Court
deleted the indemnity for victim Jussi Leino's loss of earning capacity as a pilot for
being speculative due to his having graduated from high school at the International
School in Manila only two years before the shooting, and was at the time of the
shooting only enrolled in the first semester at the Manila Aero Club to pursue his
ambition to become a professional pilot. That meant, according to the Court, that he
was for all intents and purposes only a high school graduate.
We reject the Pereñas' submission.
First of all, a careful perusal of the  Teehankee, Jr. case shows that the
situation there of Jussi Leino was not akin to that of Aaron here. The CA and the
RTC were not speculating that Aaron would be some highly-paid professional, like a
pilot (or, for that matter, an engineer, a physician, or a lawyer). Instead, the
computation of Aaron's earning capacity was premised on him being a lowly
minimum wage earner despite his being then enrolled at a prestigious high school
like Don Bosco in Makati, a fact that would have likely ensured his success in his
later years in life and at work. TEcADS
And, secondly, the fact that Aaron was then without a history of earnings
should not be taken against his parents and in favor of the defendants whose
negligence not only cost Aaron his life and his right to work and earn money, but
also deprived his parents of their right to his presence and his services as well. Our
law itself states that the loss of the earning capacity of the deceased shall be the
liability of the guilty party in favor of the heirs of the deceased, and 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." 38 Accordingly, we emphatically hold in favor of the
indemnification for Aaron's loss of earning capacity despite him having been
unemployed, because compensation of this nature is awarded not for loss of time or
earnings but for loss of the deceased's power or ability to earn money. 39
71 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

This favorable treatment of the Zarates' claim is not unprecedented.
In Cariaga v. Laguna Tayabas Bus Company and Manila Railroad
Company, 40 fourth-year medical student Edgardo Carriaga's earning capacity,
although he survived the accident but his injuries rendered him permanently
incapacitated, was computed to be that of the physician that he dreamed to
become. The Court considered his scholastic record sufficient to justify the
assumption that he could have finished the medical course and would have passed
the medical board examinations in due time, and that he could have possibly earned
a modest income as a medical practitioner. Also, in  People v. Sanchez, 41 the
Court opined that murder and rape victim Eileen Sarmienta and murder victim Allan
Gomez could have easily landed good-paying jobs had they graduated in due time,
and that their jobs would probably pay them high monthly salaries from P10,000.00
to P15,000.00 upon their graduation. Their earning capacities were computed at
rates higher than the minimum wage at the time of their deaths due to their being
already senior agriculture students of the University of the Philippines in Los Baños,
the country's leading educational institution in agriculture. TAEDcS
Anent the P1,000,000.00 allowed as exemplary damages, we should not
reduce the amount if only to render effective the desired example for the public
good. As a common carrier, the Pereñas needed to be vigorously reminded to
observe their duty to exercise extraordinary diligence to prevent a similarly
senseless accident from happening again. Only by an award of exemplary damages
in that amount would suffice to instill in them and others similarly situated like them
the ever-present need for greater and constant vigilance in the conduct of a
business imbued with public interest.
WHEREFORE, we DENY the petition for review on certiorari; AFFIRM the
decision promulgated on November 13, 2002; and ORDER the petitioners to pay the
costs of suit.
SO ORDERED.
||| (Spouses Pereña v. Spouses Zarate, G.R. No. 157917, [August 29, 2012], 693
PHIL 373-399)

3.
Were the amounts of damages excessive?
The Pereñas plead for the reduction of the moral and exemplary damages THIRD DIVISION
awarded to the Zarates in the respective amounts of P2,500,000.00 and
P1,000,000.00 on the ground that such amounts were excessive. [G.R. No. 161188. June 13, 2008.]
The plea is unwarranted.
Heirs of PURISIMA NALA, represented by their attorney-in-fact
The moral damages of P2,500,000.00 were really just and reasonable
EFEGENIA DIGNA DUYAN, petitioners, vs. ARTEMIO
under the established circumstances of this case because they were intended by
CABANSAG, respondent.
the law to assuage the Zarates' deep mental anguish over their son's unexpected
and violent death, and their moral shock over the senseless accident. That amount
would not be too much, considering that it would help the Zarates obtain the means,
diversions or amusements that would alleviate their suffering for the loss of their DECISION
child. At any rate, reducing the amount as excessive might prove to be an injustice,
given the passage of a long time from when their mental anguish was inflicted on
them on August 22, 1996.  AUSTRIA-MARTINEZ, J  p:
72 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
This is a petition for review under Rule 45 of the Rules of Court
assailing the Court of Appeals (CA) Decision 1dated December 19, 2002 and
Resolution 2 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. IaEACT
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. 3
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. 4
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:
WHEREFORE, premises considered, by preponderance
of evidence, the Court finds in favor of the plaintiff and hereby
orders the defendants, jointly and severally, to pay plaintiff the
following:
1. P150,000.00 by way of moral damages;
2. P30,000.00 by way of exemplary damages;
3. P20,000.00 as and for reasonable attorney's fees and
other litigation expenses; and
4. to pay the costs.
SO ORDERED. 5
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: EAICTS
WHEREFORE, premises considered, the instant appeal
is hereby DISMISSED. The assailed decision of the Regional
Trial Court, Branch 93, Quezon City, in Civil Case No. Q-91-
10541 is heretofore AFFIRMED with MODIFICATION.
Defendants-appellants are ordered to pay, jointly and severally,
plaintiff-appellee the amount of P30,000.00 by way of moral
damages. It is further ordered to pay him exemplary damages in
the amount of P10,000.00 and P10,000.00, attorney's fees.
SO ORDERED. 6
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. 7
Hence, herein petition by the heirs of Nala (petitioners) 8 with the
following assignment of errors:
a) Respondent Court of Appeals erred in not considering the right
of Purisima Nala to assert her rights and interest over the
property.
73 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
b) Respondent Court of Appeals erred in not considering the
Decision rendered by the Court of Appeals in the case for
reconveyance which upheld the rights and interest of
Purisima Nala and her children over a certain parcel of
land, a portion of which is subject of the present case.
c) Respondent Court of Appeals erred in awarding damages and
attorney's fees without any basis. 9
Atty. del Prado filed a motion for extension of time to file his separate
petition but it was denied by the Court per its Resolution dated January 19,
2004 issued in G.R. No. 160829.
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. TIAEac
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. 10
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. 11
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. 12 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. 13
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
74 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

give rise to the conclusion that the sending of the demand letters by Nala was SO ORDERED.
done in bad faith. Absent any evidence presented by respondent, bad faith or ||| (Heirs of Nala v. Cabansag, G.R. No. 161188, [June 13, 2008], 577 PHIL 310-
malice could not be attributed to petitioner since Nala was only trying to protect 318)
their interests over the property. aCSTDc
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 THIRD DIVISION
right while damage is the hurt, loss or harm which results from the
injury. 14 Thus, there can be damage without injury in those instances in which [G.R. No. 175540. April 7, 2014.]
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 DR. FILOTEO A. ALANO, petitioner, vs. ZENAIDA MAGUD-
no remedy for damages resulting from an act which does not amount to a legal LOGMAO, respondent.
injury or wrong. These situations are often called damnum absque injuria. 15
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 DECISION
to enforce her legal/equitable rights over the property occupied by respondent.
One who makes use of his own legal right does no injury. 16 Thus, whatever
damages are suffered by respondent should be borne solely by him.
PERALTA, J  p:
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 This deals with the Petition for Review on Certiorari under Rule 45 of
and her heirs. In its Decision dated March 8, 2000 in CA-G.R. CV No. 49163, the Rules of Court praying that the Decision 1of the Court of Appeals (CA), dated
the CA reversed and set aside the RTC's Decision and ordered the March 31, 2006, adjudging petitioner liable for damages, and the Resolution 2 dated
reconveyance of the property to petitioners, and TCT No. 281115 was declared November 22, 2006, denying petitioner's motion for reconsideration thereof, be
canceled. Said CA Decision was affirmed by this Court in its Decision dated reversed and set aside. 
March 18, 2005 in G.R. No. 144148, which became final and executory on July
The CA's narration of facts is accurate, to wit:
27, 2005.
WHEREFORE, the petition is GRANTED. The Decision dated Plaintiff-appellee Zenaida Magud-Logmao is the mother
December 19, 2002 and Resolution dated October 28, 2003 rendered by the of deceased Arnelito Logmao. Defendant-appellant Dr. Filoteo
Court of Appeals in CA-G.R. CV No. 48580 are NULLIFIED. Civil Case No. Q- Alano is the Executive Director of the National Kidney Institute
91-10541 is DISMISSED for lack of merit. aSDHCT (NKI).

Costs against respondent.

75 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

At around 9:50 in the evening of March 1, 1988, Arnelito organ donation, the organs thus donated could be detached and
Logmao, then eighteen (18) years old, was brought to the East transplanted promptly to any compatible beneficiary. HACaSc
Avenue Medical Center (EAMC) in Quezon City by two sidewalk
Jennifer Misa verified on the same day, March 2, 1988,
vendors, who allegedly saw the former fall from the overpass
from EAMC the identity of Lugmoso and, upon her request, she
near the Farmers' Market in Cubao, Quezon City. The patient's
was furnished by EAMC a copy of the patient's date sheet which
data sheet identified the patient as Angelito Lugmoso of Boni
bears the name Angelito Lugmoso, with address at Boni Avenue,
Avenue, Mandaluyong. However, the clinical abstract prepared
Mandaluyong. She then contacted several radio and television
by Dr. Paterno F. Cabrera, the surgical resident on-duty at the
stations to request for air time for the purpose of locating the
Emergency Room of EAMC, stated that the patient is Angelito
family of Angelito Lugmoso of Boni Avenue, Mandaluyong, who
[Logmao]. Dr. Cabrera reported that [Logmao] was drowsy with
was confined at NKI for severe head injury after allegedly falling
alcoholic breath, was conscious and coherent; that the skull x-ray
from the Cubao overpass, as well as Police Station No. 5,
showed no fracture; that at around 4:00 o'clock in the morning of
Eastern Police District, whose area of jurisdiction includes Boni
March 2, 1988, [Logmao] developed generalized seizures and
Avenue, Mandaluyong, for assistance in locating the relatives of
was managed by the neuro-surgery resident on-duty; that the
Angelito Lugmoso. Certifications were issued by Channel 4, ABS-
condition of [Logmao] progressively deteriorated and he was
CBN and GMA attesting that the request made by the NKI on
intubated and ambu-bagging support was provided; that
March 2, 1988 to air its appeal to locate the family and relatives
admission to the Intensive Care Unit (ICU) and mechanical
of Angelito Lugmoso of Boni Avenue, Mandaluyong was
ventilator support became necessary, but there was no vacancy
accommodated. A Certification was likewise issued by Police
at the ICU and all the ventilator units were being used by other
Station No. 5, Eastern Police District, Mandaluyong attesting to
patients; that a resident physician of NKI, who was rotating at
the fact that on March 2, 1988, at about 6:00 p.m., Jennifer Misa
EAMC, suggested that [Logmao] be transferred to NKI; and that
requested for assistance to immediately locate the family and
after arrangements were made, [Logmao] was transferred to NKI
relatives of Angelito Lugmoso and that she followed up her
at 10:10 in the morning.
request until March 9, 1988.
At the NKI, the name Angelito [Logmao] was recorded as
On March 3, 1988, at about 7:00 o'clock in the morning,
Angelito Lugmoso. Lugmoso was immediately attended to and
Dr. Ona was informed that Lugmoso had been pronounced brain
given the necessary medical treatment. As Lugmoso had no
dead by Dr. Abdias V. Aquino, a neurologist, and by Dr. Antonio
relatives around, Jennifer B. Misa, Transplant Coordinator, was
Rafael, a neurosurgeon and attending physician of Lugmoso, and
asked to locate his family by enlisting police and media
that a repeat electroencephalogram (EEG) was in progress to
assistance. Dr. Enrique T. Ona, Chairman of the Department of
confirm the diagnosis of brain death. Two hours later, Dr. Ona
Surgery, observed that the severity of the brain injury of Lugmoso
was informed that the EEG recording exhibited a flat tracing,
manifested symptoms of brain death. He requested the
thereby confirming that Lugmoso was brain dead. Upon learning
Laboratory Section to conduct a tissue typing and tissue cross-
that Lugmoso was a suitable organ donor and that some NKI
matching examination, so that should Lugmoso expire despite the
patients awaiting organ donation had blood and tissue types
necessary medical care and management and he would be found
compatible with Lugmoso, Dr. Ona inquired from Jennifer Misa
to be a suitable organ donor and his family would consent to
76 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
whether the relatives of Lugmoso had been located so that the
necessary consent for organ donation could be obtained. As the
extensive search for the relatives of Lugmoso yielded no positive
result and time being of the essence in the success of organ
transplantation, Dr. Ona requested Dr. Filoteo A. Alano,
Executive Director of NKI, to authorize the removal of specific
organs from the body of Lugmoso for transplantation purposes.
Dr. Ona likewise instructed Dr. Rose Marie Rosete-Liquete to
secure permission for the planned organ retrieval and
transplantation from the Medico-Legal Office of the National
Bureau of Investigation (NBI), on the assumption that the incident
which lead to the brain injury and death of Lugmoso was a
medico legal case.
On March 3, 1988, Dr. Alano issued to Dr. Ona a
Memorandum, which reads as follows:
This is in connection with the use of the human
organs or any portion or portions of the human body of
the deceased patient, identified as a certain Mr. Angelito
Lugmoso who was brought to the National Kidney
Institute on March 2, 1988 from the East Avenue Medical
Center.  team then transplanted a kidney and the pancreas of Lugmoso to
As shown by the medical records, the said
patient died on March 3, 1988 at 9:10 in the morning due
to craniocerebral injury. Please make certain that your
Department has exerted all reasonable efforts to locate
the relatives or next of kin of the said deceased patient
such as appeal through the radios and television as well
as through police and other government agencies and
that the NBI [Medico-Legal] Section has been notified
and is aware of the case.
If all the above has been complied with, in
accordance with the provisions of Republic Act No.
349 as amended and P.D. 856, permission and/or
authority is hereby given to the Department of Surgery to
retrieve and remove the kidneys, pancreas, liver and
heart of the said deceased patient and to transplant the
said organs to any compatible patient who maybe in
need of said organs to live and survive.
A Certification dated March 10, 1988 was issued by Dr.
Maximo Reyes, Medico-Legal Officer of the NBI, stating that he
received a telephone call from Dr. Liquete on March 3, 1988 at
9:15 a.m. regarding the case of Lugmoso, who was declared
brain dead; that despite efforts to locate the latter's relatives, no
one responded; the Dr. Liquete sought from him a second opinion
for organ retrieval for donation purposes even in the absence of
consent from the family of the deceased; and that he verbally
agreed to organ retrieval.
At 3:45 in the afternoon of March 3, 1988, a medical
team, composed of Dr. Enrique Ona, as principal surgeon, Drs.
Manuel Chua-Chiaco, Jr., Rose Marie Rosete-Liquete, Aurea
Ambrosio, Ludivino de Guzman, Mary Litonjua, Jaime Velasquez,
Ricardo Fernando, and Myrna Mendoza, removed the heart,
kidneys, pancreas, liver and spleen of Lugmoso. The medical
Lee Tan Hoc and the other kidney of Lugmoso to Alexis
Ambustan. The transplant operation was completed at around
11:00 o'clock in the evening of March 3, 1988.
On March 4, 1988, Dr. Antonio R. Paraiso, Head of the
Cadaver Organ Retrieval Effort (CORE) program of NKI, made
arrangements with La Funeraria Oro for the embalmment of the
cadaver of Lugmoso good for a period of fifteen (15) days to
afford NKI more time to continue searching for the relatives of the
latter. On the same day, Roberto Ortega, Funeral Consultant of
La Funeraria Oro, sent a request for autopsy to the NBI. The
Autopsy Report and Certification of Post-Mortem Examination
issued by the NBI stated that the cause of death of Lugmoso was
intracranial hemorrhage secondary to skull fracture.
77 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
On March 11, 1988, the NKI issued a press release
announcing its successful double organ transplantation. Aida
Doromal, a cousin of plaintiff, heard the news aired on television
that the donor was an eighteen (18) year old boy whose remains
were at La Funeraria Oro in Quezon City. As the name of the
donor sounded like Arnelito Logmao, Aida informed plaintiff of the
news report. 
It appears that on March 3, 1988, Arlen Logmao, a
brother of Arnelito, who was then a resident of 17-C San Pedro
Street, Mandaluyong, reported to Police Station No. 5, Eastern
Police District, Mandaluyong that the latter did not return home
after seeing a movie in Cubao, Quezon City, as evidenced by a
Certification issued by said Station; and that the relatives of
Arnelito were likewise informed that the latter was missing. Upon
receiving the news from Aida, plaintiff and her other children went
to La Funeraria Oro, where they saw Arnelito inside a cheap
casket.
On April 29, 1988, plaintiff filed with the court a quo a
complaint for damages against Dr. Emmanuel Lenon, Taurean
Protectors Agency, represented by its Proprietor, Celso Santiago,
National Kidney Institute, represented by its Director, Dr. Filoteo
A. Alano, Jennifer Misa, Dr. Maximo Reyes, Dr. Enrique T. Ona,
Dr. Manuel Chua-Chiaco, Jr., Dr. Rose Marie O. Rosete-Liquete,
Dr. Aurea Z. Ambrosio, Dr. Ludivino de Guzman, Dr. Mary
Litonjua, Dr. Jaime Velasquez, Dr. Ricardo Fernando, Dr. Myrna
Mendoza, Lee Tan Koc, Alexis Ambustan, Dr. Antonio R.
Paraiso, La Funeraria Oro, Inc., represented by its President,
German E. Ortega, Roberto Ortega alias Bobby Ortega, Dr.
Mariano B. Cueva, Jr., John Doe, Peter Doe, and Alex Doe in
connection with the death of her son Arnelito. Plaintiff alleged that
defendants conspired to remove the organs of Arnelito while the
latter was still alive and that they concealed his true identity.
On January 17, 2000, the court a quo rendered judgment
finding only Dr. Filoteo Alano liable for damages to plaintiff and
dismissing the complaint against the other defendants for lack of
legal basis. 3
After finding petitioner liable for a quasi-delict, the Regional Trial Court of
Quezon City (RTC) ordered petitioner to pay respondent P188,740.90 as actual
damages; P500,000.00 as moral damages; P500,000.00 as exemplary damages;
P300,000.00 as attorney's fees; and costs of suit. Petitioner appealed to the CA.
On March 31, 2006, the CA issued its Decision, the dispositive portion of
which reads as follows:
WHEREFORE, the Decision appealed from
is AFFIRMED, with MODIFICATION by DELETING the award of
P188,740.90 as actual damages and REDUCING the award of
moral damages to P250,000.00, the award of exemplary
damages to P200,000.00 and the award of attorney's fees to
P100,000.00. 
SO ORDERED. 4
Petitioner then elevated the matter to this Court via a petition for review
on certiorari, where the following issues are presented for resolution:
A. WHETHER THE COURT OF APPEALS DISREGARDED
EXISTING JURISPRUDENCE PRONOUNCED BY THIS
HONORABLE SUPREME COURT IN HOLDING PETITIONER
DR. FILOTEO ALANO LIABLE FOR MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES DESPITE
THE FACT THAT THE ACT OF THE PETITIONER IS NOT
THE PROXIMATE CAUSE NOR IS THERE ANY FINDING
THAT THE ACT OF THE PETITIONER WAS THE
PROXIMATE CAUSE OF THE INJURY OR DAMAGE
ALLEGEDLY SUSTAINED BY RESPONDENT ZENAIDA
MAGUD-LOGMAO.
B. WHETHER THE COURT OF APPEALS GRAVELY ERRED
IN REFUSING AND/OR FAILING TO DECLARE THAT
PETITIONER DR. ALANO ACTED IN GOOD FAITH AND
PURSUANT TO LAW WHEN HE ISSUED THE
78 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
AUTHORIZATION TO REMOVE AND RETRIEVE THE
ORGANS OF ANGELITO LUGMOSO (LATER IDENTIFIED TO
BE IN FACT ARNELITO LOGMAO) CONSIDERING THAT NO
NEGLIGENCE CAN BE ATTRIBUTED OR IMPUTED ON HIM
IN HIS PERFORMANCE OF AN ACT MANDATED BY LAW.
C. WHETHER THE COURT OF APPEALS GRAVELY ERRED
IN AWARDING RESPONDENT ZENAIDA MAGUD-LOGMAO
MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S
FEES THAT ARE NOT IN ACCORDANCE WITH AND ARE
CONTRARY TO ESTABLISHED JURISPRUDENCE. 5
The first two issues boil down to the question of whether respondent's
sufferings were brought about by petitioner's alleged negligence in granting
authorization for the removal or retrieval of the internal organs of respondent's son
who had been declared brain dead.
Petitioner maintains that when he gave authorization for the removal of
some of the internal organs to be transplanted to other patients, he did so in
accordance with the letter of the law, Republic Act (R.A.) No. 349, as amended
by Presidential Decree (P.D.) 856, i.e., giving his subordinates instructions to exert
all reasonable efforts to locate the relatives or next of kin of respondent's son. In
fact, announcements were made through radio and television, the assistance of
police authorities was sought, and the NBI Medico-Legal Section was notified. Thus,
petitioner insists that he should not be held responsible for any damage allegedly
suffered by respondent due to the death of her son and the removal of her son's
internal organs for transplant purposes.
The appellate court affirmed the trial court's finding that there was
negligence on petitioner's part when he failed to ensure that reasonable time had
elapsed to locate the relatives of the deceased before giving the authorization to
remove said deceased's internal organs for transplant purposes. However, a close
examination of the records of this case would reveal that this case falls under one of
the exceptions to the general rule that factual findings of the trial court, when
affirmed by the appellate court, are binding on this Court. There are some important
circumstances that the lower courts failed to consider in ascertaining whether it was
the actions of petitioner that brought about the sufferings of respondent. 6 DIESHT
The Memorandum dated March 3, 1988 issued by petitioner, stated thus:
As shown by the medical records, the said patient died
on March 3, 1988 at 9:10 in the morning due to craniocerebral
injury. Please make certain that your Department has exerted all
reasonable efforts to locate the relatives or next-of-kin of the said
deceased patient, such as appeal through the radios and
television, as well as through police and other government
agencies and that the NBI [Medico-Legal] Section has been
notified and is aware of the case.
If all the above has been complied with, in accordance
with the provisions of Republic Act No. 349 as amended and P.D.
856, permission and/or authority is hereby given to the
Department of Surgery to retrieve and remove the kidneys,
pancreas, liver and heart of the said deceased patient and to
transplant the said organs to any compatible patient who maybe
in need of said organs to live and survive. 7
A careful reading of the above shows that petitioner instructed his
subordinates to "make certain" that "all reasonable efforts" are exerted to locate the
patient's next of kin, even enumerating ways in which to ensure that notices of the
death of the patient would reach said relatives. It also clearly stated that permission
or authorization to retrieve and remove the internal organs of the deceased was
being given ONLY IF the provisions of the applicable law had been complied with.
Such instructions reveal that petitioner acted prudently by directing his subordinates
to exhaust all reasonable means of locating the relatives of the deceased. He could
not have made his directives any clearer. He even specifically mentioned
that permission is only being granted IF the Department of Surgery has complied
with all the requirements of the law. Verily, petitioner could not have been faulted for
having full confidence in the ability of the doctors in the Department of Surgery to
comprehend the instructions, obeying all his directives, and acting only in
accordance with the requirements of the law.
Furthermore, as found by the lower courts from the records of the case, the
doctors and personnel of NKI disseminated notices of the death of respondent's son
to the media and sought the assistance of the appropriate police authorities as early
79 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

as March 2, 1988, even before petitioner issued the Memorandum. Prior to WHEREFORE, the petition is GRANTED. The Decision of the Court of
performing the procedure for retrieval of the deceased's internal organs, the doctors Appeals, dated March 31, 2006, is REVERSEDand SET ASIDE. The complaint
concerned also the sought the opinion and approval of the Medico-Legal Officer of against petitioner is hereby DISMISSED.
the NBI.
SO ORDERED.
Thus, there can be no cavil that petitioner employed reasonable means to
||| (Alano v. Magud-Logmao, G.R. No. 175540, [April 7, 2014])
disseminate notifications intended to reach the relatives of the deceased. The only
question that remains pertains to the sufficiency of time allowed for notices to reach
the relatives of the deceased.
If respondent failed to immediately receive notice of her son's death
because the notices did not properly state the name or identity of the deceased, SECOND DIVISION
fault cannot be laid at petitioner's door. The trial and appellate courts found that it
was the EAMC, who had the opportunity to ascertain the name of the deceased, [G.R. No. 160889. April 27, 2007.]
who recorded the wrong information regarding the deceased's identity to NKI. The
NKI could not have obtained the information about his name from the patient, DR. MILAGROS L. CANTRE, petitioner,vs.SPS. JOHN DAVID Z.
because as found by the lower courts, the deceased was already unconscious by GO and NORA S. GO, respondents.
the time he was brought to the NKI.
Ultimately, it is respondent's failure to adduce adequate evidence that
doomed this case. As stated in Otero v. Tan, 8"[i]n civil cases, it is a basic rule that DECISION
the party making allegations has the burden of proving them by a preponderance of
evidence. The parties must rely on the strength of their own evidence and not upon
the weakness of the defense offered by their opponent." 9 Here, there is to proof QUISUMBING, J  p:
that, indeed, the period of around 24 hours from the time notices were
disseminated, cannot be considered as reasonable under the circumstances. They For review on certiorari are the Decision 1 dated October 3, 2002 and
failed to present any expert witness to prove that given the medical technology and Resolution 2 dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No.
knowledge at that time in the 1980's, the doctors could or should have waited longer 58184, which affirmed with modification the Decision 3 dated March 3, 1997 of the
before harvesting the internal organs for transplantation.  Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562. 
Verily, the Court cannot, in conscience, agree with the lower court. Finding The facts, culled from the records, are as follows:
petitioner liable for damages is improper. It should be emphasized that the internal
organs of the deceased were removed only after he had been declared brain dead; Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and
thus, the emotional pain suffered by respondent due to the death of her son cannot Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending
in any way be attributed to petitioner. Neither can the Court find evidence on record physician of respondent Nora S. Go, who was admitted at the said hospital on April
to show that respondent's emotional suffering at the sight of the pitiful state in which 19, 1992.
she found her son's lifeless body be categorically attributed to petitioner's conduct.
80 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
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. 4 Nora remained unconscious until she recovered. caCEDA
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. 5 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. 6 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. 7 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. 8 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. 9
On May 22, 1992, Nora's injury was referred to a plastic surgeon at the Dr.
Jesus Delgado Memorial Hospital for skin grafting. 10 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. 11 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. 12
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. IDaEHS
Thus, on June 21, 1993, respondent spouses filed a complaint 13 for
damages against petitioner, Dr. Abad, and the hospital. Finding in favor of
respondent spouses, the trial court decreed:
In view of the foregoing consideration, judgment is
hereby rendered in favor of the plaintiffs and against the
defendants, directing the latters, ( sic) jointly and severally —
(a) to pay the sum of Five Hundred Thousand Pesos
(P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos
(P150,000.00) exemplary damages;
(c) to pay the sum of Eighty Thousand Pesos
(P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as
attorney's fees; and 
(e) to pay Six Thousand Pesos (P6,000.00) litigation
expenses.
SO ORDERED. 14
Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals,
which affirmed with modification the trial court decision, thus:
WHEREFORE, in view of all the foregoing, and finding
no reversible error in the appealed Decision dated March 3, 1997
of Branch 98 of the Regional Trial Court of Quezon City in Civil
Case No. Q-93-16562, the same is hereby AFFIRMED, with the
following MODIFICATIONS: HcSETI
81 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre
only to pay plaintiffs-appellees John David Go
and Nora S. Go the sum of P200,000.00 as
moral damages;
2. Deleting the award [of] exemplary damages, attorney's
fees and expenses of litigation;
3. Dismissing the complaint with respect to defendants-
appellants Dr. Rainerio S. Abad and Delgado
Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants
for lack of merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre
only to pay the costs.
SO ORDERED. 15
Petitioner's motion for reconsideration was denied by the Court of Appeals.
Hence, the instant petition assigning the following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT
OF APPEALS COMMITTED GRAVE ABUSE OF THEIR
DISCRETION WHEN, NOTWITHSTANDING THAT BOTH
PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE
LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS
FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO
BY ANY WITNESS AND THIS DECISION OF THE LOWER
COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION; DCAEcS
II.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT THE PETITIONER HAS NOT
AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH
THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE
LOWER COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION; 
III.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE
WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY
(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT
MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A
RULING ON THE RESPONDENT'S INJURY QUOTING THE
TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND
HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF
RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ABUSING ITS DISCRETION RULED THAT PETITIONER DRA.
CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY
TO SAVE THE LIFE OF RESPONDENT MRS. GO; TECIHD
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT
[OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE
82 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
BY PETITIONER, BOTH RULED THAT THE RESPONDENT
WAS LEFT TO THE CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE
MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED
THAT THE COSMETIC SURGERY MADE THE SCARS EVEN
MORE UGLY AND DECLARED THE COSMETIC SURGERY A
FAILURE;  Nora's medical records, which were produced by the hospital during trial pursuant to
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE
OF (SIC) DISCRETION WHEN, CONTRARY TO
RESPONDENTS' CONTRARY TESTIMONIES AND THE
ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE
ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS
LIKEWISE ABUSING ITS DISCRETION. 16
Petitioner contends that additional documentary exhibits not testified to by
any witness are inadmissible in evidence because they deprived her of her
constitutional right to confront the witnesses against her. Petitioner insists the
droplight could not have touched Nora's body. She maintains the injury was due to
the constant taking of Nora's blood pressure. Petitioner also insinuates the Court of
Appeals was misled by the testimony of the medico-legal officer who never saw the
original injury before plastic surgery was performed. Finally, petitioner stresses that
plastic surgery was not intended to restore respondent's injury to its original state
but rather to prevent further complication. acITSD
Respondents, however, counter that the genuineness and due execution of
the additional documentary exhibits were duly admitted by petitioner's counsel.
Respondents point out that petitioner's blood pressure cuff theory is highly
improbable, being unprecedented in medical history and that the injury was
definitely caused by the droplight. At any rate, they argue, even if the injury was
brought about by the blood pressure cuff, petitioner was still negligent in her duties
as Nora's attending physician.
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. DaIACS
As to the first issue, we agree with the Court of Appeals that said exhibits
are admissible in evidence. We note that the questioned exhibits consist mostly of
a subpoena duces tecum.Petitioner's counsel admitted the existence of the same
when they were formally offered for admission by the trial court. In any case, given
the particular circumstances of this case, a ruling on the negligence of petitioner
may be made based on the res ipsa loquitur  doctrine even in the absence of such
additional exhibits.
Petitioner's contention that the medico-legal officer who conducted Nora's
physical examination never saw her original injury before plastic surgery was
performed is without basis and contradicted by the records. Records show that the
medico-legal officer conducted the physical examination on May 7, 1992, while the
skin grafting and the scar revision were performed on Nora on May 22, 1992 and
April 30, 1993, respectively. 
Coming now to the substantive matter, is petitioner liable for the injury
suffered by respondent Nora Go?
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. 17 ASHaTc
In cases involving medical negligence, the doctrine of res ipsa
loquitur  allows the mere existence of an injury to justify a presumption of negligence
83 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
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. 18
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. 19 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. TaCDAH
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 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, 20 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. HICcSA
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. IHcTDA
84 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
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. 21
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.  2. ID.; ID.; MORAL AND EXEMPLARY DAMAGES MAY BE
No pronouncement as to costs.
SO ORDERED.
||| (Cantre v. Spouses Go, G.R. No. 160889, [April 27, 2007], 550 PHIL 637-649)
FIRST DIVISION
[G.R. No. L-20089. December 26, 1964.]
BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO
X. VELEZ, defendant-appellant.
Jalandoni & Jamir  for defendant-appellant.
Samson S. Alcantara  for plaintiff-appellee.
SYLLABUS
1. DAMAGES; BREACH OF PROMISE TO MARRY; WHEN
ACTIONABLE WRONG. — Ordinarily, a mere breach of promise to marry is not
an actionable wrong. But to formally set a wedding and go through all the
necessary preparations 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 the erring promisor must be held
answerable in damages in accordance with Article 21 of the New Civil Code.
AWARDED IN AN ACTIONABLE BREACH OF PROMISE SUIT. — When a
breach of promise to marry is actionable under Article 21 of the Civil Code,
moral damages may be awarded under Article 2219 (10) of the said Code.
Exemplary damages may also be awarded under Article 2232 of said Code
where it is proven that the defendant clearly acted in a wanton, reckless and
oppressive manner.
3. PLEADINGS AND PRACTICE; AFFIDAVIT OF MERITS IN
PETITION FOR BELIEF MUST STATE FACTS CONSTITUTING DEFENSE. —
An affidavit of merits supporting a petition for relief from judgment must state
facts constituting a valid defense. Where such an affidavit merely states
conclusions or opinions, it is not valid.
4. ID.; TRIAL BY COMMISSIONER; CLERK OF COURT MAY BE
VALIDLY DESIGNATED. — The procedure of designating the clerk of court as
commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of
the Rules of Court.
5. ID.; ID.; ID.; DEFENDANT'S CONSENT TO DESIGNATION OF
COMMISSIONER NOT NECESSARY WHERE HE IS IN DEFAULT. — The
defendant's consent to the designation of the clerk of court as commissioner to
receive evidence is not necessary where he was declared in default and thus
had no standing in court.
6. AFFIDAVITS OF MERIT; MUST CONTAIN FACTS AND NOT
CONCLUSIONS OF FACT. — Affidavits of merit to be valid must contain facts
and not mere conclusions of facts.
7. ID.; ID.; WHEN CONCLUSION OF FACT, NOT A FACT, DEEMED
CONTAINED IN AFFIDAVIT. — An affidavit of merit stating no facts, but merely
85 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
an inference that defendant's failure was due to fortuitous events and/or
circumstances beyond his control, is held to contain a conclusion of fact, not a
fact.
DECISION
BENGZON, J.P., J  p:
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
oppose 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; P25,000.09 as moral and exemplary
damages; P2,500.00 as attorney's fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders,
judgment and proceedings and motion for new trial and reconsideration."
Plaintiff moved to strike it out. But the court, on August 2, 1955, ordered the
parties and their attorneys to appear before it on August 23, 1955 "to explore at
this stage of the proceedings the possibility of arriving at an amicable
settlement." It added that should any of them fail to appear "the petition for relief
and the opposition thereto will be deemed submitted for resolution."
On August 23, 1955 defendant failed to appear before the court.
Instead, on the following day his counsel filed a motion to defer for two weeks
the resolution on defendant's petition for relief. The counsel stated that he would
confer with defendant in Cagayan de Oro City — the latter's residence — on the
possibility of an amicable settlement. The court granted two weeks counted
from August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the
court had expired on September 8, 1955 but that defendant and his counsel had
failed to appear.
Another chance for amicable settlement was given by the court in its
order of July 6, 1956 calling the parties and their attorneys to appear on July 13,
1956. This time, however, defendant's counsel informed the court that chances
of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying defendant's
aforesaid petition. Defendant has appealed to this Court.
In his petition of June 21, 1955 in the court a quo defendant alleged
excusable negligence as ground to set aside the judgment by default.
Specifically, it was stated that defendant filed no answer in the belief that an
amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud, accident,
mistake or excusable negligence, must be duly supported by an affidavit of
merit stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.)
86 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Defendant's affidavit of merits attached to his petition of June 21, 1955 stated:
"That he has a good and valid defense against plaintiff's cause of action, his
failure to marry the plaintiff as scheduled having been due to fortuitous event
and/or circumstances beyond his control". An affidavit of merits like this, stating
mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun
Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800,
December 29, 1960.)
Defendant, however, would contend that the affidavit of merits was in
fact unnecessary, or a mere surplusage, because the judgment sought to be set
aside was null and void, it having been based on evidence adduced before the
clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30,
1962, this Court pointed out that the procedure of designating the clerk of court
as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of
the Rules of Court. Now as to defendant's consent to said procedure, the same
did not have to be obtained for he was declared in default and thus had no
standing in court (Velez vs. Ramas, 40 Phil., 787; Alano vs. Court of First
Instance, L-14557, October 30, 1959).
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 dresses 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 aforestated 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.
87 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

||| (Wassmer v. Velez, G.R. No. L-20089, [December 26, 1964], 120 PHIL 1440- In 2000, respondents opened a Joint Peso Account 10 with petitioner's
1447) Pritil-Tondo Branch. 11 As of August 4, 2004, respondents' Joint Peso Account
showed a balance of P2,515,693.52. 12
In May 2002, respondent Rosales accompanied her client Liu Chiu Fang, a
Taiwanese National applying for a retiree's visa from the Philippine Leisure and
SECOND DIVISION Retirement Authority (PLRA), to petitioner's branch in Escolta to open a savings
account, as required by the PLRA. 13 Since Liu Chiu Fang could speak only in
Mandarin, respondent Rosales acted as an interpreter for her. 14 TICaEc
[G.R. No. 183204. January 13, 2014.]
On March 3, 2003, respondents opened with petitioner's Pritil-Tondo Branch
THE METROPOLITAN BANK AND TRUST a Joint Dollar Account 15 with an initial deposit of US$14,000.00. 16
COMPANY, petitioner,vs.ANA GRACE ROSALES AND YO YUK On July 31, 2003, petitioner issued a "Hold Out" order against respondents'
TO,respondents. accounts. 17
On September 3, 2003, petitioner, through its Special Audit Department
Head Antonio Ivan Aguirre, filed before the Office of the Prosecutor of Manila a
DECISION
criminal case for Estafa through False Pretences, Misrepresentation, Deceit, and
Use of Falsified Documents, docketed as I.S. No. 03I-25014, 18 against respondent
Rosales. 19 Petitioner accused respondent Rosales and an unidentified woman as
DEL CASTILLO, J  p: the ones responsible for the unauthorized and fraudulent withdrawal of
US$75,000.00 from Liu Chiu Fang's dollar account with petitioner's Escolta
Bank deposits, which are in the nature of a simple loan or mutuum, 1 must Branch. 20 Petitioner alleged that on February 5, 2003, its branch in Escolta
be paid upon demand by the depositor. 2 received from the PLRA a Withdrawal Clearance for the dollar account of Liu Chiu
This Petition for Review on Certiorari  3 under Rule 45 of the Rules of Fang; 21that in the afternoon of the same day, respondent Rosales went to
Court assails the April 2, 2008 Decision 4 and the May 30, 2008 Resolution 5 of the petitioner's Escolta Branch to inform its Branch Head, Celia A. Gutierrez (Gutierrez),
Court of Appeals (CA) in CA-G.R. CV No. 89086. that Liu Chiu Fang was going to withdraw her dollar deposits in cash; 22 that
Gutierrez told respondent Rosales to come back the following day because the bank
Factual Antecedents did not have enough dollars; 23 that on February 6, 2003, respondent Rosales
Petitioner Metropolitan Bank and Trust Company is a domestic banking accompanied an unidentified impostor of Liu Chiu Fang to the bank; 24 that the
corporation duly organized and existing under the laws of the impostor was able to withdraw Liu Chiu Fang's dollar deposit in the amount of
Philippines. 6 Respondent Ana Grace Rosales (Rosales) is the owner of China US$75,000.00; 25 that on March 3, 2003, respondents opened a dollar account with
Golden Bridge Travel Services, 7 a travel agency. 8 Respondent Yo Yuk To is the petitioner; and that the bank later discovered that the serial numbers of the dollar
mother of respondent Rosales. 9 notes deposited by respondents in the amount of US$11,800.00 were the same as
those withdrawn by the impostor. 26
88 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

Respondent Rosales, however, denied taking part in the fraudulent and
unauthorized withdrawal from the dollar account of Liu Chiu Fang. 27 Respondent
Rosales claimed that she did not go to the bank on February 5, 2003. 28 Neither did
she inform Gutierrez that Liu Chiu Fang was going to close her
account. 29 Respondent Rosales further claimed that after Liu Chiu Fang opened
an account with petitioner, she lost track of her. 30 Respondent Rosales' version of
the events that transpired thereafter is as follows: 
On February 6, 2003, she received a call from Gutierrez informing her that
Liu Chiu Fang was at the bank to close her account. 31 At noon of the same day,
respondent Rosales went to the bank to make a transaction. 32 While she was
transacting with the teller, she caught a glimpse of a woman seated at the desk of
the Branch Operating Officer, Melinda Perez (Perez). 33 After completing her
transaction, respondent Rosales approached Perez who informed her that Liu Chiu
Fang had closed her account and had already left. 34 Perez then gave a copy of the
Withdrawal Clearance issued by the PLRA to respondent Rosales. 35 On June 16,
2003, respondent Rosales received a call from Liu Chiu Fang inquiring about the
extension of her PLRA Visa and her dollar account. 36 It was only then that Liu Chiu
Fang found out that her account had been closed without her
knowledge. 37 Respondent Rosales then went to the bank to inform Gutierrez and
Perez of the unauthorized withdrawal. 38 On June 23, 2003, respondent Rosales
and Liu Chiu Fang went to the PLRA Office, where they were informed that the
Withdrawal Clearance was issued on the basis of a Special Power of Attorney
(SPA) executed by Liu Chiu Fang in favor of a certain Richard So. 39 Liu Chiu Fang,
however, denied executing the SPA. 40 The following day, respondent Rosales, Liu
Chiu Fang, Gutierrez, and Perez met at the PLRA Office to discuss the
unauthorized withdrawal. 41During the conference, the bank officers assured Liu
Chiu Fang that the money would be returned to her. 42
On December 15, 2003, the Office of the City Prosecutor of Manila issued a
Resolution dismissing the criminal case for lack of probable cause. 43 Unfazed,
petitioner moved for reconsideration. DEacIT
On September 10, 2004, respondents filed before the Regional Trial Court
(RTC) of Manila a Complaint 44 for Breach of Obligation and Contract with
Damages, docketed as Civil Case No. 04110895 and raffled to Branch 21, against
petitioner. Respondents alleged that they attempted several times to withdraw their
deposits but were unable to because petitioner had placed their accounts under
"Hold Out" status. 45 No explanation, however, was given by petitioner as to why it
issued the "Hold Out" order. 46 Thus, they prayed that the "Hold Out" order be lifted
and that they be allowed to withdraw their deposits. 47 They likewise prayed for
actual, moral, and exemplary damages, as well as attorney's fees. 48
Petitioner alleged that respondents have no cause of action because it has
a valid reason for issuing the "Hold Out" order. 49 It averred that due to the
fraudulent scheme of respondent Rosales, it was compelled to reimburse Liu Chiu
Fang the amount of US$75,000.00 50 and to file a criminal complaint for Estafa
against respondent Rosales. 51
While the case for breach of contract was being tried, the City Prosecutor of
Manila issued a Resolution dated February 18, 2005, reversing the dismissal of the
criminal complaint. 52 An Information, docketed as Criminal Case No. 05-
236103, 53 was then filed charging respondent Rosales with Estafa before Branch
14 of the RTC of Manila. 54
Ruling of the Regional Trial Court
On January 15, 2007, the RTC rendered a Decision 55 finding petitioner
liable for damages for breach of contract. 56The RTC ruled that it is the duty of
petitioner to release the deposit to respondents as the act of withdrawal of a bank
deposit is an act of demand by the creditor. 57 The RTC also said that the recourse
of petitioner is against its negligent employees and not against respondents.  58 The
dispositive portion of the Decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered ordering [petitioner] METROPOLITAN BANK & TRUST
COMPANY to allow [respondents] ANA GRACE ROSALES and
YO YUK TO to withdraw their Savings and Time Deposits with
the agreed interest, actual damages of P50,000.00, moral
damages of P50,000.00, exemplary damages of P30,000.00 and
10% of the amount due [respondents] as and for attorney's fees
plus the cost of suit. 
The counterclaim of [petitioner] is hereby DISMISSED for
lack of merit.
89 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
SO ORDERED. 59
Ruling of the Court of Appeals
Aggrieved, petitioner appealed to the CA.
On April 2, 2008, the CA affirmed the ruling of the RTC but deleted the
award of actual damages because "the basis for [respondents'] claim for such
damages is the professional fee that they paid to their legal counsel for [respondent]
Rosales' defense against the criminal complaint of [petitioner] for estafa before the
Office of the City Prosecutor of Manila and not this case." 60 Thus, the CA disposed
of the case in this wise:
WHEREFORE, premises considered, the Decision dated
January 15, 2007 of the RTC, Branch 21, Manila in Civil Case
No. 04-110895 is AFFIRMED with MODIFICATION that the
award of actual damages to [respondents] Rosales and Yo Yuk
To is hereby DELETED.
SO ORDERED. 61
Petitioner sought reconsideration but the same was denied by the CA in its
May 30, 2008 Resolution. 62
Issues
Hence, this recourse by petitioner raising the following issues:
A.THE [CA] ERRED IN RULING THAT THE "HOLD-OUT"
PROVISION IN THE APPLICATION AND AGREEMENT
FOR DEPOSIT ACCOUNT DOES NOT APPLY IN THIS
CASE.
B.THE [CA] ERRED WHEN IT RULED THAT PETITIONER'S
EMPLOYEES WERE NEGLIGENT IN RELEASING LIU
CHIU FANG'S FUNDS. DSacAE
C.THE [CA] ERRED IN AFFIRMING THE AWARD OF MORAL
DAMAGES, EXEMPLARY DAMAGES, AND
ATTORNEY'S FEES. 63
Petitioner's Arguments
Petitioner contends that the CA erred in not applying the "Hold Out" clause
stipulated in the Application and Agreement for Deposit Account. 64 It posits that the
said clause applies to any and all kinds of obligation as it does not distinguish
between obligations arising ex contractu or ex delictu. 65 Petitioner also contends
that the fraud committed by respondent Rosales was clearly established by
evidence; 66 thus, it was justified in issuing the "Hold-Out" order. 67
Petitioner likewise denies that its employees were negligent in releasing the
dollars. 68 It claims that it was the deception employed by respondent Rosales that
caused petitioner's employees to release Liu Chiu Fang's funds to the impostor. 69
Lastly, petitioner puts in issue the award of moral and exemplary damages
and attorney's fees. It insists that respondents failed to prove that it acted in bad
faith or in a wanton, fraudulent, oppressive or malevolent manner. 70
Respondents' Arguments
Respondents, on the other hand, argue that there is no legal basis for
petitioner to withhold their deposits because they have no monetary obligation to
petitioner. 71 They insist that petitioner miserably failed to prove its accusations
against respondent Rosales. 72 In fact, no documentary evidence was presented to
show that respondent Rosales participated in the unauthorized withdrawal. 73 They
also question the fact that the list of the serial numbers of the dollar notes
fraudulently withdrawn on February 6, 2003, was not signed or acknowledged by the
alleged impostor. 74Respondents likewise maintain that what was established
during the trial was the negligence of petitioner's employees as they allowed the
withdrawal of the funds without properly verifying the identity of the
depositor. 75 Furthermore, respondents contend that their deposits are in the nature
of a loan; thus, petitioner had the obligation to return the deposits to them upon
demand. 76 Failing to do so makes petitioner liable to pay respondents moral and
exemplary damages, as well as attorney's fees. 77
Our Ruling
The Petition is bereft of merit.
At the outset, the relevant issues in this case are (1) whether petitioner
breached its contract with respondents, and (2) if so, whether it is liable for
90 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
damages. The issue of whether petitioner's employees were negligent in allowing
the withdrawal of Liu Chiu Fang's dollar deposits has no bearing in the resolution of
this case. Thus, we find no need to discuss the same.  indebtedness to the extent of the equal share of the debtor in
The "Hold Out" clause does not apply
to the instant case.
Petitioner claims that it did not breach its contract with respondents
because it has a valid reason for issuing the "Hold Out" order. Petitioner anchors its
right to withhold respondents' deposits on the Application and Agreement for
Deposit Account, which reads:
Authority to Withhold, Sell and/or Set Off:
The Bank is hereby authorized to withhold as security for any
and all obligations with the Bank, all monies, properties or
securities of the Depositor now in or which may hereafter come
into the possession or under the control of the Bank, whether
left with the Bank for safekeeping or otherwise, or coming into
the hands of the Bank in any way, for so much thereof as will
be sufficient to pay any or all obligations incurred by Depositor
under the Account or by reason of any other transactions
between the same parties now existing or hereafter contracted,
to sell in any public or private sale any of such properties or
securities of Depositor, and to apply the proceeds to the
payment of any Depositor's obligations heretofore mentioned.
xxx xxx xxx
JOINT ACCOUNT
xxx xxx xxx
The Bank may, at any time in its discretion and with or without
notice to all of the Depositors, assert a lien on any balance of
the Account and apply all or any part thereof against any
indebtedness, matured or unmatured, that may then be owing
to the Bank by any or all of the Depositors. It is understood that
if said indebtedness is only owing from any of the Depositors,
then this provision constitutes the consent by all of the
depositors to have the Account answer for the said
the amount credited to the Account. 78 aETDIc
Petitioner's reliance on the "Hold Out" clause in the Application and
Agreement for Deposit Account is misplaced.
The "Hold Out" clause applies only if there is a valid and existing obligation
arising from any of the sources of obligation enumerated in Article 1157 79 of
the Civil Code, to wit: law, contracts, quasi-contracts, delict, and quasi-delict. In this
case, petitioner failed to show that respondents have an obligation to it under any
law, contract, quasi-contract, delict, or quasi-delict. And although a criminal case
was filed by petitioner against respondent Rosales, this is not enough reason for
petitioner to issue a "Hold Out" order as the case is still pending and no final
judgment of conviction has been rendered against respondent Rosales. In fact, it is
significant to note that at the time petitioner issued the "Hold Out" order, the criminal
complaint had not yet been filed. Thus, considering that respondent Rosales is not
liable under any of the five sources of obligation, there was no legal basis for
petitioner to issue the "Hold Out" order. Accordingly, we agree with the findings of
the RTC and the CA that the "Hold Out" clause does not apply in the instant case.
In view of the foregoing, we find that petitioner is guilty of breach of contract
when it unjustifiably refused to release respondents' deposit despite demand.
Having breached its contract with respondents, petitioner is liable for damages.
Respondents are entitled to moral and
exemplary damages and attorney's fees.
In cases of breach of contract, moral damages may be recovered only if the
defendant acted fraudulently or in bad faith, 80 or is "guilty of gross negligence
amounting to bad faith, or in wanton disregard of his contractual obligations." 81
In this case, a review of the circumstances surrounding the issuance of the
"Hold Out" order reveals that petitioner issued the "Hold Out" order in bad faith. First
of all, the order was issued without any legal basis. Second, petitioner did not inform
respondents of the reason for the "Hold Out." 82 Third, the order was issued prior to
the filing of the criminal complaint. Records show that the "Hold Out" order was
91 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0

issued on July 31, 2003, 83 while the criminal complaint was filed only on
September 3, 2003. 84 All these taken together lead us to conclude that petitioner
acted in bad faith when it breached its contract with respondents. As we see it then,
respondents are entitled to moral damages. THIRD DIVISION

As to the award of exemplary damages, Article 2229 85 of the Civil [G.R. No. 168906. December 4, 2008.]
Code provides that exemplary damages may be imposed "by way of example or
correction for the public good, in addition to the moral, temperate, liquidated or
compensatory damages." They are awarded only if the guilty party acted in a PERLA S. ESGUERRA, petitioner, vs. JUDGE FATIMA
wanton, fraudulent, reckless, oppressive or malevolent manner. 86 GONZALES-ASDALA, J. WALTER THOMPSON COMPANY
(PHILS.), INC., and AGL MARKET RESEARCH
In this case, we find that petitioner indeed acted in a wanton, fraudulent, INCORPORATED, respondents.
reckless, oppressive or malevolent manner when it refused to release the deposits
of respondents without any legal basis. We need not belabor the fact that the
banking industry is impressed with public interest. 87 As such, "the highest degree
DECISION
of diligence is expected, and high standards of integrity and performance are even
required of it." 88 It must therefore "treat the accounts of its depositors with
meticulous care and always to have in mind the fiduciary nature of its relationship
with them." 89 For failing to do this, an award of exemplary damages is justified to CHICO-NAZARIO, J  p:
set an example. Assailed in this Petition for Review under Rule 45 of the Rules of Court
The award of attorney's fees is likewise proper pursuant to paragraph 1, are the Decision 1 dated 31 March 2005 of the Court of Appeals in CA-G.R. SP
Article 2208 90 of the Civil Code. No. 79075 which denied the Petition for Prohibition
and Certiorari/Mandamus with application for Temporary Restraining Order and
In closing, it must be stressed that while we recognize that petitioner has Writ of Preliminary Injunction of petitioner Perla S. Esguerra (Esguerra); and the
the right to protect itself from fraud or suspicions of fraud, the exercise of this right Resolution 2 dated 12 July 2005 of the appellate court in the same case
should be done within the bounds of the law and in accordance with due process, denying petitioner's Motion for Reconsideration. cTCADI
and not in bad faith or in a wanton disregard of its contractual obligation to
respondents. CTDHSE Esguerra is a licensed nutritionist-dietitian presently employed as the
Chief Dietitian of the Philippine Heart Center (PHC), located at East Avenue,
WHEREFORE,the Petition is hereby DENIED.The assailed April 2, 2008 Diliman, Quezon City. Respondents J. Walter Thompson Company 3 (JWT) and
Decision and the May 30, 2008 Resolution of the Court of Appeals in CA-G.R. CV AGL Market Research, Inc. (AGL) are corporations duly organized and existing
No. 89086 are hereby AFFIRMED. under Philippine laws. On 15 May 2000, AB Food and Beverages 4 Philippines
SO ORDERED. (AB Food) entered into a contract with JWT whereby the latter would handle the
advertising, marketing, promotional and general publicity requirements of the
||| (Metropolitan Bank and Trust Co. v. Rosales, G.R. No. 183204, [January 13, former.
2014], 724 PHIL 66-80)
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Esguerra filed an Amended Complaint 5 for Damages with Prayer for
Preliminary Injunction and Temporary Restraining Order against JWT and AGL,
which was docketed as Civil Case No. Q-03-50205 and raffled to Branch 87 of
the Quezon City Regional Trial Court (RTC), presided by respondent Judge
Fatima Gonzales-Asdala (Judge Asdala).
In her Amended Complaint, Esguerra alleged that on 14 May 2003,
AGL, thru its Director/General Manager Nicanor G. Aguirre (Aguirre), wrote a
letter to the PHC, inviting nutritionists from the said hospital to participate in a
study it was conducting. Aguirre gave the assurance that "all information that
would be generated from this study would be kept completely confidential", and
the AGL representative bearing the letter made it understood that, among other
things, a talent fee of P20,000.00 would be paid to the nutritionist who would be
chosen to appear in a commercial that would subsequently be shot.  commercial; (b) she wrote a letter dated 17 June 2003 to JWT, copy furnished
Esguerra narrated that she showed up at the Cravings Restaurant in
San Juan at the appointed time on 16 May 2003 to participate in the AGL
"study". The first stage thereof consisted in being "interviewed" by a lady about
two unnamed products with disclosed ingredients and nutrients; the second
product had evidently higher nutrients. Esguerra was requested to compare the
two products and asked whether she would endorse use of the higher-nutrient
product. In the second stage of the supposed study, Esguerra was taken inside
a room where she was asked additional questions by another lady, while a man,
apparently representing JWT, focused a video-camera on her. She was then
asked to uncover and find out for herself the product she preferred to endorse.
Her candid reaction to the "discovery" was that it was Ovaltine. The incident
was taped on the video-camera. As Esguerra emerged from the room, a third
lady approached her asking her to sign a piece of paper and telling her that it
had to do with the taping that just took place. Since she was in a hurry to keep
another appointment in Quezon City, Esguerra signed the document, which
appeared to be a contract of agreement, but expressly writing at the side thereof
that in case she would be chosen to appear in the commercial, which she
thought would still be shot at some future time, clearance from the Director of
the PHC must first be obtained before such commercial may be shown to the
public. Esguerra also verbally informed the third lady of this condition.  1) Pending hearing on the application for preliminary
On 16 June 2003, at about noontime, an Ovaltine commercial was aired
on television with Esguerra appearing therein. The said commercial showed a
portion of Esguerra's interview videotaped on 16 May 2003. According to
Esguerra, there was absolutely no advice from either JWT or AGL prior to the
airing of the commercial that she had been chosen to so appear therein. Neither
did JWT and AGL secure the required clearance from the PHC Director nor did
they pay Esguerra any talent fee for the commercial.
That same afternoon of 16 June 2003, after being informed of the
unexpected airing of the Ovaltine commercial, and fearful of any adverse
consequences, disciplinary sanction, or misunderstanding which may result
therefrom, Esguerra allegedly took the following actions: (a) she immediately
called up JWT Account Director Joef Peña to protest against the showing of the
AGL, to formally protest the airing of the commercial and to demand the
immediate pull-out of the same; and (c) she furnished the PHC Director and her
Association with copies of her 17 June 2003 letter to inform and explain to them
that what happened anent the Ovaltine commercial was not of her
volition. EDIaSH
Esguerra averred that JWT responded by transmitting to her, on 24
June 2003, a communication officially informing her for the first time of her
selection as one of those who would appear in the Ovaltine commercial, for
which she would receive remuneration in the amount of P5,000.00. Not satisfied
therewith, Esguerra, through her counsel, wrote JWT on 4 July 2003 a second
missive seeking, among other demands, the immediate cessation of the airing
of the Ovaltine commercial and payment of the agreed upon talent fee of
P20,000.00. Despite her letter-protest, received by JWT and AGL, the Ovaltine
commercial showing Esguerra continued to be broadcasted on a daily basis up
to the time she instituted Civil Case No. Q-03-50205. cADaIH
Esguerra thus prayed of the RTC-Branch 87 the following:
WHEREFORE, premises considered, [herein petitioner
Esguerra] most respectfully prays of this Honorable Court that:
injunction, a Temporary Restraining Order be
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immediately issued enjoining [herein
respondents JWT and AGL] from airing the
subject Ovaltine commercial featuring the
appearance therein of [Esguerra]; and after such
hearing, for a preliminary prohibitory injunction to
issue against such airing;
2) Following trial on the merits, judgment be rendered in
favor of [Esguerra] and against [JWT and AGL],
making said injunction already permanent, and
further ordering [JWT and AGL] as follows:
a) To pay the amount of P20,000.00 as
[Esguerra's] talent fee plus interest at
the legal rate thereon until fully
paid; IECcaA
b) To pay the sum of P200,000.00 as and by
way of moral damages;
c) To pay the sum of P300,000.00 as and by way
of exemplary damages;
d) To pay an amount equivalent to 25% of the
amount due, as and by way of attorney's
fees;
e) To pay the costs of suit. 6
Esguerra claimed to have made several inquiries on the status of her
application for preliminary injunction and/or Temporary Restraining Order (TRO)
with the RTC Branch Clerk of Court. She was assured that her application
would be set for hearing. After almost three weeks of waiting without her
application for injunctive relief being set for hearing, Esguerra filed on 26 August
2003 an Urgent Motion for Inhibition of RTC Judge Asdala, asserting therein
that "by failing to act swiftly on her application for TRO as mandated under the
law, [RTC Judge Asdala] has already displayed partiality and bias against her
and in favor of the [herein respondents JWT and AGL], whether or not for
'valuable' consideration."
RTC-Branch 87, however, subsequently issued an Order dated 28
August 2003 in which it ruled on Esguerra's application for preliminary injunction
and/or TRO, thus: TCDHIc
From the given facts (par. 2, 3, 4, 5, 6, 7 and 8) in the
complaint, this Court finds that not only did [herein petitioner
Esguerra] clearly fail to point the specific acts committed by
each of the [herein respondents JWT and AGL] in alleged
violation of her right or which has caused her or will cause her
injustice, [Esguerra] likewise failed to show in her application
the material and substantial right she claims to have been
invaded by [JWT and AGL] to warrant the issuance of
preliminary injunction.
Since facts have not been sufficiently shown by
[Esguerra] in her application to bring her case within the
conditions required by Sec. 3, Rule 58, 7 this Court has to
refuse injunction, more considering the fact that the action for
damages which [Esguerra] has already instituted against [JWT
and AGL] would adequately compensate the injuries caused
her.
From an overall judicious examination of [Esguerra's]
allegation in support of her application for injunction, this Court
finds that issuance of an injunctive relief based on the facts
obtaining is not warranted.
WHEREFORE, [Esguerra's] application for injunction is
DENIED for lack of merit. 8
This led Esguerra to file another Urgent Motion 9 which sought, among
other reliefs, reconsideration of the Order dated 28 August 2003 of RTC-Branch
87 and resolution of her Motion for Inhibition. She averred in her Urgent Motion
that the denial of her application for injunctive relief was highly irregular, having
been issued without a summary hearing, in violation of the provisions of Section
4 (d), Rule 58 of the 1997 Rules of Civil Procedure.
However, without waiting for the resolution of her Urgent Motion by
RTC-Branch 87, Esguerra filed a Petition 10before the Court of Appeals,
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docketed as CA-G.R. SP No. 79075, in which she sought the issuance of: (a) an
Order to expedite the proceedings in Civil Case No. Q-03-50205; (b) a Writ of
Prohibition permanently enjoining Judge Asdala of RTC-Branch 87 from
conducting further proceedings in Civil Case No. Q-03-50205 and an Order to
re-raffle the said case to another judge; and (c) a Writ of Certiorari to annul and
set aside the denial of Esguerra's application for injunction/TRO. In the
alternative, Esguerra prayed for the issuance of: (a) a Writ
of Mandamus  ordering Judge Asdala to conduct summary hearing on
Esguerra's application for injunction/TRO; (b) an Order directing Judge Asdala
to pay damages sustained by Esguerra; and (c) an Order enjoining Judge
Asdala from conducting further proceedings in Civil Case No. Q-03-50205.  that, plaintiff did not, complacent, that the Court will overlook
 
On 3 September 2003, Judge Asdala issued an Order explaining why
no hearing was conducted on the prayer for TRO filed by Esguerra. The Order
of Judge Asdala reads:
Sec. 4, Rule 58 of the Revised Rules of Civil Procedure
provides that, a preliminary injunction or temporary restraining
order may be granted only when: (a) the application in the
action or proceedings is verified, and (b) the application shows
facts entitling the applicant to the relief demanded. The Rules
further states that the application for a temporary restraining
order shall only be acted upon in a summary proceeding which
shall be conducted within 24 hours after the sheriff's return of
service and/or the records are received by the branch selected
by raffle. From this particular provision, it is clear that the
conduct of a summary hearing within 24 hours after the sheriff's
return of service is subject to the condition that the summons,
as well as, the complaint and the verified application for
temporary restraining order have been properly served upon
the adverse parties, which requirement however, has not been
satisfied in the instant case.
A perusal of the record shows that there is no verified
application for temporary restraining order on record, neither is
it shown that the applicant has provided the adverse parties
with any verified affidavit in support of her application. What is
shown is service of the summons and the amended complaint
to only one defendant, J. Walter Thompson Company (Phils.),
but not to defendant AGL Market. Indeed, there are more
reasons than one, as to why this Court did not conduct a
summary hearing within the 24 hours period after the sheriff's
return of service of summons to defendant J. Walter Thompson
and those reasons are, as just stated. TAIaHE
Plaintiff's complaint at the inception was already
defective but despite sufficient time allowed for her to correct
them in her favor. With such defects and the filing of the
amended complaint, on August 7, 2003, eight (8) days after the
Sheriff's return showing that service of summons and the
complaint without a verified affidavit or verified application for
temporary restraining order, the Court is not obliged to conduct
a summary hearing, because the essential "time element" is
deemed to have been waived by the plaintiff herself when she
filed the amended complaint only on August 7, 2003; the non-
service of the complaint and affidavit/application for temporary
restraining order to the defendants. 11
In the meantime, during the pendency of CA-G.R. SP No. 79075 before
the Court of Appeals, Judge Asdala issued an Order 12 dated 18 September
2003, inhibiting herself from Civil Case No. Q-03-50205. Civil Case No. Q-03-
50205 was then re-raffled on 2 October 2003 13 to the Quezon City RTC-
Branch 215, presided over by Judge Maria Luisa Quijano-Padilla (Judge
Padilla). cDEICH
At the hearing held on 10 October 2003, Esguerra informed the trial
court (Branch 215) that the Ovaltine advertisement had ceased to be aired on
television and that she was therefore desisting from asking for the temporary
restraining order and/or injunction without prejudice to again avail herself of the
said reliefs should the showing thereof resume. 14
Acting on Esguerra's motion, RTC-Branch 215 issued an Order dated
27 October 2003, in which it decreed:
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WHEREFORE, premises considered, this Court
declares as follows:
a) The application for TRO is rendered moot and
academic by the manifestation of [herein petitioner
Esguerra] that she is withdrawing the same with a
reservation to revive should it be deemed
necessary; CHcESa
b) The Motion for Reconsideration of the denial
of the application for preliminary injunction is likewise
rendered moot and academic pursuant to the above-cited
reason;
c) The Motion to Admit Answer filed by [herein
respondent] J. Walter Thompson is granted;
d) The Urgent Motion (to declare [herein
respondent] J. Walter Thompson in default) is rendered
moot and academic with the admission of the Answer of
said [respondent]. 15
Again, claiming that the airing of the commercial resumed, Esguerra
filed another Urgent Motion 16 once more urging the RTC-Branch 215 to issue
a preliminary injunction/TRO as she originally prayed for in her Amended
Complaint in Civil Case No. Q-03-50205.  her judicial function. Esguerra assailed in her Petition an official act of Judge
On 14 November 2003, RTC-Branch 215 issued an Order granting the
TRO Esguerra prayed for, to wit:
Accordingly, let a temporary restraining order issue
against the [herein respondents] J. Walter Thompson Company
(Phils.) Inc., AGL Market Research Incorporated, and AB Food
and Beverage Philippines, directing them to cease and desist
from airing on different television networks the commercial of
Ovaltine where [herein petitioner Esguerra] appears as an
endorser of said product for a period of twenty (20) days from
receipt of this Order.
The hearing of the application for preliminary injunction
set on November 19, 2003 is maintained. 17
After conducting a hearing on the application for preliminary injunction prayed
for by Esguerra, RTC-Branch 215 issued on 8 June 2004 another Order
likewise granting Esguerra's application for preliminary injunction:
WHEREFORE, let a writ of preliminary injunction be
issued restraining and enjoining [respondents] from airing the
subject commercial pending the resolution of the main case
upon posting of a bond in the amount of Five Hundred
Thousand (P500,000.00) Pesos pursuant to Sec. 5, Rule 58 of
the 1997 Rules of Civil Procedure. HaAIES
Let this case be set for pre-trial conference on July 14,
2004 at 8:30 a.m. 18
Henceforth, RTC-Branch 215 carried on with the proceedings in Civil
Case No. Q-03-50205.
Since Esguerra did not withdraw her Petition in CA-G.R. SP No. 79075,
the Court of Appeals also proceeded with the same.
In its Decision dated 31 March 2005, the Court of Appeals dismissed
Esguerra's Petition. It reasoned that Judge Asdala resolved Esguerra's
application for injunction/TRO in Civil Case No. Q-03-50205 in the exercise of
Asdala, for which the latter cannot be made answerable for damages.
The Court of Appeals also pointed out in its Decision that the writ
of certiorari is an extraordinary remedy available only when there is no plain,
speedy and adequate remedy in the ordinary course of law; and in this case, the
writ of certiorari is a remedy not yet available to Esguerra at the time she filed
her Petition for the same. It noted that Esguerra filed her Petition even before
the resolution by the RTC-Branch 87 of her motion for reconsideration of its
Order dated 28 August 2003. And even though Esguerra already withdrew her
application for injunction/TRO, the denial of which by RTC-Branch 87 she was
assailing in her Petition, she still wanted to pursue the Petition in apprehension
that her reinstated application for injunctive relief would again be denied by
96 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
RTC-Branch 215. This practice of taking shortcuts of the established rules of
procedure would not be countenanced by the appellate court. 19
Esguerra's Motion for Reconsideration 20 of the Decision dated 31
March 2005 of the Court of Appeals was denied by the same court in its
Resolution dated 12 July 2005. 21
Esguerra is presently before us  via  the Petition at bar, raising the
following issues:
1) Whether or not the case had become totally moot and
academic.
2) Whether or not the public respondent may be held liable for
damages.
3) What is the amount of damages that should be awarded. 22
Esguerra wants us not only to reverse and set aside the assailed
Decision and Resolution of the Court of Appeals, but also to hold Judge Asdala
answerable for damages in the amount of P2.2 million, plus costs of suit and
attorney's fees. ESacHC
In sum, Esguerra asserts that she suffered damages by reason of the
continued showing of the offending commercial from the time the TRO should
have been issued by Judge Asdala of RTC-Branch 87, to the time it was
actually issued by Judge Padilla of RTC-Branch 215. By Esguerra's
determination, Judge Asdala could and should have issued the TRO as early as
1 August 2003, since summons were already served on respondents on 29 July
2003 and Civil Case No. Q-03-50205 was raffled to the RTC-Branch 87 on 31
July 2003. Under Section 4 (d) of Rule 58, Judge Asdala was obliged to already
conduct a summary hearing on Esguerra's application by the very next day, 1
August 2003, but Judge Asdala dilly-dallied in acting on the application too long.
From 1 August 2003 to 17 November 2003, the date when JWT and AGL
received copies of the Order dated 14 November 2003 of RTC-Branch 215
granting a TRO in Esguerra's favor and, when the showing of the Ovaltine
commercial was actually stopped, the said commercial was already shown 110
times more. 23 Worse, Judge Asdala also delayed ruling on Esguerra's Motion
for Inhibition. Esguerra bases her claim for damages on the omission or failure
of Judge Asdala to do what was clearly required of her by the law.
The Petition is not meritorious. The Court of Appeals did not err in
dismissing Esguerra's Petition in CA-G.R. SP No. 79075.
Esguerra's Petition before the Court of Appeals is one
for certiorari, prohibition, as well as mandamus, all special remedies under Rule
65 of the Rules of Court, relevant provisions of which read: 
SEC. 1. Petition for Certiorari. — When any tribunal,
board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings
of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
SEC. 2. Petition for Prohibition . — When the
proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent to desist
from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and
justice may require. ACcEHI
SEC. 3. Petition for mandamus. — When any tribunal,
corporation, board, officer or person unlawfully neglects the
97 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy, and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.
It does well for Esguerra to remember that at the threshold of every
special civil action under Rule 65, the person seeking the writs must be able to
show, on pain of dismissal of his petition, that his resort to such extraordinary
remedy is justified by the "absence of an appeal or any plain, speedy and
adequate remedy in the ordinary course of law". Esguerra utterly fails in this
regard for there is nothing in her Petition in CA-G.R. SP No. 79075, not even an
allegation therein, that she had no appeal or any other efficacious remedy
against the 28 August 2003 Order of RTC-Branch 87 denying her application for
preliminary injunction. The Court of Appeals, therefore, was compelled to
dismiss Esguerra's Petition in CA-G.R. SP No. 79075.  judges are not liable to respond in a civil action for damages, and are not
As the Court of Appeals noted, at the time Esguerra filed her Petition in
CA-G.R. SP No. 79075, her motion for reconsideration of the Order dated 28
August 2003 of RTC-Branch 87 denying her application for injunctive relief was
still pending. This only shows that the remedy of a motion for reconsideration
from the adverse 28 August 2003 Order of RTC-Branch 87 was still available to,
and was in fact, availed of by Esguerra.
Esguerra would also later on withdraw her application for preliminary
injunction/TRO. At this point, the question of whether RTC-Branch 87 properly
denied the said application, became moot and academic. 24 There is no more
justiciable controversy insofar as the denial of the petition for preliminary
injunction/TRO is concerned, so that a declaration thereon would be of no
practical use or value. There is no actual substantial relief in this regard to which
Esguerra would be entitled and which would be negated by the dismissal of her
Petition in CA-G.R. SP No. 79075 by the appellate court. 25 Courts of justice
constituted to pass upon substantial rights will not consider questions in which
no actual interests are involved. Courts will not determine a moot
question. 26 aICHEc
Esguerra still insists that her Petition in CA-G.R. SP No. 79075 cannot
be moot and academic because the issue of Judge Asdala's liability for the
damages Esguerra sustained survived Esguerra's withdrawal of her application
for injunctive relief and Judge Asdala's inhibition from Civil Case No. Q-03-
50206, and still needed to be resolved.
It is indubitable that Judge Asdala's Order dated 28 August 2003
denying Esguerra's application for a preliminary injunction/TRO was rendered in
the exercise of her official function as the Presiding Judge of RTC-Branch 87
which had jurisdiction over Civil Case No. Q-03-50206 and all its incidents,
including the said application. Judges cannot be subjected to liability — civil,
criminal or administrative — for any of their official acts, no matter how
erroneous, so long as they act in good faith. It is only when they act fraudulently
or corruptly, or with gross ignorance, may they be held criminally or
administratively responsible. 27
In Ang v. Quilala, 28 we further explained that it is settled doctrine that
otherwise administratively responsible for what they may do in the exercise of
their judicial functions when acting within their legal powers and jurisdiction.
Certain it is that a judge may not be held administratively accountable for every
erroneous order or decision he renders. To hold otherwise would be to render
judicial office untenable, for no one called upon to try the facts or interpret the
law in the process of administering justice can be infallible in his judgment. More
importantly, the error must be gross or patent, deliberate and malicious, or
incurred with evident bad faith. Bad faith does not simply connote bad judgment
or negligence; it imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong, a breach of a sworn duty through some motive or
intent or ill will; it partakes of the nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or some motive of self-interest or ill
will for ulterior purposes. 
98 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Although Ang v. Quilala  is an administrative case, our pronouncements
therein are equally relevant to the instant case, a special civil action
for certiorari, prohibition, and mandamus, in which petitioner Esguerra
additionally seeks civil compensation from Judge Asdala. Not every error
committed by a judge in the exercise of his official functions would make him
liable for the damages which a party may sustain by reason thereof, unless it is
shown that such error was so gross or patent, deliberate and malicious, or
incurred with evident bad faith.
The records do not show that Judge Asdala was moved by bad faith, ill
will or malicious intent when she did not grant the TRO and preliminary
injunction Esguerra prayed for. Bad faith must be proved by clear and
convincing evidence. 29 It is not presumed and the party who alleges the same
has the onus  of proving it. 30 Esguerra has not, in fact, adduced any proof to
show that impropriety attended the actions of Judge Asdala. CaTSEA
While we have earlier ruled that the question of the propriety of the
denial of the application for preliminary injunction has become moot and
academic, still let it be stated that Judge Asdala's ruling is not manifestly unjust
nor did it constitute gross ignorance. Her reasons for denying Esguerra's
application for injunctive relief were clearly stated in her Order of 28 August
2003. She had obviously applied therein the basic requirements, as laid down in
jurisprudence, for entitlement to injunctive relief and found that Esguerra's
application failed to comply with the requisites. IcDHaT
We also refer Esguerra to Section 5, Rule 65 of the Rules of Court,
governing her Petition before the Court of Appeals, which provides:
SEC. 5. Respondents and costs in certain cases . —
When the petition filed relates to the acts or omissions of a
judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person, the petitioner shall join, as private respondent
or respondents with such public respondent or respondents,
the person or persons interested in sustaining the proceedings
in the court; and it shall be the duty of such private respondents
to appear and defend, both in his or their own behalf and in
behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in
favor of the petitioner shall be against the private respondents
only, and not against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person impleaded as
public respondent or respondents.
Unless otherwise specifically directed by the court
where the petition is pending, the public respondents shall not
appear in or file an answer or comment to the petition or any
pleading therein. If the case is elevated to a higher court by
either party, the public respondents shall be included therein as
nominal parties. However, unless otherwise specifically
directed by the court, they shall not appear or participate in the
proceedings therein. 
It is clear from the foregoing that in petitions for certiorari, prohibition,
and mandamus, the public respondent, such as Judge Asdala herein, should
not actively participate in the proceedings as a general rule, unless directed
otherwise by the court. The inclusion of the public respondent in such petitions
is more of a formality, since it is still the private respondent/s who must contest
the said petitions. It is likewise explicitly stated in the afore-quoted provision that
the public respondent in petitions under Rule 65 shall not be liable for the costs
which may be awarded to the petitioner/s. It can be rationally deduced
therefrom that in such petitions, the public respondent is not meant to incur or
shoulder personal liability for his official actions, even if the writs
of certiorari, prohibition or mandamus  are so issued against him.
Esguerra's subsequent reinstatement of her application for
injunction/TRO before RTC-Branch 215 did not revive the grounds for her
Petition in CA-G.R. SP No. 79075. She sought recourse with the Court of
Appeals because RTC-Branch 87 denied her previous application for injunctive
relief. In contrast, RTC-Branch 215, upon reinstatement by Esguerra of her
application, actually granted her a TRO and also a preliminary injunction.
Esguerra, however, cannot use her reinstated application for injunctive relief
which
99 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
was favorably acted upon by RTC-Branch 215, as the basis for her then
pending Petition before the Court of Appeals in CA-G.R. SP No. 79075. This,
certainly, will be repugnant to the fundamental due process which Judge Asdala
must not be deprived of. cCAIDS
Finally, Esguerra is still litigating her civil case against JWT and AGL
before RTC-Branch 215, Quezon City, in which she also prays for
compensation for the damages she had suffered from the airing of the Ovaltine
commercial. To insist on recovering damages from Judge Asdala for the same
act, i.e., the showing of the Ovaltine commercial, suspiciously appears to be an
attempt to recover double compensation.
WHEREFORE, premises considered, the instant Petition is denied for
lack of merit. The Decision of the Court of Appeals dated 31 March 2005 and its
Resolution dated 12 July 2005 CA-G.R. SP No. 79075 are AFFIRMED. Costs
against petitioner. ATcaID
SO ORDERED.
||| (Esguerra v. Gonzales-Asdala, G.R. No. 168906, [December 4, 2008], 593 PHIL
458-476)
SECOND DIVISION
[G.R. No. 179736. June 26, 2013.]
SPOUSES BILL AND VICTORIA HING, petitioners, vs.
ALEXANDER CHOACHUY, SR. and ALLAN
CHOACHUY, respondents.
DECISION
DEL CASTILLO, J  p:
"The concept of liberty would be emasculated if it does not likewise compel
respect for [one's] personality as a unique individual whose claim to privacy and
[non]-interference demands respect." 1
This Petition for Review on Certiorari 2 under Rule 45 of the Rules of
Court assails the July 10, 2007 Decision 3 and the September 11, 2007
Resolution 4 of the Court of Appeals (CA) in CA-G.R. CEB-SP No. 01473. 
Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the
Regional Trial Court (RTC) of Mandaue City a Complaint 5 for Injunction and
Damages with prayer for issuance of a Writ of Preliminary Mandatory
Injunction/Temporary Restraining Order (TRO), docketed as Civil Case MAN-5223
and raffled to Branch 28, against respondents Alexander Choachuy, Sr. and Allan
Choachuy.
Petitioners alleged that they are the registered owners of a parcel of land
(Lot 1900-B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in
Barangay Basak, City of Mandaue, Cebu; 6 that respondents are the owners of Aldo
Development & Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent to
the property of petitioners; 7that respondents constructed an auto-repair shop
building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a
case against petitioners for Injunction and Damages with Writ of Preliminary
Injunction/TRO, docketed as Civil Case No. MAN-5125; 8 that in that case, Aldo
claimed that petitioners were constructing a fence without a valid permit and that the
said construction would destroy the wall of its building, which is adjacent to
petitioners' property; 9 that the court, in that case, denied Aldo's application for
preliminary injunction for failure to substantiate its allegations; 10 that, in order to get
evidence to support the said case, respondents on June 13, 2005 illegally set-up
and installed on the building of Aldo Goodyear Servitec two video surveillance
cameras facing petitioners' property; 11 that respondents, through their employees
and without the consent of petitioners, also took pictures of petitioners' on-going
construction; 12 and that the acts of respondents violate petitioners' right to
100 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
privacy. 13 Thus, petitioners prayed that respondents be ordered to remove the
video surveillance cameras and enjoined from conducting illegal surveillance. 14
In their Answer with Counterclaim, 15 respondents claimed that they did not
install the video surveillance cameras, 16 nor did they order their employees to take
pictures of petitioners' construction. 17 They also clarified that they are not the
owners of Aldo but are mere stockholders. 18
Ruling of the Regional Trial Court  that since respondents are not the owners of the building, they could not have
On October 18, 2005, the RTC issued an Order 19 granting the application
for a TRO. The dispositive portion of the said Order reads: EAaHTI
WHEREFORE, the application for a [T]emporary
[R]estraining [O]rder or a [W]rit of [P]reliminary [I]njunction is
granted. Upon the filing and approval of a bond by [petitioners],
which the Court sets at P50,000.00, let a [W]rit of [P]reliminary
[I]njunction issue against the [respondents] Alexander Choachuy,
Sr. and Allan Choachuy. They are hereby directed to immediately
remove the revolving camera that they installed at the left side of
their building overlooking the side of [petitioners'] lot and to
transfer and operate it elsewhere at the back where [petitioners']
property can no longer be viewed within a distance of about 2-3
meters from the left corner of Aldo Servitec, facing the road.
IT IS SO ORDERED. 20
Respondents moved for a reconsideration 21 but the RTC denied the same
in its Order 22 dated February 6, 2006. 23Thus:
WHEREFORE, the Motion for Reconsideration is hereby
DENIED for lack of merit. Issue a [W]rit of [P]reliminary
[I]njunction in consonance with the Order dated 18 October 2005.
IT IS SO ORDERED. 24
Aggrieved, respondents filed with the CA a Petition for Certiorari 25 under
Rule 65 of the Rules of Court with application for a TRO and/or Writ of Preliminary
Injunction.  ON THE GROUND THAT THERE IS NO VIOLATION OF
Ruling of the Court of Appeals
On July 10, 2007, the CA issued its Decision 26 granting the Petition
for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued with
grave abuse of discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ. 27 The CA explained that the right to privacy
of residence under Article 26 (1) of the Civil Code was not violated since the
property subject of the controversy is not used as a residence. 28 The CA also said
installed video surveillance cameras. 29 They are mere stockholders of Aldo, which
has a separate juridical personality. 30 Thus, they are not the proper
parties. 31 The fallo reads:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by us GRANTING the petition filed
in this case. The assailed orders dated October 18, 2005 and
February 6, 200[6] issued by the respondent judge are
hereby ANNULLED and SET ASIDE.
SO ORDERED. 32
Issues
Hence, this recourse by petitioners arguing that: ECcTaH
I.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT
ANNULLED AND SET ASIDE THE ORDERS OF THE [RTC]
DATED 18 OCTOBER 2005 AND 6 FEBRUARY 2006
HOLDING THAT THEY WERE ISSUED WITH GRAVE ABUSE
OF DISCRETION.
II.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT
RULED THAT PETITIONER SPOUSES HING ARE NOT
ENTITLED TO THE WRIT OF PRELIMINARY INJUNCTION
THEIR CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY
101 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
DESPITE THE FACTUAL FINDINGS [OF] THE RTC, WHICH
RESPONDENTS CHOACHUY FAILED TO REFUTE, THAT
THE ILLEGALLY INSTALLED SURVEILLANCE CAMERAS OF
RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE
PRIVATE ACTIVITIES OF PETITIONER SPOUSES HING,
THEIR CHILDREN AND EMPLOYEES.
III.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT
RULED THAT SINCE THE OWNER OF THE BUILDING IS
ALDO DEVELOPMENT AND RESOURCES, INC. THEN TO
SUE RESPONDENTS CHOACHUY CONSTITUTE[S] A
PURPORTEDLY UNWARRANTED PIERCING OF THE
CORPORATE VEIL.  of the video surveillance cameras as these were installed by Aldo, the registered
IV.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT
IGNORED THE SERIOUS FORMAL DEFICIENCIES OF BOTH
THE PETITION AND THE MOTION FOR
RECONSIDERATION DATED 15 MARCH 2006 OF
RESPONDENT[S] CHOACH[U]Y AND GAVE . . . THEM DUE
COURSE AND CONSIDERATION. 33
Essentially, the issues boil down to (1) whether there is a violation of
petitioners' right to privacy, and (2) whether respondents are the proper parties to
this suit.
Petitioners' Arguments
Petitioners insist that they are entitled to the issuance of a Writ of
Preliminary Injunction because respondents' installation of a stationary camera
directly facing petitioners' property and a revolving camera covering a significant
portion of the same property constitutes a violation of petitioners' right to
privacy. 34 Petitioners cite Article 26 (1) of theCivil Code, which enjoins persons
from prying into the private lives of others. 35 Although the said provision pertains to
the privacy of another's residence, petitioners opine that it includes business offices,
citing Professor Arturo M. Tolentino. 36 Thus, even assuming arguendo that
petitioners' property is used for business, it is still covered by the said provision. 37
As to whether respondents are the proper parties to implead in this case,
petitioners claim that respondents and Aldo are one and the same, and that
respondents only want to hide behind Aldo's corporate fiction. 38 They point out that
if respondents are not the real owners of the building, where the video surveillance
cameras were installed, then they had no business consenting to the ocular
inspection conducted by the court. 39
Respondents' Arguments
Respondents, on the other hand, echo the ruling of the CA that petitioners
cannot invoke their right to privacy since the property involved is not used as a
residence. 40 Respondents maintain that they had nothing to do with the installation
owner of the building, 41 as additional security for its building. 42 Hence, they were
wrongfully impleaded in this case. 43
Our Ruling
The Petition is meritorious. DICcTa
The right to privacy is the right to be let
alone.
The right to privacy is enshrined in our Constitution 44 and in our laws. It is
defined as "the right to be free from unwarranted exploitation of one's person or
from intrusion into one's private activities in such a way as to cause humiliation to a
person's ordinary sensibilities." 45 It is the right of an individual "to be free from
unwarranted publicity, or to live without unwarranted interference by the public in
matters in which the public is not necessarily concerned." 46Simply put, the right to
privacy is "the right to be let alone." 47
The Bill of Rights guarantees the people's right to privacy and protects them
against the State's abuse of power. In this regard, the State recognizes the right of
the people to be secure in their houses. No one, not even the State, except "in case
of overriding social need and then only under the stringent procedural safeguards,"
can disturb them in the privacy of their homes. 48
102 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
The right to privacy under Article 26 (1)
of the Civil Code covers business offices
where the public are excluded
therefrom and only certain individuals
are allowed to enter.
Article 26 (1) of the Civil Code, on the other hand, protects an individual's
right to privacy and provides a legal remedy against abuses that may be committed
against him by other individuals. It states:  to privacy.
Art. 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;
xxx xxx xxx
This provision recognizes that a man's house is his castle, where his right to
privacy cannot be denied or even restricted by others. It includes "any act of
intrusion into, peeping or peering inquisitively into the residence of another without
the consent of the latter." 49 The phrase "prying into the privacy of another's
residence," however, does not mean that only the residence is entitled to privacy.
As elucidated by Civil law expert Arturo M. Tolentino:
Our Code specifically mentions "prying into the privacy of
another's residence." This does not mean, however, that only the
residence is entitled to privacy, because the law covers also
"similar acts." A business office is entitled to the same privacy
when the public is excluded therefrom and only such individuals
as are allowed to enter may come in. . . . 50 (Emphasis
supplied) cASIED
Thus, an individual's right to privacy under Article 26 (1) of the Civil Code should
not be confined to his house or residence as it may extend to places where he
has the right to exclude the public or deny them access. The phrase "prying into
the privacy of another's residence," therefore, covers places, locations, or even
situations which an individual considers as private. And as long as his right is
recognized by society, other individuals may not infringe on his right to privacy.
The CA, therefore, erred in limiting the application of Article 26 (1) of the Civil
Code only to residences.
The "reasonable expectation of
privacy" test is used to determine
whether there is a violation of the right
In ascertaining whether there is a violation of the right to privacy, courts use
the "reasonable expectation of privacy" test. This test determines whether a person
has a reasonable expectation of privacy and whether the expectation has been
violated. 51 In Ople v. Torres, 52 we enunciated that "the reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this
expectation is one that society recognizes as reasonable." Customs, community
norms, and practices may, therefore, limit or extend an individual's "reasonable
expectation of privacy." 53 Hence, the reasonableness of a person's expectation of
privacy must be determined on a case-to-case basis since it depends on the factual
circumstances surrounding the case. 54
In this day and age, video surveillance cameras are installed practically
everywhere for the protection and safety of everyone. The installation of these
cameras, however, should not cover places where there is reasonable expectation
of privacy, unless the consent of the individual, whose right to privacy would be
affected, was obtained. Nor should these cameras be used to pry into the privacy of
another's residence or business office as it would be no different from
eavesdropping, which is a crime under Republic Act No. 4200 or the Anti-
Wiretapping Law. 
In this case, the RTC, in granting the application for Preliminary Injunction,
ruled that:
After careful consideration, there is basis to grant the
application for a temporary restraining order. The operation by
[respondents] of a revolving camera, even if it were mounted on
their building, violated the right of privacy of [petitioners], who are
103 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
the owners of the adjacent lot. The camera does not only focus
on [respondents'] property or the roof of the factory at the back
(Aldo Development and Resources, Inc.) but it actually spans
through a good portion of [the] land of [petitioners].
Based on the ocular inspection, the Court understands
why [petitioner] Hing was so unyielding in asserting that the
revolving camera was set up deliberately to monitor the
on[-]going construction in his property. The monitor showed only
a portion of the roof of the factory of [Aldo]. If the purpose of
[respondents] in setting up a camera at the back is to secure the
building and factory premises, then the camera should revolve
only towards their properties at the back. [Respondents'] camera
cannot be made to extend the view to [petitioners'] lot. To allow
the [respondents] to do that over the objection of the [petitioners]
would violate the right of [petitioners] as property owners. "The
owner of a thing cannot make use thereof in such a manner as to
injure the rights of a third person." 55
The RTC, thus, considered that petitioners have a "reasonable expectation
of privacy" in their property, whether they use it as a business office or as a
residence and that the installation of video surveillance cameras directly facing
petitioners' property or covering a significant portion thereof, without their consent, is
a clear violation of their right to privacy. As we see then, the issuance of a
preliminary injunction was justified. We need not belabor that the issuance of a
preliminary injunction is discretionary on the part of the court taking cognizance of
the case and should not be interfered with, unless there is grave abuse of discretion
committed by the court. 56 Here, there is no indication of any grave abuse of
discretion. Hence, the CA erred in finding that petitioners are not entitled to an
injunctive writ. DaAETS
This brings us to the next question: whether respondents are the proper
parties to this suit.
A real party defendant is one who has a
correlative legal obligation to redress a
wrong done to the plaintiff by reason of
the defendant's act or omission which
had violated the legal right of the
former.
Section 2, Rule 3 of the Rules of Court provides:
SEC. 2. Parties-in-interest. — A real party-in-interest is
the party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party-in-interest.
A real party defendant is "one who has a correlative legal obligation to
redress a wrong done to the plaintiff by reason of the defendant's act or omission
which had violated the legal right of the former." 57
In ruling that respondents are not the proper parties, the CA reasoned that
since they do not own the building, they could not have installed the video
surveillance cameras. 58 Such reasoning, however, is erroneous. The fact that
respondents are not the registered owners of the building does not automatically
mean that they did not cause the installation of the video surveillance cameras. 
In their Complaint, petitioners claimed that respondents installed the video
surveillance cameras in order to fish for evidence, which could be used against
petitioners in another case. 59 During the hearing of the application for Preliminary
Injunction, petitioner Bill testified that when respondents installed the video
surveillance cameras, he immediately broached his concerns but they did not seem
to care, 60 and thus, he reported the matter to the barangay  for mediation, and
eventually, filed a Complaint against respondents before the RTC. 61 He also
admitted that as early as 1998 there has already been a dispute between his family
and the Choachuy family concerning the boundaries of their respective
properties. 62 With these factual circumstances in mind, we believe that
respondents are the proper parties to be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct
from its stockholders, records show that it is a family-owned corporation managed
by the Choachuy family. 63
104 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Also quite telling is the fact that respondents, notwithstanding their claim
that they are not owners of the building, allowed the court to enter the compound of
Aldo and conduct an ocular inspection. The counsel for respondents even toured
Judge Marilyn Lagura-Yap inside the building and answered all her questions
regarding the set-up and installation of the video surveillance cameras. 64 And
when respondents moved for reconsideration of the Order dated October 18, 2005
of the RTC, one of the arguments they raised is that Aldo would suffer damages if
the video surveillance cameras are removed and transferred. 65 Noticeably, in
these instances, the personalities of respondents and Aldo seem to merge. acAESC
All these taken together lead us to the inevitable conclusion that
respondents are merely using the corporate fiction of Aldo as a shield to protect
themselves from this suit. In view of the foregoing, we find that respondents are the
proper parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July
10, 2007 and the Resolution dated September 11, 2007 of the Court of Appeals in
CA-G.R. CEB-SP No. 01473 are hereby REVERSED and SET ASIDE. The Orders
dated October 18, 2005 and February 6, 200[6] of Branch 28 of the Regional Trial
Court of Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.
SO ORDERED.
||| (Spouses Hing v. Choachuy, Sr., G.R. No. 179736, [June 26, 2013], 712 PHIL
337-354)
SECOND DIVISION
[G.R. No. 127246. April 21, 1999.]
SPOUSES LUIS M. ERMITAÑO and MANUELITA C.
ERMITAÑO, petitioners, vs.  THE COURT OF APPEALS AND
BPI EXPRESS CARD CORP., respondents.
Ermitaño Sangco Manzano & Associates  for petitioners.
Lopez Law Office for respondents.
SYNOPSIS
Petitioner, Luis Ermitaño, was a credit card holder from private respondent
BPI Express Card Corp. (BECC) with his wife, Manuelita, as extension cardholder.
On August 29, 1989, Manuelita lost her BECC supplemental card. That same night,
she informed BECC of the loss via telephone. This was followed by a letter dated
August 30, 1989 stating that she shall not be responsible for any and all charges
incurred through the use of the lost card after August 29, 1989. However, when Luis
received his monthly billing, the charges included amounts for purchases made on
August 30, 1989 amounting to P3,197.70 through Manuelita's lost card. The
spouses refused to pay. Notwithstanding this, however, BECC continued to include
in the spouses' billing statements those purchases made through Manuelita's lost
card. They protested the billing letter. However, BECC pointed out to Luis the
stipulation in the contract that in the event the card is lost or stolen the cardholder
continues to be liable for the purchases made through the use of the lost card until
after the BECC has communicated such loss to its member
establishments. aTSEcA
The Court ruled that the resolution of the petition hinged on the validity and
fairness of the stipulation in the contract being invoked by private respondent in
case of loss or theft of a BECC issued credit card. It ruled that the stipulation which
still requires the cardholder to wait until the credit card company has notified all its
member-establishments, puts the cardholder at the mercy of the credit card
company which may delay indefinitely the notification of its members to minimize it
not to eliminate the possibility of incurring any loss from unauthorized purchases.
Or, as in this case, the credit card company may for some reason fail to promptly
notify its member through absolutely no fault of the cardholder. To require the
cardholder to still pay for unauthorized purchases after he has given prompt notice
of the loss or theft of his card to the credit card company would simply be unfair and
unjust. The Court held that such stipulation clearly runs against public policy.
105 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
SYLLABUS
1. CIVIL LAW; CONTRACTS; CONTRACTS OF ADHESION; BINDING AS
ORDINARY CONTRACTS. — At the outset, we note that the contract between the
parties in this case is indeed a contract of adhesion, so-called because its terms are
prepared by only one party while the other party merely affixes his signature
signifying his adhesion thereto. Such contracts are not void in themselves. They are
as binding as ordinary contracts. Parties who enter into such contracts are free to
reject the stipulations entirely. This Court, however, will not hesitate to rule out blind
adherence to such contracts if they prove to be too one-sided under the attendant
facts and circumstances. TcHEaI
2. ID.; ID.; ID.; QUESTIONED STIPULATION IN CASE AT BAR CLEARLY
RUNS AGAINST PUBLIC POLICY. — Because of the peculiar nature of contracts of
adhesion, the validity thereof must be determined in light of the circumstances under
which the stipulation is intended to apply. Prompt notice by the cardholder to the
credit card company of the loss or theft of his card should be enough to relieve the
former of any liability occasioned by the unauthorized use of his lost or stolen card.
The questioned stipulation in this case, which still requires the cardholder to wait
until the credit card company has notified all its member-establishments, puts the
cardholder at the mercy of the credit card company which may delay indefinitely the
notification of its members to minimize if not to eliminate the possibility of incurring
any loss from unauthorized purchases. Or, as in this case, the credit card company
may for some reason fail to promptly notify its members through absolutely no fault
of the cardholder. To require the cardholder to still pay for unauthorized purchases
after he has given prompt notice of the loss or theft of his card to the credit card
company would simply be unfair and unjust. The Court cannot give its assent to
such a stipulation which could clearly run against public policy.
3. ID.; DAMAGES; CASE AT BAR. — On the matter of the damages
petitioners are seeking, we must delete the award of exemplary damages, absent
any clear showing that BECC acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner, as required by Article 2232 of the Civil Code. We likewise
reduce the amount of moral damages to P50,000.00, considering the circumstances
of the parties to the case. DaAETS
DECISION
QUISUMBING, J  p:
This petition for review under Rule 45, of the Rules of Court, seeks to set
aside the decision of the Court of Appeals in C.A.-G.R. CV No. 47888 reversing the
trial court's 1 judgment in Civil Case No. 61357, as well as the resolution of the
Court of Appeals denying petitioners' motion for reconsideration. Cdpr
In dispute is the validity of the stipulation embodied in the standard
application form for credit cards furnished by private respondent. The stipulation
makes the cardholder liable for purchases made through his lost or stolen credit
card until (a) notice of such loss or theft has been given to private respondent and
(b) the latter has communicated such loss or theft to its member-establishments.
The facts, as found by the trial court, are not disputed.
Petitioner Luis Ermitaño applied for a credit card from private respondent
BPI Express Card Corp. (BECC) on October 8, 1986 with his wife, Manuelita, as
extension cardholder. The spouses were given credit cards with a credit limit of
P10,000.00. They often exceeded this credit limit without protest from BECC.
On August 29, 1989, Manuelita's bag was snatched from her as she was
shopping at the Greenbelt Mall in Makati, Metro Manila. Among the items inside the
bag was her BECC credit card. That same night she informed, by telephone, BECC
of the loss. The call was received by BECC offices through a certain Gina Banzon.
This was followed by a letter dated August 30, 1989. She also surrendered Luis'
credit card and requested for replacement cards. In her letter, Manuelita stated that
she "shall not be responsible for any and all charges incurred [through the use of
the lost card] after August 29, 1989." 2
However, when Luis received his monthly billing statement from BECC
dated September 20, 1989, the charges included amounts for purchases made on
August 30, 1989 through Manuelita's lost card. Two purchases were made, one
amounting to P2,350.05 and the other, P607.50. Manuelita received a billing
statement dated October 20, 1989 which required her to immediately pay the total
106 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
amount of P3,197.70 covering the same (unauthorized) purchases. Manuelita again
wrote BECC disclaiming responsibility for those charges, which were made after she
had served BECC with notice of the loss of her card.
Despite the spouses' refusal to pay and the fact that they repeatedly
exceeded their monthly credit limit, BECC sent them a notice dated December 29,
1989 stating that their cards had been renewed until March 1991. Notwithstanding
this, however, BECC continued to include in the spouses' billing statements those
purchases made through Manuelita's lost card. Luis protested this billing in his letter
dated June 20, 1990.
However, BECC, in a letter dated July 13, 1990, pointed out to Luis the
following stipulation in their contract:
"In the event the card is lost or stolen, the cardholder
agrees to immediately report its loss or theft in writing to BECC . .
. purchases made/incurred arising from the use of the lost/stolen
card shall be for the exclusive account of the cardholder and the
cardholder continues to be liable for the purchases made through
the use of the lost/stolen BPI Express Card until after such notice
has been given to BECC and the latter has communicated such
loss/theft to its member establishments." 3
Pursuant to this stipulation, BECC held Luis liable for the amount of
P3,197.70 incurred through the use of his wife's lost card, exclusive of interest and
penalty charges.
In his reply dated July 18, 1990, Luis stressed that the contract BECC was
referring to was a contract of adhesion and warned that if BECC insisted on
charging him and his wife for the unauthorized purchases, they will sue BECC for
damages. This warning notwithstanding, BECC continued to bill the spouses for
said purchases. 4
On April 10, 1991, Luis used his credit card to purchase gasoline at a
Caltex station. The latter, however, dishonored his card. In reply to Luis' demand for
an explanation, BECC wrote that it transferred the balance of his old credit card to
his new one, including the unauthorized charges. Consequently, his outstanding
balance exceeded his credit limit of P10,000.00. He was informed that his credit
card had not been cancelled but, since he exceeded his credit limit, he could not
avail of his credit privileges.
Once more, Luis pointed out that notice of the lost card was given to BECC
before the purchases were made.
Subsequently, BECC cancelled the spouses' credit cards and advised them
to settle the account immediately or risk being sued for collection of said account.
Constrained, petitioners sued BECC for damages. The trial court ruled in
their favor, stating that there was a waiver on the part of BECC in enforcing the
spouses' liability, as indicated by the following circumstances:
(1) Its failure to inform the spouses that the unauthorized charges
on the lost card would be carried over to their
replacement cards; and 
(2) Its act of unqualifiedly replacing the lost card and Luis' card
which were both surrendered by the spouses, even after
the spouses unequivocally denied liability for the
unauthorized purchases.
The trial court further noted that the suspension of the spouses' credit cards
was based upon the "lame excuse" that the credit limit had been exceeded, despite
the fact that BECC allowed the spouses previously to exceed their credit limit, even
for almost two years after the loss of Manuelita's card. Moreover, the credit limit was
exceeded only after BECC added the unauthorized purchases to the liability of the
spouses. BECC continued to send the spouses separate billing statements that
included the unauthorized purchases, with interest and penalty charges. 
The trial court opined that the only purpose for the suspension of the
spouses' credit privileges was to compel them to pay for the unauthorized
purchases. The trial court ruled that the latter portion of the condition in the parties'
contract, which states that liability for purchases made after a card is lost or stolen
shall be for the account of the cardholder until after notice of the loss or theft has
been given to BECC and after the latter has informed its member establishments, is
void for being contrary to public policy and for being dependent upon the sole will of
the debtor. 5
107 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Moreover, the trial court observed that the contract between BECC and the
Ermitaños was a contract of adhesion, whose terms must be construed strictly
against BECC, the party that prepared it.
The dispositive portion of the trial court's decision reads:
"WHEREFORE, and IN VIEW OF THE ALL THE
FOREGOING CONSIDERATIONS, judgment is hereby rendered
in favor of the plaintiffs, Spouses Luis M. Ermitaño and Manuelita
C. Ermitaño and against defendant BPI Express Card
Corporation:
1. Ordering the said defendant to pay the plaintiffs the
sum of P100,000.00 as moral damages.
2. Ordering said defendant to pay the plaintiffs the sum of
P50,000.00 as exemplary damages.
3. Ordering said defendant to pay the plaintiffs the sum
equivalent to twenty per cent (20%) of the amounts
abovementioned as and for attorney's fees and expenses of
litigation; and  subsequent acts after having been notified of the loss/theft of the
4. Ordering the said defendant to pay the costs of suit.
SO ORDERED."
But, on appeal this decision was reversed. The Court of Appeals stated that
the spouses should be bound by the contract, even though it was one of adhesion. It
also said that Luis, being a lawyer, had "all the tools to drive a hard bargain had he
wanted to." 6 It cited the case of Serra v. Court of Appeals  7 wherein this Court
ruled that contracts of adhesion are as binding as ordinary contracts. The petitioner
in Serra was a CPA-lawyer, "a highly educated man . . . who should have been
more cautious in (his) transactions. . ." 8 The Court of Appeals therefore disposed of
the appeal as follows:
"THE FOREGOING CONSIDERED, the contested
decision is REVERSED. Plaintiffs/appellees are hereby directed
to pay the defendant/appellant the amount of P3,197.70 with 3%
interest per month and an additional 3% penalty equivalent to the
amount due every month until full payment. Without cost. LLphil
SO ORDERED." 9
Hence, this recourse by petitioners, in which they claim that the Court of
Appeals gravely erred in:
(i) Ruling that petitioners should be bound by the
stipulations contained in the credit card application — a
document wholly prepared by private respondent itself — taking
into consideration the professional credentials of petitioner Luis
M. Ermitaño;
(ii) Relying on the case of Serra v. Court of Appeals, 229
SCRA 60, because unlike that case, petitioners have no chance
at all to contest the stipulations appearing in the credit card
application that was drafted entirely by private respondent, thus,
a clear contract of adhesion;
(iii) Ruling that private respondent is not estopped by its
credit card issued to petitioners; and
(iv) Holding that the onerous
and unconscionable condition in the credit card application that
the cardholder continues to be liable for purchases made on lost
or stolen credit cards not only after such notice has been given to
appellant but also after the latter has communicated such
loss/theft to its member establishments without any specific time
or period — is valid. 10
At the outset, we note that the contract between the parties in this case is
indeed a contract of adhesion, so-called because its terms are prepared by only one
party while the other party merely affixes his signature signifying his adhesion
thereto. 11 Such contracts are not void in themselves. 12 They are as binding as
ordinary contracts. Parties who enter into such contracts are free to reject the
stipulations entirely. This Court, however, will not hesitate to rule out blind
108 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
adherence to such contracts if they prove to be too one-sided under the attendant
facts and circumstances. 13
The resolution of this petition, in our view, hinges on the validity and
fairness of the stipulation on notice required by private respondent in case of loss or
theft of a BECC-issued credit card. Because of the peculiar nature of contracts of
adhesion, the validity thereof must be determined in light of the circumstances under
which the stipulation is intended to apply. 14
The stipulation in question reads:
"In the event the card is lost or stolen, the cardholder
agrees to immediately report its loss or theft in writing to BECC . .
. purchases made/incurred arising from the use of the lost/stolen
card shall be for the exclusive account of the cardholder and the
cardholder continues to be liable for the purchases made through
the use of the lost/stolen BPI Express Card until after such notice
has been given to BECC and the latter has communicated such
loss/theft to its member establishments."
For the cardholder to be absolved from liability for unauthorized purchases
made through his lost or stolen card, two steps must be followed: (1) the cardholder
must give written notice to BECC, and (2) BECC must notify its member
establishments of such loss or theft, which, naturally, it may only do upon receipt of
a notice from the cardholder. Both the cardholder and BECC, then, have a
responsibility to perform, in order to free the cardholder from any liability arising from
the use of a lost or stolen card.
In this case, the cardholder, Manuelita, has complied with what was
required of her under the contract with BECC. She immediately notified BECC of the
loss of her card on the same day it was lost and, the following day, she sent a
written notice of the loss to BECC. That she gave such notices to BECC is admitted
by BECC in the letter sent to Luis by Roberto L. Maniquiz, head of BECC's
Collection Department. 15
Having thus performed her part of the notification procedure, it was
reasonable for Manuelita — and Luis, for that matter — to expect that BECC would
perform its part of the procedure, which is to forthwith notify its member-
establishments. It is not unreasonable to assume that BECC would do this
immediately, precisely to avoid any unauthorized charges. 
Clearly, what happened in this case was that BECC failed to notify promptly
the establishment in which the unauthorized purchases were made with the use of
Manuelita's lost card. Thus, Manuelita was being liable for those purchases, even if
there is no showing that Manuelita herself had signed for said purchases, and after
notice by her concerning her card's loss was already given to BECC.
BECC asserts that the period that elapsed from the time of the loss of the
card to the time of its unauthorized use was too short such that "it would be next to
impossible for respondent to notify all its member-establishments regarding the fact
of the loss." 16 Nothing, however, prevents said member-establishments from
observing verification procedures including ascertaining the genuine signature and
proper identification of the purported purchaser using the credit card.
BECC states that, "between two persons who are negligent, the one who
made the wrong possible should bear the loss." We take this to be an admission
that negligence had occurred. In effect, BECC is saying that the company, and the
member-establishments or the petitioners could be negligent. However, according to
BECC, petitioners should be the ones to bear the loss since it was they who made
possible the commission of a wrong. This conclusion, however, is self-serving and
obviously untenable.
From one perspective, it was not petitioners who made possible the
commission of the wrong. It could be BECC for its failure to immediately notify its
member-establishments, who appear lacking in care or instruction by BECC in
proper procedures, regarding signatures and the identification of card users at the
point of actual purchase of goods or services. For how else could an unauthorized
person succeed to use Manuelita's lost card?
The cardholder was no longer in control of the procedure after it has notified
BECC of the card's loss or theft. It was already BECC's responsibility to inform its
member-establishments of the loss or theft of the card at the soonest possible time.
We note that BECC is not a neophyte financial institution, unaware of the intricacies
and risks of providing credit privileges to a large number of people. It should have
anticipated an occurrence such as the one in this case and devised effective ways
and means to prevent it, or otherwise insure itself against such risk. 
109 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
Prompt notice by the cardholder to the credit card company of the loss or
theft of his card should be enough to relieve the former of any liability occasioned by
the unauthorized use of his lost or stolen card. The questioned stipulation in this
case, which still requires the cardholder to wait until the credit card company has
notified all its member-establishments, puts the cardholder at the mercy of the credit
card company which may delay indefinitely the notification of its members to
minimize if not to eliminate the possibility of incurring any loss from unauthorized
purchases. Or, as in this case, the credit card company may for some reason fail to
promptly notify its members through absolutely no fault of the cardholder. To require
the cardholder to still pay for unauthorized purchases after he has given prompt
notice of the loss or theft of his card to the credit card company would simply be
unfair and unjust. The Court cannot give its assent to such a stipulation which could
clearly run against public policy. 17
On the matter of the damages petitioners are seeking, we must delete the
award of exemplary damages, absent any clear showing that BECC acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner, as required
byArticle 2232 of the Civil Code. We likewise reduce the amount of moral damages
to P50,000.00, considering the circumstances of the parties to the case.
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No.
47888 is hereby REVERSED and the decision of the Regional Trial Court, Branch
157, Pasig City in Civil Case No. 61375 is REINSTATED, with the MODIFICATION
that the award of exemplary damages in the amount of P50,000.00 is hereby
deleted; and the amount of moral damages is reduced to P50,000.00; but private
respondent is further ordered to pay P25,000 as attorney's fees and litigation
expenses.
Costs against private respondents. cda
SO ORDERED.
||| (Spouses Ermitaño v. Court of Appeals, G.R. No. 127246, [April 21, 1999], 365
PHIL 671-682)
FIRST DIVISION
[G.R. No. 129792. December 21, 1999.]
JARCO MARKETING CORPORATION, LEONARDO KONG,
JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE
COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA
R. AGUILAR, respondents.
Estrella & Virtudazo Law Firm  for petitioners.
Florante A. Bautista for private respondents.
SYNOPSIS
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department
Store, Makati City (Syvel's), while the private respondents are spouses and the
parents of Zhieneth Aguilar. While Criselda and her child Zhieneth were at the 2nd
floor of Syvel's, a terrible accident happened, which caused the life of the six-year
old Zhieneth. She was pinned by the bulk of the store's gift-wrapping counter
structure which collapsed. Fourteen days later, Zhieneth died at the hospital, which
was attributed to the injuries she sustained. Private respondents filed a complaint for
damages wherein they sought the payment of P157,522.86 for actual damages,
P300,000.00 for moral damages, P20,000.00 for attorney's fees and an unspecified
amount for loss income and exemplary damages. Petitioners, however, denied any
liability for the injuries and consequent death of Zhieneth. They sought the dismissal
of the complaint and an award of moral and exemplary damages and attorney's fees
in their favor. The trial court dismissed the complaint, finding that the preponderance
of the evidence favored petitioners. The Court of Appeals decided in favor of private
respondents and reversed the appealed judgment. It found that petitioners were
negligent in maintaining a structurally dangerous counter. It also declared Zhieneth,
who was below seven at the time, was absolutely incapable of negligence or other
tort. The appellate court then awarded private respondents P99,420.86 as actual
damages, representing hospitalization expenses. It denied the award for funeral
110 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
expenses for lack of proof. Instead, compensatory damages were awarded for the
death of Zhieneth. Petitioners sought the reversal of the Court of Appeals' decision
and the reinstatement of the judgment of the trial court. EHTSCD
The Supreme Court ruled that the tragedy which befell Zhieneth was no
accident and her death could only be attributed to negligence. The physical analysis
of the counter by both the trial court and the Court of Appeals and a scrutiny of the
evidence on record revealed that it was not durable. Criselda should be absolved
from any contributory negligence. The petition was denied and the decision of the
Court of Appeals was affirmed.
SYLLABUS
1. CIVIL LAW; DAMAGES. ACCIDENT AND NEGLIGENCE;
DISTINGUISHED. — An accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. It is "a fortuitous circumstance, event or
happening; an event happening without any human agency, or if happening wholly
or partly through human agency, an event which under the circumstances is unusual
or unexpected by the person to whom it happens." On the other hand, negligence is
the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man would not do.
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."
2. ID.; ID.; ID.; TEST TO DETERMINE NEGLIGENCE. — The test in
determining the existence of negligence is enunciated in the landmark case
of Picart v. Smith, (37 Phil. 809 [1918]) thus: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is guilty of
negligence.
3. REMEDIAL LAW; EVIDENCE; TESTIMONY; EXCEPTION TO
HEARSAY RULE; PART OF RES GESTAE, DEFINED. — The testimony of witness
Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as)
part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:  Part
of res gestae. Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae. It is axiomatic that matters
relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions.
4. ID.; ID.; ID.; ID.; REQUIREMENTS FOR ADMISSIBILITY; PRESENT IN
CASE AT BAR. — All that is required for their admissibility as part of the res
gestae is that they be made or uttered under the influence of a startling event before
the declarant had the time to think and concoct a falsehood as witnessed by the
person who testified in court. Under the circumstances, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor
whom she trusted with her life. We accord credence to Gonzales' testimony on the
matter, i.e., ZHIENETH performed no act that facilitated her tragic death.
5. ID.; ID.; ID.; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL
COURT GENERALLY NOT DISTURBED ON APPEAL; EXCEPTIONS; NOT
PRESENT IN CASE AT BAR. — It is settled that when the issue concerns the
credibility of witnesses, the appellate courts will not as a general rule disturb the
findings of the trial court, which is in a better position to determine the same. The
trial court has the distinct advantage of actually hearing the testimony of and
observing the deportment of the witnesses. However, the rule admits of exceptions
such as when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could affect
the result of the case. In the instant case, petitioners failed to bring their claim within
the exception.
6. ID.; ID.; PRESUMPTION; CHILDREN BELOW NINE YEARS OLD,
CONCLUSIVELY PRESUMED TO BE INCAPABLE OF CONTRIBUTORY
NEGLIGENCE; CASE AT BAR. — Anent the negligence imputed to ZHIENETH, we
apply the conclusive presumption that favors children below nine (9) years old
incapable of contributory negligence. In his book, ( I Philippine Law on Torts and
Damages, 70-71 [1993]), former Judge Cezar S. Sangco stated: In our jurisdiction, a
person under nine years of age is conclusively presumed to have acted without
111 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
discernment, and is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in a case of a person
over nine and under fifteen years of age, unless it is shown that he has acted with
discernment. Since negligence may be a felony and a quasi-delict and required
discernment as a condition of liability, either criminal or civil, a child under nine
years of age is, by analogy, conclusively presumed to be incapable of negligence;
and that the presumption of lack of discernment or incapacity for negligence in the
case of a child over nine but under fifteen years of age is a rebuttable one, under
our law. The rule, therefore, is that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a matter of
law. SDIACc
DECISION
DAVIDE, JR., C.J  p:
In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of Appeals
in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of
the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorney's fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar. cdasia
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department
Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the
store's branch manager, operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd
floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit
card slip at the payment and verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-
wrapping counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the people around
in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she
was operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate 5 issued by ZHIENETH's attending doctor described
the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt
injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L)
lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and wake and
funeral expenses 6 which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages, docketed as Civil
Case No. 7119 wherein they sought the payment of P157,522.86 for actual
damages, P300,000 for moral damages, P20,000 for attorney's fees and an
unspecified amount for loss of income and exemplary damages.
112 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
In their answer with counterclaim, petitioners denied any liability for the
injuries and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to freely
roam around in a store filled with glassware and appliances. ZHIENETH too, was
guilty of contributory negligence since she climbed the counter, triggering its
eventual collapse on her. Petitioners also emphasized that the counter was made of
sturdy wood with a strong support; it never fell nor collapsed for the past fifteen
years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection, supervision and
control of its employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that the complaint was
malicious for which they suffered besmirched reputation and mental anguish. They
sought the dismissal of the complaint and an award of moral and exemplary
damages and attorney's fees in their favor. Cdpr
In its decision 7 the trial court dismissed the complaint and counterclaim
after finding that the preponderance of the evidence favored petitioners. It ruled that
the proximate cause of the fall of the counter on ZHIENETH was her act of clinging
to it. It believed petitioners' witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure falling on top of
her, pinning her stomach. In contrast, none of private respondents' witnesses
testified on how the counter fell. The trial court also held that CRISELDA's
negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the
counter was situated at the end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance. 8 The counter
was higher than ZHIENETH. It has been in existence for fifteen years. Its structure
was safe and well-balanced. ZHIENETH, therefore, had no business climbing on
and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial
court its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH;
(3) petitioners were not negligent in the maintenance of the counter; and (4)
petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to
the conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to have
propped herself on the counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she was. Also, the
testimony of one of the store's former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the
Makati Medical Center belied petitioners' theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she
did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter
just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's spontaneous
declaration should not only be considered as part of res gestae but also accorded
credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment that she was
signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause
of ZHIENETH's death, was petitioners' negligence in failing to institute measures to
have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that ZHIENETH's
death while unfortunate and tragic, was an accident for which neither CRISELDA
nor even ZHIENETH could entirely be held faultless and blameless. Further,
petitioners adverted to the trial court's rejection of Gonzales' testimony as unworthy
of credence.
As to private respondent's claim that the counter should have been nailed to
the ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately placed at
a corner to avoid such accidents. Truth to tell, they acted without fault or negligence
for they had exercised due diligence on the matter. In fact, the criminal case 10 for
113 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
homicide through simple negligence filed by private respondents against the
individual petitioners was dismissed; a verdict of acquittal was rendered in their
favor.
The Court of Appeals, however, decided in favor of private respondents and
reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted "L" 11 with a top wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor supported by its narrow base.
Thus, the counter was defective, unstable and dangerous; a downward pressure on
the overhanging portion or a push from the front could cause the counter to fall. Two
former employees of petitioners had already previously brought to the attention of
the management the danger the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners for this omission, and
concluded that the incident that befell ZHIENETH could have been avoided had
petitioners repaired the defective counter. It was inconsequential that the counter
had been in use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7)
years old at the time of the incident, was absolutely incapable of negligence or other
tort. It reasoned that since a child under nine (9) years could not be held liable even
for an intentional wrong, then the six-year old ZHIENETH could not be made to
account for a mere mischief or reckless act. It also absolved CRISELDA of any
negligence, finding nothing wrong or out of the ordinary in momentarily allowing
ZHIENETH to walk while she signed the document at the nearby counter. LLjur
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then awarded
P99,420.86 as actual damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced by the hospital's statement
of account. 12 It denied an award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory damage of P50,000 was awarded
for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the
lower court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27
April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same
was denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the
trial court. They stress that since the action was based on tort, any finding of
negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDA's contributory negligence,
through her failure to provide the proper care and attention to her child while inside
the store, nullified private respondents' claim for damages. It is also for these
reasons that parents are made accountable for the damage or injury inflicted on
others by their minor children. Under these circumstances, petitioners could not be
held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already
separated from Syvel's at the time he testified; hence, his testimony might have
been tarnished by ill-feelings against them.
114 | T O R T S F u l l T e x t C a s e s 8 1 t o 1 0 0
For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the store;
the findings and conclusions of the Court of Appeals are substantiated by the
evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on
the incident while she was in the hospital's emergency room should receive
credence; and finally, ZHIENETH's part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her" should be considered as the
correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening;
an event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent and
reasonable man would not do. 17 Negligence is "the failure to observe, for the
protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person
suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist
with the other. Accident occurs when the person concerned is exercising ordinary
care, which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the
landmark case of Picart v. Smith, 20 thus: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is guilty of
negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETH's death could only be attributable to negligence. LLjur
We quote the testimony of Gerardo Gonzales who was at the scene of the
incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice
anything while the child was being treated?
A At the emergency room we were all surrounding the child. And
when the doctor asked the child "what did you do," the
child said "nothing, I did not come near the counter and
the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
 You want the words in Tagalog to be translated?
ATTY. BELTRAN
 Yes, your Honor.
COURT
 Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed
(and should be admitted as) part of the res gestae  under Section 42, Rule 130 of
the Rules of Court, thus:
Part of res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the issue,
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and giving it a legal significance, may be received as part of A I informed Mr. Maat about that counter which is  [sic] shaky and
the res gestae. since Mr. Maat is fond of putting display decorations on
tables, he even told me that I would put some
It is axiomatic that matters relating to declarations of pain or suffering and
decorations. But since I told him that it not  [sic]nailed
statements made to a physician are generally considered declarations and
and it is shaky he told me "better inform also the
admissions. 23 All that is required for their admissibility as part of the res gestae is
company about it." And since the company did not do
that they be made or uttered under the influence of a startling event before the
anything about the counter, so I also did not do anything
declarant had the time to think and concoct a falsehood as witnessed by the person
about the counter. 24 [Emphasis supplied]
who testified in court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor Ramon Guevarra, another former employee, corroborated the testimony of
whom she trusted with her life. We therefore accord credence to Gonzales' Gonzales, thus:
testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic
Q Will you please described [sic] to the Honorable Court the
death. Sadly, petitioners did, through their negligence or omission to secure or make
counter where you were assigned in January 1983?
stable the counter's base.
xxx xxx xxx
Gonzales' earlier testimony on petitioners' insistence to keep and maintain
the structurally unstable gift-wrapping counter proved their negligence, thus: A That counter assigned to me was when my supervisor ordered
me to carry that counter to another place. I told him that
Q When you assumed the position as gift wrapper at the second
the counter needs nailing and it has to be nailed because
floor, will you please describe the gift wrapping counter,
were you able to examine?
it might cause injury or accident to another since it was
shaky. LibLex
A Because every morning before I start working I used to clean
Q When that gift wrapping counter was transferred at the second
that counter and since it is not nailed and it was only
floor on February 12, 1983, will you please describe that
standing on the floor, it was shaky .
to the honorable Court?
xxx xxx xxx
A I told her that the counter wrapper  [sic] is really in
Q Will you please describe the counter at 5:00 o'clock [ sic] in the good  [sic] condition; it was shaky. I told her that we had
afternoon on [sic] May 9, 1983? to nail it.
A At that hour on May 9, 1983, that counter was standing beside Q When you said she, to whom are you referring to [ sic]?
the verification counter. And since the top of it was heavy
A I am referring to Ms. Panelo, sir.
and considering that it was not nailed, it can collapsed at
anytime, since the top is heavy. Q And what was the answer of Ms. Panelo when you told her that
the counter was shaky?
xxx xxx xxx
Q And what did you do?
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A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me? And she even got
angry at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did
Ms. Panelo or any employee of the management do to
that [sic]
xxx xxx xxx
Witness:
 None, sir. They never nailed the counter. They only nailed the
counter after the accident happened . 25[Emphasis
supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet, neither
initiated any concrete action to remedy the situation nor ensure the safety of the
store's employees and patrons as a reasonable and ordinary prudent man would
have done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed
to establish that the former's testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarra's testimonies were blemished
by "ill feelings" against petitioners — since they (Gonzales and Guevarra) were
already separated from the Company at the time their testimonies were offered in
court — was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court, which
is in a better position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing the deportment of the
witnesses. 26 However, the rule admits of exceptions such as when its evaluation
was reached arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of the
case. 27 In the instant case, petitioners failed to bring their claim within the
exception.
Anent the negligence ZHIENETH, we apply the conclusive presumption that
favors children below nine (9) years old in that they are incapable of contributory
negligence. In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and is,
on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in
a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and required
discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in
the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law .
[Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that
she climbed over the counter, no injury should have occurred if we accept
petitioners' theory that the counter was stable and sturdy. For if that was the truth, a
frail six-year old could not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court of Appeals and a scrutiny of
the evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped
like an inverted "L," the counter was heavy, huge, and its top laden with formica. It
protruded towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence.
Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's
hand. 31 CRISELDA momentarily released the child's hand from her clutch when
she signed her credit card slip. At this precise moment, it was reasonable and usual
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for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned
down by the counter, she was just a foot away from her mother; and the gift-
wrapping counter was just four meters away from CRISELDA. 32 The time and
distance were both significant. ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even admitted to the doctor who
treated her at the hospital that she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED
and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R.
No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED. LibLex
||| (Jarco Marketing Corp. v. Court of Appeals, G.R. No. 129792, [December 21,
1999], 378 PHIL 991-1008)