SABINA EXCONDE, 
plaintiff-appellant, The father, and, in case of his death or incapacity, the mother, are liable for any damages
vs.
DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.
Magno T. Bueser for appellant.
Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees.
BAUTISTA ANGELO, J.:
Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless
imprudence for the death of Isidoro Caperina and Amado Ticzon on March 31, 1949 in the
Court of First Instance of Laguna (Criminal Case No. 15001). During the trial, Sabina
Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a separate
civil action for damages against the accused. After trial, Dante Capuno was found guilty of the
crime charged and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was
only (15) years old when he committed the crime.
In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno
and his son Dante Capuno asking for damages in the aggregate amount of P2,959.00 for the
death of her son Isidoro Caperiña. Defendants set up the defense that if any one should be
held liable for the death of Isidoro Caperina, he is Dante Capuno and not his father Delfin
because at the time of the accident, the former was not under the control, supervision and
custody, of the latter. This defense was sustained by the lower court and, as a consequence it
only convicted Dante Capuno to pay the damages claimed in the complaint. From decision,
plaintiff appealed to the Court of Appeals but the case was certified to us on the ground that
the appeal only involves questions of law.
It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of
the Bilintawak Elementary School situated in a barrio in the City of San Pablo and on March
31, 1949 he attended a parade in honor of Dr. Jose Rizal in said city upon instruction of the
city school's supervisor. From the school Dante, with other students, boarded a jeep and
when the same started to run, he took hold of the wheel and drove it while the driver sat on
his left side. They have not gone far when the jeep turned turtle and two of its passengers,
Amado Ticzon and Isidore Caperiña, died as a consequence. It further appears that Delfin
Capuno, father of Dante, was not with his son at the time of the accident, nor did he know that
his son was going to attend a parade. He only came to know it when his son told him after the
accident that he attended the parade upon instruction of his teacher.
The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly
liable, jointly and severally with his son Dante, for damages resulting from the death of Isidoro
Caperiña caused by the negligent act of minor Dante Capuno.
The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which
provides:
ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for
personal acts and omissions, but also for those of persons for whom another is responsible.
caused by the minor children who live with them.
xxx     xxx     xxx
Finally, teachers or directors of arts and trades are liable for any damages caused by their
pupils or apprentices while they are under their custody.
Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly
and severally with his son Dante because at the time the latter committed the negligent act
which resulted in the death of the victim, he was a minor and was then living with his father,
and inasmuch as these facts are not disputed, the civil liability of the father is evident. And so,
plaintiff contends, the lower court erred in relieving the father from liability.
We find merit in this claim. It is true that under the law above quoted, "teachers or directors of
arts and trades are liable for any damages caused by their pupils or apprentices while they
are under their custody", but this provision only applies to an institution of arts and trades and
not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p. 841; See
12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak
Elementary School and as part of his extra-curricular activity, he attended the parade in honor
of Dr. Jose Rizal upon instruction of the city school's supervisor. And it was in connection with
that parade that Dante boarded a jeep with some companions and while driving it, the
accident occurred. In the circumstances, it is clear that neither the head of that school, nor the
city school's supervisor, could be held liable for the negligent act of Dante because he was
not then a student of an institute of arts and trades as provided by law.
The civil liability which the law impose upon the father, and, in case of his death or incapacity,
the mother, for any damages that may be caused by the minor children who live with them, is
obvious. This is necessary consequence of the parental authority they exercise over them
which imposes upon the parents the "duty of supporting them, keeping them in their company,
educating them and instructing them in proportion to their means", while, on the other hand,
gives them the "right to correct and punish them in moderation" (Articles 154 and 155,
Spanish Civil Code). The only way by which they can relieve themselves of this liability is if
they prove that they exercised all the diligence of a good father of a family to prevent the
damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.
WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin
Capuno and Dante Capuno shall pay to plaintiff, jointly and severally, the sum of P2,959.00
as damages, and the costs of action.
Bengzon, Montemayor, Labrador and Endencia, JJ., concur.
Paras, C.J., concurs in the result.
FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and ROBERTO R. LUNA,
JR., petitioners,
vs.
THE HON. INTERMEDIATE APPELLATE COURT, JOSE E. DELA ROSA and
LUIS DELA ROSA, respondents.
Ezequiel S. Consulta for petitioners.
David M. Castro for respondents.
ABAD SANTOS, J.:
This is a petition to review a decision of the defunct Court of Appeals. The
petitioners are the heirs of Roberto R. Luna who was killed in a vehicular collision.
The collision took place on January 18, 1970, at the go-kart practice area in
Greenhills, San Juan, Metro Manila. Those involved were the go-kart driven by the
deceased, a business executive, and a Toyota car driven by Luis dela Rosa, a minor
of 13 years who had no driver's license.
In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela
Rosa and his father Jose dela Rosa, the Court of First Instance of Manila in Civil
Case No. 81078, rendered the following judgment:
WHEREFORE, judgment is hereby rendered sentencing the defendants Luis dela
Rosa and Jose dela Rosa to pay, jointly and severally, to the plaintiffs the sum of
P1,650,000.00 as unearned net earnings of Roberto Luna, P12,000.00 as
compensatory damages, and P50,000.00 for the loss of his companionship, with
legal interest from the date of this decision; plus attorney's fees in the sum of
P50,000.00, and the costs of suit. (Record on Appeal, p. 35.)
The defendants appealed to the defunct Court of Appeals which in a decision dated
May 22, 1979, affirmed  in toto that of the trial court. (Rollo, p. 48.) However, upon a
motion for reconsideration filed by the defendants-appellants, the Court of Appeals,
in a resolution dated June 19, 1981, modified its judgment thus:
WHEREFORE, the decision rendered in this case is hereby modified insofar as the
judgment ordering the defendants to pay, jointly and severally, the sum of P
1,650,000.00 to plaintiffs with legal interest from July 5, 1973, is concerned. In lieu
thereof, defendants are hereby ordered to pay plaintiffs, jointly and severally, the
sum of Four Hundred Fifty Thousand Pesos (P450,000.00) as unearned net
earnings of Roberto R. Luna, with legal interest thereon from the date of the filing of
the complaint until the whole amount shall have been totally paid.
The rest of the other dispositions in the judgment a quo stand. (Rollo, pp. 33-34.)
Both parties filed separate petitions for review of the appellate court's decision.
In G.R. No. 57362, the petition for review of Jose and Luis dela Rosa was denied for
lack of merit on October 5, 1981. Subsequently, they informed that the decision
sought to be reviewed was not yet final because the Lunas had a pending motion for
reconsideration. For prematurity, this Court set aside all previous resolutions. On
February 16, 1983, acting upon the motion and manifestation of the petitioners, they
were required to file an amended petition within thirty days from notice. On June 20,
1983, this Court resolved: "For failure of the petitioners to file an amended petition
as required, this case is hereby DISMISSED and the dismissal is final."
The instant case — G.R. No. 62988 — is the separate appeal of the Lunas. Their
petition contains the following prayer:
1. That the petition be given due course;
2. That after notice and hearing, judgment be rendered, setting aside or modifying
the RESOLUTION of respondent Court of Appeals dated June 19, 1981, attached as
Annex "A" to the petition, only insofar as it reduced the unearned net earnings to
P450,000.00, s as to affirm the trial court's finding as to the unearned net earnings
of the deceased in the amount of P1,650,000.00;
3. Ordering that the award of attorney's fees shall also be with interest, at the legal
rate. (Rollo, p. 27.)
On June 27, 1983, the petition was given due course. (Rollo, pp. 122-123.)
In the light of the foregoing, the resolution stated:
It thus appears that the questions in  esse are with respect to the award for
unearned net earnings — should the award be P450,000.00 only or should it be
P1,650,000.00 as originally adjudged; and whether the award for attorney's fees
shall also be with interest at the legal rate.
The Court takes notice that the wrongful death occurred as early as January 18,
1970, and that until now the process of litigation is not yet over. In the meantime the
value of the Philippine peso has been seriously eroded so that the heirs of the
deceased may ultimately have a greatly depreciated judgment. In the interest of
justice, the private respondents are hereby ordered to PAY to the petitioners within
thirty (30) days from notice the following amounts adjudged against them:
P450,000.00 for unearned net earnings of the deceased; (P12,000.00 as
compensatory damages; P50,000.00 for the loss of his companionship with legal
interest from July 3, 1973; and P50,000.00 as attorney's fees.
Still to be resolved shall be the following: whether the award for unearned net
earnings shall be increased to P1,650,000.00; and whether the award for attorney's
fees shall also be with interest at the legal rate. The costs will be adjudged as a
matter of course. (Rollo, p. 123.)
The private respondents failed to pay the amounts and when required to explain
they said that they had no cash money. Accordingly, this Court directed the trial
court to issue a writ of execution but the attempt of the special sheriff to enter the
private respondent's premises so that he could make an inventory of personal
properties was thwarted by guards and this Court had to direct the Chief of the
Philippine Constabulary to assist in enforcing the writ of execution. The execution
yielded only a nominal amount. In the meantime, Luis dela Rosa is now of age,
married with two children, and living in Madrid, Spain with an uncle but only casually
employed. It is said: "His compensation is hardly enough to support his family. He
has no assets of his own as yet." (Rollo, p. 208.)
1. On the amount of the award.
The award of P1,650,000.00 was based on two factors, namely: (a) that the
deceased Roberto R. Luna could have lived for 30 more years; and (b) that his
annual net income was P55,000.00, computed at P75,000.00 annual gross income
less P20,000.00 annual personal expenses.
This is what the trial court said on Luna's life expectancy:
According to the American Experience Table of Mortality, at age 33 the life
expectancy of Roberto Luna was 33.4 years, and under the Commissioner Standard
Ordinary, used by our domestic insurance companies since 1968 for policies above
P5,000.00 his life expectancy was 38.51 years. Dr. Vicente Campa, medical director
of San Miguel Corporation, testified that he was the regular physician of Roberto
Luna since his marriage to Felina Rodriguez in 1957. He said that except for a slight
anemia which he had ten years earlier, Roberto Luna was of good health. Allowing
for this condition, he could reasonably expect to have a life expectancy of 30 years.
(Record on Appeal, p. 33.)
The Court of Appeals in sustaining the trial court's conclusion said:
We have not been persuaded to disturb the conclusion that the deceased had a life
expectancy of thirty years. At the time of Luna's death, he was only thirty-three years
old and in the best of health. With his almost perfect physical condition and his
sound mind, the expectation that he could have lived for another thirty years is
reasonable, considering that with his educational attainment, his social and financial
standing, he had the means of staying fit and preserving his health and well-being.
That he could have lived at least until the age of sixty-three years is an assessment
which is more on the conservative side in view of the testimony of Dr. Vicente
Campa that the general life expectancy nowadays had gone up to seventy years.
(Rollo, p. 45.)
The Court of Appeals likewise sustained the trial court in respect of Luna's annual
income and expense. This is what the trial court said:
Roberto Luna was 33 years old when he died, and was survived by his wife Felina
Rodriguez-Luna, and two children, Roberto Jr., 13 years, and Jose, 12 years. His
wife was 35 years old at the time. He declared a gross income of P16,900.00 for
1967 (Exhibit I), P29,700,000 for 1968 (Exhibit H) and P45,117.69 for 1969 (Exhibit
G). He had investments in various corporations amounting to P136,116.00 (Exhibits
K, M, M-1, N, N-1 to N-3, O, O-1, P, Q and R) and was the president and general
manager of Rodlum Inc.; general manager of Esso Greenhills Service Center;
Assistant manager of Jose Rodriguez Lanuza Sons; director of Steadfast Investment
Corporation; chairman and treasurer of Greenhills Industrial Corporation; vice-
president of Oasis, Inc.; director of Nation Savings Association; director of Arlun
Taxi; and treasurer of National Association of Retired Civil Employees.
... . His income tax returns show an increase in his income in the short period of
three years. It is reasonable to expect that it would still go higher for the next fifteen
years and reach a minimum of P75,000.00 a year. The potential increase in the
earning capacity of a deceased person is recognized by the Supreme Court. ... the
court believes that the expected gross earnings of Roberto Luna should be fixed in
the sum of P75,000.00 a year for the period of his life expectancy of 30 years, but
deducting his personal expenses which, because of his business and social
standing the court in the amount of P20,000.00 a year, in accordance with the
rulings of the Supreme Court. (Record on Appeal, pp. 32-34.)
Acting on a motion for reconsideration filed by the dela Rosas, the Court of Appeals
took into account the fact "that the deceased Roberto R. Luna had been engaged in
car racing as a sport, having participated in tournaments both here and abroad;" it
said that Luna's habit and manner of life should be "one of the factors affecting the
value of mortality table in actions for damages;" and, consequently, concluded that
Luna could not have lived beyond 43 years. The result was that the 30-year life
expectancy of Luna was reduced to 10 years only.
Further on the motion for reconsideration, the Court of Appeals ruled in respect of
Luna's annual personal expenses:
... . Considering the escalating price of automobile gas which is a key expenditure in
Roberto R. Luna's social standing, We should increase that amount to P30,000.00
as the would be personal expenses of the deceased per annum. (Rollo, p. 33.)
The petitioners now pray that the award of attorney's fees be with interest at the
legal rate from the date of the filing of the complaint. There is merit in this prayer.
The attorney's fees were awarded in the concept of damages in a quasi-delict case
and under the circumstances interest as part thereof may be adjudicated at the
discretion of the court. (See Art. 2211, Civil Code.) As with the other damages
awarded, the interest should accrue only from the date of the trial court's decision.

The Court of Appeals then determined the amount of the award thus: P75,000.00 The private respondents invoke Elcano vs. Hill, L-24803, May 26,1977; 77 SCRA
annual gross income less P30,000.00 annual personal expenses leaves P45,000.00 98, where it was held that Article 2180 of the Civil Code applied to Atty. Marvin Hill
multiplied by 10 years of life expectancy and the product is P450,000.00. notwithstanding the emancipation by marriage of Reginald Hill, his son but since
Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become
merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now
The petitioners contend that the Court of Appeals erred when by its resolution of
married and of legal age and that as a matter of equity the liability of his father
June 19, 1981, it reduced Luna's life expectancy from 30 to 10 Years and increased
should be subsidiary only.
his annual personal expenses from P20,000.00 to P30,000.00. We sustain the
petitioners.
We are unwilling to apply equity instead of strict law in this case because to do so
will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of
The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said
Philippine courts. Moreover, he does not have any property either in the Philippines
that his habit and manner of life should be taken into account, i.e. that he had been
or elsewhere. In fact his earnings are insufficient to support his family.
engaged in car racing as a sport both here and abroad - a dangerous and risky
activity tending to shorten his life expectancy. That Luna had engaged in car racing
is not based on any evidence on record. That Luna was engaged in go-kart racing is WHEREFORE, the resolution of the Court of Appeals dated June 19, 1981, is
the correct statement but then go-kart racing cannot be categorized as a dangerous hereby set aside; its decision dated May 22, 1979, is reinstated with the sole
sport for go-karts are extremely low slung, low powered vehicles, only slightly larger modification that the award for attorney's fees shall earn interest at the legal rate
than foot-pedalled four wheeled conveyances. It was error on the part of the Court of from July 5, 1973, the date of the trial court's decision. Costs against the private
Appeals to have disturbed the determination of the trial court which it had previously respondents.
affirmed.
SO ORDERED.
Similarly, it was error for the Court of Appeals to reduce the net annual income of
the deceased by increasing his annual personal expenses but without at the same
time increasing his annual gross income. It stands to reason that if his annual
personal expenses should increase because of the "escalating price of gas which is
a key expenditure in Roberto R. Luna's social standing" [a statement which lacks
complete basis], it would not be unreasonable to suppose that his income would
also increase considering the manifold sources thereof.

In short, the Court of Appeals erred in modifying its original decision.

2. Attorney's fees — with or without interest at the legal rate.

The trial court awarded attorney's fees to the petitioners in the sum of P50,000.00.
This award was affirmed by the Court of Appeals in its decision of May 22, 1979.
The resolution of June 19, 1981, reaffirmed the award. The two decisions as well as
the resolution do not provide for interest at the legal rate to be tacked to the award.

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE
APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.
Alex Y. Tan, for Petitioners.
Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.
SYLLABUS
1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY
ARISING FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINOR
CHILDREN; RULE. — The parents are and should be held primarily liable for the
civil liability arising from criminal offenses committed by their minor children under
their legal authority or control, or who live in their company, unless it is proven that
the former acted with the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of Article 101 of the
Revised Penal Code with respect to damages ex delicto caused by their children 9
years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who
acted with discernment, or 15 years or over but under 21 years of age, such primary
liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said
Article 2180, the enforcement of such liability shall be effected against the father
and, in case of his death or incapacity, the mother. This was amplified by the Child
and Youth Welfare Code which provides that the same shall devolve upon the father
and, in case of his death or incapacity, upon the mother or, in case of her death or
incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. However, under the Family Code,
this civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. For civil
liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
DECISION
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow is sometimes a
touchstone of love. A tragic illustration is provided by the instant case, wherein two
lovers died while still in the prime of their years, a bitter episode for those whose
lives they have touched. While we cannot expect to award complete assuagement to
their families through seemingly prosaic legal verbiage, this disposition should at
least terminate the acrimony and rancor of an extended judicial contest resulting
from the unfortunate occurrence.
In this final denouement of the judicial recourse the stages whereof were alternately
initiated by the parties, petitioners are now before us seeking the reversal of the
judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.
69060 with the following decretal portion:jgc:chanrobles.com.ph
"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is
hereby reversed; and instead, judgment is hereby rendered sentencing defendants,
jointly and solidarily, to pay to plaintiffs the following amounts:chanrobles.com :
virtual law library
1. Moral damages, P30,000.000;
2. Exemplary damages, P10,000.00;
3. Attorney’s fees, P20,000.00, and costs.
However, denial of defendants-appellees’ counterclaims is affirmed." 1
Synthesized from the findings of the lower courts, it appears that respondent
spouses are the legitimate parents of Julie Ann Gotiong who, at the time of the
deplorable incident which took place and from which she died on January 14, 1979,
was an 18-year old first year commerce student of the University of San Carlos,
Cebu City; while petitioners are the parents of Wendell Libi, then a minor between
18 and 19 years of age living with his aforesaid parents, and who also died in the
same event on the same date.
For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi
were sweethearts until December, 1978 when Julie Ann broke up her relationship
with Wendell after she supposedly found him to be sadistic and irresponsible. During
the first and second weeks of January, 1979, Wendell kept pestering Julie Ann with
demands for reconciliation but the latter persisted in her refusal, prompting the
former to resort to threats against her. In order to avoid him, Julie Ann stayed in the
house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana
Osmeña Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot
wound inflicted with the same firearm, a Smith and Wesson revolver licensed in the
name of petitioner Cresencio Libi, which was recovered from the scene of the crime
inside the residence of private respondents at the corner of General Maxilom and D.
Jakosalem streets of the same city.
Due to the absence of an eyewitness account of the circumstances surrounding the
death of both minors, their parents, who are the contending parties herein, posited
their respective theories drawn from their interpretation of circumstantial evidence,
available reports, documents and evidence of physical facts.
Private respondents, bereaved over the death of their daughter, submitted that
Wendell caused her death by shooting her with the aforesaid firearm and, thereafter,
turning the gun on himself to commit suicide. On the other hand, Petitioners, puzzled
and likewise distressed over the death of their son, rejected the imputation and
contended that an unknown third party, whom Wendell may have displeased or
antagonized by reason of his work as a narcotics informer of the Constabulary Anti-
Narcotics Unit (CANU), must have caused Wendell’s death and then shot Julie Ann
to eliminate any witness and thereby avoid identification.chanrobles.com:cralaw:red
As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in
the then Court of First Instance of Cebu against the parents of Wendell to recover
damages arising from the latter’s vicarious liability under Article 2180 of the Civil
Code. After trial, the court below rendered judgment on October 20, 1980 as
follows:jgc:chanrobles.com.ph
"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing
plaintiffs’ complaint for insufficiency of the evidence. Defendants’ counterclaim is
likewise denied for lack of sufficient merit." 2
On appeal to respondent court, said judgment of the lower court dismissing the
complaint of therein plaintiffs-appellants was set aside and another judgment was
rendered against defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in this case:chanrob1es
virtual 1aw library
1. Whether or not respondent court correctly reversed the trial court in accordance
with established decisional laws; and
2. Whether or not Article 2180 of the Civil Code was correctly interpreted by
respondent court to make petitioners liable for vicarious liability. 3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal
Officer of Cebu, submitted his findings and opinions on some postulates for
determining whether or not the gunshot wound was inflicted on Wendell Libi by his
own suicidal act. However, undue emphasis was placed by the lower court on the
absence of gunpowder or tattooing around the wound at the point of entry of the
bullet. It should be emphasized, however, that this is not the only circumstance to be
taken into account in the determination of whether it was suicide or not.
It is true that said witness declared that he found no evidence of contact or close-
contact of an explosive discharge in the entrance wound. However, as pointed out
by private respondents, the body of deceased Wendell Libi must have been washed
at the funeral parlor, considering the hasty interment thereof a little after eight (8)
hours from the occurrence wherein he died. Dr. Cerna himself could not
categorically state that the body of Wendell Libi was left untouched at the funeral
parlor before he was able to conduct his autopsy. It will also be noted that Dr. Cerna
was negligent in not conducting a paraffin test on Wendell Libi, hence possible
evidence of gunpowder residue on Wendell’s hands was forever lost when Wendell
was hastily buried.cralawnad
More specifically, Dr. Cerna testified that he conducted an autopsy on the body of
Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours
and twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the
autopsy table and in the stage of rigor mortis; and that said body was not washed,
but it was dried. 4 However, on redirect examination, he admitted that during the 8-
hour interval, he never saw the body nor did he see whether said body was wiped or
washed in the area of the wound on the head which he examined because the
deceased was inside the morgue. 5 In fact, on cross-examination, he had earlier
admitted that as far as the entrance of the wound, the trajectory of the bullet and the
exit of the wound are concerned, it is possible that Wendell Libi shot himself. 6
He further testified that the muzzle of the gun was not pressed on the head of the
victim and that he found no burning or singeing of the hair or extensive laceration on
the gunshot wound of entrance which are general characteristics of contact or near-
contact fire. On direct examination, Dr. Cerna nonetheless made these
clarification:jgc:chanrobles.com.ph
"Q Is it not a fact that there are certain guns which are so made that there would be
no black residue or tattooing that could result from these guns because they are
what we call clean?
A Yes, sir. I know that there are what we call smokeless powder.
ATTY. ORTIZ:chanrob1es virtual 1aw library
Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those
indications that you said may not rule out the possibility that the gun was closer than
24 inches, is that correct?
A If the . . . assuming that the gun used was .. the bullet used was a smokeless
powder.
Q At any rate, doctor, from . . . disregarding those other matters that you have
noticed, the singeing, etc., from the trajectory, based on the trajectory of the bullet
as shown in your own sketch, is it not a fact that the gun could have been fired by
the person himself, the victim himself, Wendell Libi, because it shows a point of
entry a little above the right ear and point of exit a little above that, to be very fair
and on your oath?
A As far as the point of entrance is concerned and as far as the trajectory of the
bullet is concerned and as far as the angle or the manner of fire is concerned, it
could have been fired by the victim." 7
As shown by the evidence, there were only two used bullets 8 found at the scene of
the crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell
Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the
National Bureau of Investigation, 9 shows that there is only one gunshot wound of
entrance located at the right temple of Wendell Libi. The necropsy report prepared
by Dr. Cerna states:chanrob1es virtual 1aw library
x       x       x
"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest
inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal
region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus,
directed slightly forward, upward and to the left, involving skin and soft tissues,
making a punch-in fracture on the temporal bone, right, penetrating cranial cavity,
lacerating extensively along its course the brain tissues, fracturing parietal bone, left,
and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted,
parietal region, left, 2.0 cms. behind and 12.9 cms. above left external auditory
meatus.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
x       x       x
"Evidence of contact or close-contact fire, such as burning around the gunshot
wound of entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive
laceration or bursting of the gunshot wound of entrance, or separation of the skin
from the underlying tissue, are absent." 10
On cross-examination, Dr. Cerna demonstrated his theory which was made of
record, thus:jgc:chanrobles.com.ph
"Q Now, will you please use yourself as Wendell Libi, and following the entrance of
the wound, the trajectory of the bullet and the exit of the wound, and measuring
yourself 24 inches, will you please indicate to the Honorable Court how would it
have been possible for Wendell Libi to kill himself? Will you please indicate the 24
inches?
WITNESS:chanrob1es virtual 1aw library
A Actually, sir, the 24 inches is approximately one arm’s length.
ATTY. SENINING:chanrob1es virtual 1aw library
I would like to make of record that the witness has demonstrated by extending his
right arm almost straight towards his head." 11
Private respondents assail the fact that the trial court gave credence to the
testimonies of defendants’ witnesses Lydia Ang and James Enrique Tan, the first
being a resident of an apartment across the street from the Gotiongs and the
second, a resident of the house adjacent to the Gotiong residence, who declared
having seen a "shadow" of a person at the gate of the Gotiong house after hearing
shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where she was staying
faces the gas station; that it is the second apartment; that from her window she can
see directly the gate of the Gotiongs and, that there is a firewall between her
apartment and the gas station. 12 After seeing a man jump from the gate of the
Gotiongs to the rooftop of the Tans, she called the police station but the telephone
lines were busy. Later on, she talked with James Enrique Tan and told him that she
saw a man leap from the gate towards his rooftop. 13
However, James Enrique Tan testified that he saw a "shadow" on top of the gate of
the Gotiongs, but denied having talked with anyone regarding what he saw. He
explained that he lives in a duplex house with a garden in front of it; that his house is
next to Felipe Gotiong’s house; and he further gave the following answers to these
questions:chanrobles.com : virtual law library
"ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiong’s in relation to your house?
WITNESS:chanrob1es virtual 1aw library
A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:chanrob1es virtual 1aw library
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From Your living room window, is that correct?
WITNESS:chanrob1es virtual 1aw library
A Yes, but not very clear because the wall is high." 14
Analyzing the foregoing testimonies, we agree with respondent court that the same
do not inspire credence as to the reliability and accuracy of the witnesses’
observations, since the visual perceptions of both were obstructed by high walls in
their respective houses in relation to the house of herein private respondents. On
the other hand, witness Manolo Alfonso, testifying on rebuttal, attested without
contradiction that he and his sister, Malou Alfonso, were waiting for Julie Ann
Gotiong when they heard her scream; that when Manolo climbed the fence to see
what was going on inside the Gotiong house, he heard the first shot; and, not more
than five (5) seconds later, he heard another shot. Consequently, he went down
from the fence and drove to the police station to report the incident. 15 Manolo’s
direct and candid testimony establishes and explains the fact that it was he whom
Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the
Gotiong house.
We have perforce to reject petitioners’ effete and unsubstantiated pretension that it
was another man who shot Wendell and Julie Ann. It is significant that the Libi family
did not even point to or present any suspect in the crime nor did they file any case
against any alleged "John Doe." Nor can we sustain the trial court’s dubious theory
that Wendell Libi did not die by his own hand because of the overwhelming evidence
— testimonial, documentary and pictorial — the confluence of which point to
Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of
his persistent pleas for a reconciliation.chanrobles.com:cralaw:red
Petitioners’ defense that they had exercised the due diligence of a good father of a
family, hence they should not be civilly liable for the crime committed by their minor
son, is not borne out by the evidence on record either.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio
Libi, owns a gun which he kept in a safety deposit box inside a drawer in their
bedroom. Each of these petitioners holds a key to the safety deposit box and
Amelita’s key is always in her bag, all of which facts were known to Wendell. They
have never seen their son Wendell taking or using the gun. She admitted, however,
that on that fateful night the gun was no longer in the safety deposit box. 16 We,
accordingly, cannot but entertain serious doubts that petitioner spouses had really
been exercising the diligence of a good father of a family by safely locking the fatal
gun away. Wendell could not have gotten hold thereof unless one of the keys to the
safety deposit box was negligently left lying around or he had free access to the bag
of his mother where the other key was.
The diligence of a good father of a family required by law in a parent and child
relationship consists, to a large extent, of the instruction and supervision of the child.
Petitioners were gravely remiss in their duties as parents in not diligently supervising
the activities of their son, despite his minority and immaturity, so much so that it was
only at the time of Wendell’s death that they allegedly discovered that he was a
CANU agent and that Cresencio’s gun was missing from the safety deposit box.
Both parents were sadly wanting in their duty and responsibility in monitoring and
knowing the activities of their children who, for all they know, may be engaged in
dangerous work such as being drug informers, 17 or even drug users. Neither was a
plausible explanation given for the photograph of Wendell, with a handwritten
dedication to Julie Ann at the back thereof, 18 holding upright what clearly appears
as a revolver and on how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding petitioners civilly liable,
as explained at the start of this opinion, respondent court waved aside the
protestations of diligence on the part of petitioners and had this to
say:jgc:chanrobles.com.ph
". . . It is still the duty of parents to know the activity of their children who may be
engaged in this dangerous activity involving the menace of drugs. Had the
defendants-appellees been diligent in supervising the activities of their son, Wendell,
and in keeping said gun from his reach, they could have prevented Wendell from
killing Julie Ann Gotiong. Therefore, appellants are liable under Article 2180 of the
Civil Code which provides:chanrob1es virtual 1aw library
‘The father, and in case of his death or incapacity, the mother, are responsible for
the damages caused by their minor children who live in their company.’
"Having been grossly negligent in preventing Wendell Libi from having access to
said gun which was allegedly kept in a safety deposit box, defendants-appellees are
subsidiarily liable for the natural consequence of the criminal act of said minor who
was living in their company. This vicarious liability of herein defendants-appellees
has been reiterated by the Supreme Court in many cases, prominent of which is the
case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which
held that:chanrob1es virtual 1aw library
‘The subsidiary liability of parents for damages caused by their minor children
imposed by Article 2180 of the New Civil Code covers obligations arising from both
quasi-delicts and criminal offenses.’
‘The subsidiary liability of parent’s arising from the criminal acts of their minor
children who acted with discernment is determined under the provisions of Article
2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold that
the former only covers obligations which arise from quasi-delicts and not obligations
which arise from criminal offenses, would result in the absurdity that while for an act
where mere negligence intervenes the father or mother may stand subsidiarily liable
for the damages caused by his or her son, no liability would attach if the damage is
caused with criminal intent.’ (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi
somehow got hold of the key to the drawer where said gun was kept under lock
without defendant-spouses ever knowing that said gun had been missing from that
safety box since 1978 when Wendell Libi had) a picture taken wherein he proudly
displayed said gun and dedicated this picture to his sweetheart, Julie Ann Gotiong;
also since then, Wendell Libi was said to have kept said gun in his car, in keeping up
with his supposed role of a CANU agent . . ." chanrobles lawlibrary : rednad
x       x       x
"Based on the foregoing discussions of the assigned errors, this Court holds that the
lower court was not correct in dismissing herein plaintiffs-appellants’ complaint
because as preponderantly shown by evidence, defendants-appellees utterly failed
to exercise all the diligence of a good father of the family in preventing their minor
son from committing this crime by means of the gun of defendants-appellees which
was freely accessible to Wendell Libi for they have not regularly checked whether
said gun was still under lock, but learned that it was missing from the safety deposit
box only after the crime had been committed." (Emphases ours.) 19
We agree with the conclusion of respondent court that petitioners should be held
liable for the civil liability based on what appears from all indications was a crime
committed by their minor son. We take this opportunity, however, to digress and
discuss its ratiocination therefor on jurisprudential dicta which we feel require
clarification.
In imposing sanctions for the so-called vicarious liability of petitioners, respondent
court cites Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he
subsidiary liability of parents for damages caused by their minor children imposed by
Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts
and criminal offenses," followed by an extended quotation ostensibly from the same
case explaining why under Article 2180 of the Civil Code and Article 101 of the
Revised Penal Code parents should assume subsidiary liability for damages caused
by their minor children. The quoted passages are set out two paragraphs back, with
pertinent underscoring for purposes of the discussion hereunder.chanrobles law
library
Now, we do not have any objection to the doctrinal rule holding, the parents liable,
but the categorization of their liability as being subsidiary, and not primary, in nature
requires a hard second look considering previous decisions of this court on the
matter which warrant comparative analyses. Our concern stems from our readings
that if the liability of the parents for crimes or quasi-delicts of their minor children is
subsidiary, then the parents can neither invoke nor be absolved of civil liability on
the defense that they acted with the diligence of a good father of a family to prevent
damages. On the other hand, if such liability imputed to the parents is considered
direct and primary, that diligence would constitute a valid and substantial defense.
We believe that the civil liability of parents for quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact,
if we apply Article 2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in this case the minor
and the father and, in case of his death of incapacity, the mother, are solidarily
liable. Accordingly, such parental liability is primary and not subsidiary, hence the
last paragraph of Article 2180 provides that" (t)he responsibility treated of in this
article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damages."cralaw virtua1aw
library
We are also persuaded that the liability of the parents for felonies committed by their
minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal
Code provides:jgc:chanrobles.com.ph
"ARTICLE 101. Rules regarding civil liability in certain cases. —
x       x       x
First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed by . . . a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those
having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part." (Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by their minor children
is likewise direct and primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of a good father of a
family.
That in both quasi-delicts and crimes the parents primarily respond for such
damages is buttressed by the corresponding provisions in both codes that the minor
transgressor shall be answerable or shall respond with his own property only in the
absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto
of minors, Article 2182 of the Civil Code states that" (i)f the minor causing damage
has no parents or guardian, the minor . . . shall be answerable with his own property
in an action against him where a guardian ad litem shall be appointed." For civil
liability ex delicto of minors, an equivalent provision is found in the third paragraph of
Article 101 of the Revised Penal Code, to wit:jgc:chanrobles.com.ph
"Should there be no person having such . . . minor under his authority, legal
guardianship or control, or if such person be insolvent, said . . . minor shall respond
with (his) own property, excepting property exempt from execution, in accordance
with civil law."cralaw virtua1aw library
The civil liability of parents for felonies committed by their minor children
contemplated in the aforesaid rule in Article 101 of the Revised Penal Code in
relation to Article 2180 of the Civil Code has, aside from the aforecited case of
Fuellas, been the subject of a number of cases adjudicated by this Court, viz.:
Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen, Et. Al. v. Balce, 24
Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26
Parenthetically, the aforesaid cases were basically on the issue of the civil liability of
parents for crimes committed by their minor children over 9 but under 15 years of
age, who acted with discernment, and also of minors 15 years of aye or over, since
these situations are not covered by Article 101, Revised Penal Code. In both
instances, this Court held that the issue of parental civil liability should be resolved in
accordance with the provisions of Article 2180 of the Civil Code for the reasons well
expressed in Salen and adopted in the cases hereinbefore enumerated that to hold
that the civil liability under Article 2180 would apply only to quasi-delicts and not to
criminal offenses would result in the absurdity that in an act involving mere
negligence the parents would be liable but not where the damage is caused with
criminal intent. In said cases, however, there are unfortunate variances resulting in a
regrettable inconsistency in the Court’s determination of whether the liability of the
parents, in cases involving either crimes or quasi-delicts of their minor children, is
primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through
reckless imprudence, in a separate civil action arising from the crime the minor and
his father were held jointly and severally liable for failure of the latter to prove the
diligence of a good father of a family. The same liability in solidum and, therefore,
primary liability was imposed in a separate civil action in Araneta on the parents and
their 14-year old son who was found guilty of frustrated homicide, but on the
authority of Article 2194 of the Civil Code providing for solidary responsibility of two
or more persons who are liable for a quasi-delict.
However, in Salen, the father was declared subsidiarily liable for damages arising
from the conviction of his son, who was over 15 but less than 18 years of age, by
applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In
the present case, as already explained, the petitioners herein were also held liable
but supposedly in line with Fuellas which purportedly declared the parents
subsidiarily liable for the civil liability for serious physical injuries committed by their
13-year old son. On the other hand, in Paleyan, the mother and her 19-year old son
were adjudged solidarily liable for damages arising from his conviction for homicide
by the application of Article 2180 of the Civil Code since this is likewise not covered
by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was
acquitted in a homicide charge due to "lack of intent, coupled with mistake," it was
ruled that while under Article 2180 of the Civil Code there should be solidary liability
for damages, since the son, "although married, was living with his father and getting
subsistence from him at the time of the occurrence," but "is now of age, as a matter
of equity" the father was only held subsidiarily liable.
It bears stressing, however, that the Revised Penal Code provides for subsidiary
liability only for persons causing damages under the compulsion of irresistible force
or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and
proprietors of establishments; 28 employers, teachers, persons and corporations
engaged in industry; 29 and principals, accomplices and accessories for the unpaid
civil liability of their co-accused in the other classes. 30
Also, coming back to respondent court’s reliance on Fuellas in its decision in the
present case, it is not exactly accurate to say that Fuellas provided for subsidiary
liability of the parents therein. A careful scrutiny shows that what respondent court
quoted verbatim in its decision now on appeal in the present case, and which it
attributed to Fuellas, was the syllabus on the law report of said case which spoke of
"subsidiary" liability. However, such categorization does not specifically appear in
the text of the decision in Fuellas. In fact, after reviewing therein the cases of
Exconde, Araneta and Salen and the discussions in said cases of Article 101 of the
Revised Penal Code in relation to Article 2180 of the Civil Code, this Court
concluded its decision in this wise:jgc:chanrobles.com.ph
"Moreover, the case at bar was decided by the Court of Appeals on the basis of
evidence submitted therein by both parties, independent of the criminal case. And
responsibility for fault or negligence under Article 2176 upon which the present
action was instituted, is entirely separate and distinct from the civil liability arising
from fault or negligence under the Penal Code (Art. 2177), and having in mind the
reasons behind the law as heretofore stated, any discussion as to the minor’s
criminal responsibility is of no moment."cralaw virtua1aw library
Under the foregoing considerations, therefore, we hereby rule that the parents are
and should be held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control, or who live in
their company, unless it is proven that the former acted with the diligence of a good
father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex
delicto caused by their children 9 years of age or under, or over 9 but under 15
years of age who acted without discernment; and, with regard to their children over 9
but under 15 years of age who acted with discernment, or 15 years or over but
under 21 years of age, such primary liability shall be imposed pursuant to Article
2180 of the Civil Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against
the father and, in case of his death or incapacity, the mother. This was amplified by
the Child and Youth Welfare Code which provides that the same shall devolve upon
the father and, in case of his death or incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the liability may also be voluntarily
assumed by a relative or family friend of the youthful offender. 32 However, under
the Family Code, this civil liability is now, without such alternative qualification, the
responsibility of the parents and those who exercise parental authority over the
minor offender. 33 For civil liability arising from quasi-delicts committed by minors,
the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil
Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused
by a felony or a quasi-delict committed by Wendell Libi, respondent court did not err
in holding petitioners liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on the bases of the legal
imperatives herein explained, we conjoin in its findings that said petitioners failed to
duly exercise the requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of

respondent Court of Appeals is hereby AFFIRMED, with costs against petitioners.

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,
vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20,
Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.
FELICIANO, J.:
On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer
Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a civil
complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos
Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's
adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural
parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural
parents with whom he was living at the time of the tragic incident. In addition to this case
for damages, a criminal information or Homicide through Reckless Imprudence was filed
[Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however, was
acquitted and exempted from criminal liability on the ground that he bad acted without
discernment.
Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura
had filed a petition to adopt the minor Adelberto Bundoc in Special Proceedings No.
0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption
was grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the
result of the foregoing petition for adoption, claimed that not they, but rather the adopting
parents, namely the spouses Sabas and Felisa Rapisura, were indispensable parties to
the action since parental authority had shifted to the adopting parents from the moment
the successful petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto Bundoc was then actually living
with his natural parents, parental authority had not ceased nor been relinquished by the
mere filing and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that
respondent natural parents of Adelberto indeed were not indispensable parties to the
action.
Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the
15-day reglementary period, or on 14 December 1987, petitioners filed a motion for
reconsideration followed by a supplemental motion for reconsideration on 15 January
1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of
Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all
parties concerned at least three (3) days before the hearing of said motion; and that said
notice shall state the time and place of hearing — both motions were denied by the trial
court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of
appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this
time ruling that the notice had been filed beyond the 15-day reglementary period ending
22 December 1987.
Petitioners went to the Court of Appeals on a petition
for mandamus  and  certiorari  questioning the trial court's Decision dated 3 December
1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals
dismissed the petition, ruling that petitioners had lost their right to appeal.
In the present Petition for Review, petitioners once again contend that respondent
spouses Bundoc are the indispensable parties to the action for damages caused by the
acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges on the
following issues: (1) whether or not petitioners, notwithstanding loss of their right to
appeal, may still file the instant Petition; conversely, whether the Court may still take
cognizance of the case even through petitioners' appeal had been filed out of time; and
(2) whether or not the effects of adoption, insofar as parental authority is concerned may
be given retroactive effect so as to make the adopting parents the indispensable parties
in a damage case filed against their adopted child, for acts committed by the latter, when
actual custody was yet lodged with the biological parents.
1. It will be recalled that, petitioners' motion (and supplemental motion) for
reconsideration filed before the trial court, not having complied with the requirements of
Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were
considered pro forma and hence did not interrupt and suspend the reglementary period
to appeal: the trial court held that the motions, not having contained a notice of time and
place of hearing, had become useless pieces of paper which did not interrupt the
reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the
service of the motion on the opposing counsel indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the instant. Petition, and in order
that substantial justice may be served, the Court, invoking its right to suspend the
application of technical rules to prevent manifest injustice, elects to treat the notice of
appeal as having been seasonably filed before the trial court, and the motion (and
supplemental motion) for reconsideration filed by petitioner in the trial court as having
interrupted the reglementary period for appeal. As the Court held in Gregorio v. Court of
Appeals: 3
Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the
courts is to encourage hearings of appeal on their merits. The rules of procedure ought
not be applied in a very rigid technical sense, rules of procedure are used only to help
secure not override, substantial justice. if d technical and rigid enforcement of the rules is
made their aim would be defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo
with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176
of the Civil Code provides:
Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict . . .
Upon the other hand, the law imposes civil liability upon the father and, in case of his
death or incapacity, the mother, for any damages that may be caused by a minor
child who lives with them. Article 2180 of the Civil Code reads:
The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the person herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
(Emphasis supplied)
This principle of parental liability is a species of what is frequently designated as
vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law,
where a person is not only liable for torts committed by himself, but also for torts
committed by others with whom he has a certain relationship and for whom he is
responsible. Thus, parental liability is made a natural or logical consequence of the
duties and responsibilities of parents — their parental authority — which includes the
instructing, controlling and disciplining of the child. 5 The basis for the doctrine of
vicarious liability was explained by the Court in  Cangco v. Manila Railroad Co. 6 in the
following terms:
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect — and our Legislature has so elected
— to limit such liability to cases in which the person upon whom such an obligation is
imposed is morally culpable or, on the contrary, for reasons of public policy. to extend
that liability, without regard to the lack of moral culpability, so as to include responsibility
for the negligence of those persons whose acts or omissions are imputable, by a legal
fiction,  to others who are in a position to exercise an absolute or limited control over
them. The legislature which adopted our Civil Code has elected to limit extra-contractual
liability — with certain well-defined exceptions — to cases in which moral culpability can
be directly imputed to the persons to be charged.  This moral responsibility may consist in
having failed to exercise due care in one's own acts, or in having failed to exercise due
care in the selection and control of one's agent or servants, or in the control of persons
who, by reasons of their status, occupy a position of dependency with respect to the
person made liable for their conduct.  7 (Emphasis Supplied)
The civil liability imposed upon parents for the torts of their minor children living with
them, may be seen to be based upon the parental authority vested by the Civil Code
upon such parents. The civil law assumes that when an unemancipated child living with
its parents commits a tortious acts, the parents were negligent in the performance of
their legal and natural duty closely to supervise the child who is in their custody and
control. Parental liability is, in other words, anchored upon parental authority coupled
with presumed parental dereliction in the discharge of the duties accompanying such
authority. The parental dereliction is, of course, only presumed and the presumption can
be overtuned under Article 2180 of the Civil Code by proof that the parents had
exercised all the diligence of a good father of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when
parental authority was still lodged in respondent Bundoc spouses, the natural parents of
the minor Adelberto. It would thus follow that the natural parents who had then actual
custody of the minor Adelberto, are the indispensable parties to the suit for damages.
The natural parents of Adelberto, however, stoutly maintain that because a decree of
adoption was issued by the adoption court in favor of the Rapisura spouses, parental
authority was vested in the latter as adopting parents as of the time of the filing of the
petition for adoption  that is,  before Adelberto had shot Jennifer which an air rifle. The
Bundoc spouses contend that they were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare
Code 8 which reads as follows:
Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social
Welfare or duly licensed child placement agency and the evidence submitted before it,
the court is satisfied that the petitioner is qualified to maintain, care for, and educate the
child, that the trial custody period has been completed, and that the best interests of the
child will be promoted by the adoption, a decree of adoption shall be entered, which
shall be effective he date the original petition was filed. The decree shall state the name
by which the child is thenceforth to be known. (Emphasis supplied)
The Bundoc spouses further argue that the above Article 36 should be read in relation to
Article 39 of the same Code:
Art. 39. Effect of Adoption. — The adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the natural parents, except where the adopter is the
spouse of the surviving natural parent;
xxx xxx xxx
(Emphasis supplied)
and urge that their Parental authority must be deemed to have been dissolved as of the
time the Petition for adoption was filed.
The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental
liability for the torts of a minor child is the relationship existing between the parents and
the minor child living with them and over whom, the law presumes, the parents exercise
supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this
rule:
Article 58 Torts — Parents and guardians are responsible for the damage caused by the
child under their parental authority in accordance with the civil Code.  (Emphasis
supplied)
Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the
requisite that the child, doer of the tortious act, shall have beer in the actual custody of
the parents sought to be held liable for the ensuing damage:
Art. 221. Parents and other persons exercising parental authority shall be civilly liable for
the injuries and damages caused by the acts or omissions of their unemancipated
children living in their company and under their parental authority subject to the
appropriate defenses provided by law. (Emphasis supplied)
We do not believe that parental authority is properly regarded as having been
retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do not consider that retroactive effect may
be giver to the decree of adoption so as to impose a liability upon the adopting parents
accruing at a time when adopting parents had no actual or physically custody over the
adopted child. Retroactive affect may perhaps be given to the granting of the petition for
adoption where such is essential to permit the accrual of some benefit or advantage in
favor of the adopted child. In the instant case, however, to hold that parental authority
had been retroactively lodged in the Rapisura spouses so as to burden them with liability
for a tortious act that they could not have foreseen and which they could not have
prevented (since they were at the time in the United States and had no physical custody
over the child Adelberto) would be unfair and unconscionable. Such a result, moreover,
would be inconsistent with the philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no presumption of parental dereliction on the part
of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was
not in fact subject to their control at the time the tort was committed.
Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above.
Article 35 provides as follows:
Art. 35. Trial Custody. — No petition for adoption shall be finally granted unless and until
the adopting parents are given by the courts a supervised trial custody period of at least
six months to assess their adjustment and emotional readiness for the legal
union. During the period of trial custody, parental authority shall be vested in the
adopting parents. (Emphasis supplied)
Under the above Article 35, parental authority is provisionally vested in the adopting
parents during the period of trial custody, i.e., before the issuance of a decree of
adoption, precisely because the adopting parents are given actual custody of the child
during such trial period. In the instant case, the trial custody period either had not yet
begun or bad already been completed at the time of the air rifle shooting; in any case,
actual custody of Adelberto was then with his natural parents, not the adopting parents.
Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents,
were indispensable parties to the suit for damages brought by petitioners, and that the
dismissal by the trial court of petitioners' complaint, the indispensable parties being
already before the court, constituted grave abuse of discretion amounting to lack or
excess of jurisdiction.
WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE
COURSE and the Decision of the Court of Appeals dated 6 September 1988, in C.A.-
G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed
before the trial court is hereby REINSTATED and this case is REMANDED to that court
for further proceedings consistent with this Decision. Costs against respondent Bundoc
spouses. This Decision is immediately executory.
SO ORDERED.
 In the civil suit subsequently instituted by the parents in behalf of their minor
daughter against Alfonso Monfort, Maria Teresa Monfort's father, the defendant
was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral
damages; and P2,000.00 as attorney's fees, plus the costs of the suit.

The legal issue posed in this appeal is the liability of a parent for an act of his
minor child which causes damage to another under the specific facts related
MARIA TERESA Y. CUADRA, minor represented by her father ULISES P.
above and the applicable provisions of the Civil Code, particularly Articles 2176
CUADRA, ET AL., plaintiffs-appellees,
and 2180 thereof, which read:
vs.
ALFONSO MONFORT, defendant-appellant.
ART. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
Rodolfo J. Herman for plaintiffs-appellees.
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by provisions of this Chapter.
Luis G. Torres and Abraham E. Tionko for defendant-appellant.
ART 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
MAKALINTAL, J.:
The father and, in case of his death or incapacity are responsible for the
This is an action for damages based on quasi-delict, decided by the Court of damages caused by the minor children who live in their company.
First Instance of Negros Occidental favorably to the plaintiffs and appealed by
the defendant to the Court of Appeals, which certified the same to us since the xxx xxx xxx
facts are not in issue.
The responsibility treated of in this Article shall cease when the persons herein
Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in mentioned prove that they observed all the diligence of a good father of a family
Grade Six at the Mabini Elementary School in Bacolod City. On July 9, 1962 to prevent damage.
their teacher assigned them, together with three other classmates, to weed the
grass in the school premises. While thus engaged Maria Teresa Monfort found a
The underlying basis of the liability imposed by Article 2176 is the fault or
plastic headband, an ornamental object commonly worn by young girls over their
negligence accompanying the act or the omission, there being no willfulness or
hair. Jokingly she said aloud that she had found an earthworm and, evidently to
intent to cause damage thereby. When the act or omission is that of one person
frighten the Cuadra girl, tossed the object at her. At that precise moment the
for whom another is responsible, the latter then becomes himself liable under
latter turned around to face her friend, and the object hit her right eye. Smarting
Article 2180, in the different cases enumerated therein, such as that of the father
from the pain, she rubbed the injured part and treated it with some powder. The
or the mother under the circumstances above quoted. The basis of this
next day, July 10, the eye became swollen and it was then that the girl related
vicarious, although primary, liability is, as in Article 2176, fault or negligence,
the incident to her parents, who thereupon took her to a doctor for treatment.
which is presumed from that which accompanied the causative act or omission.
She underwent surgical operation twice, first on July 20 and again on August 4,
The presumption is merely prima facie and may therefore be rebutted. This is
1962, and stayed in the hospital for a total of twenty-three days, for all of which
the clear and logical inference that may be drawn from the last paragraph of
the parents spent the sum of P1,703.75. Despite the medical efforts, however,
Article 2180, which states "that the responsibility treated of in this Article shall
Maria Teresa Cuadra completely lost the sight of her right eye.
cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage."
Since the fact thus required to be proven is a matter of defense, the burden of
proof necessarily rests on the defendant. But what is the exact degree of
diligence contemplated, and how does a parent prove it in connection with a
particular act or omission of a minor child, especially when it takes place in his
absence or outside his immediate company? Obviously there can be no
meticulously calibrated measure applicable; and when the law simply refers to
"all the diligence of a good father of the family to prevent damage," it implies a
consideration of the attendant circumstances in every individual case, to
determine whether or not by the exercise of such diligence the damage could
have been prevented.

In the present case there is nothing from which it may be inferred that the
defendant could have prevented the damage by the observance of due care, or
that he was in any way remiss in the exercise of his parental authority in failing
to foresee such damage, or the act which caused it. On the contrary, his child
was at school, where it was his duty to send her and where she was, as he had
the right to expect her to be, under the care and supervision of the teacher. And
as far as the act which caused the injury was concerned, it was an innocent
prank not unusual among children at play and which no parent, however careful,
would have any special reason to anticipate much less guard against. Nor did it
reveal any mischievous propensity, or indeed any trait in the child's character
which would reflect unfavorably on her upbringing and for which the blame could
be attributed to her parents.

The victim, no doubt, deserves no little commiseration and sympathy for the
tragedy that befell her. But if the defendant is at all obligated to compensate her
suffering, the obligation has no legal sanction enforceable in court, but only the
moral compulsion of good conscience.

The decision appealed from is reversed, and the complaint is dismissed, without
pronouncement as to costs.
 since it is apparent that the proximate cause of the injury caused to the offended
party was his own fault or negligence.

DECISION

CIRIACO L. MERCADO, Petitioner, v. THE COURT OF APPEALS, MANUEL LABRADOR, J.:

QUISUMBING, JR., ET AL., Respondents.

Abad Santos & Pablo for Petitioner. This is a petition to review a decision of the Court of Appeals, which condemned
petitioner to pay P2,000 as moral damages and P50 for medical expenses, for a
Sycip, Quisumbing, Salazar & Associates for Respondents. physical injury caused by the son of petitioner, Augusto Mercado, on a classmate,
Manuel Quisumbing, Jr., both pupils of the Lourdes Catholic School, Kanlaon,
Quezon City. The case had originated in the Court of First Instance of Manila, Hon.
Bienvenido A. Tan, presiding, which dismissed the complaint filed by Manuel
Quisumbing, Jr. and his father against petitioner, father of the above-mentioned
SYLLABUS
Mercado. The facts found by the Court of Appeals are as
follows:jgc:chanrobles.com.ph

"Plaintiff-appellant Manuel Quisumbing, Jr. is the son of his co- plaintiff-appellants

1. DAMAGES; ARTICLE 2180 OF THE NEW CIVIL CODE NOT APPLICABLE TO Ana Pineda and Manuel L. Quisumbing, while Augusto Mercado is the son of
ACADEMIC EDUCATIONAL INSTITUTIONS; SITUATION CONTEMPLATED BY defendant-appellee Ciriaco L. Mercado, Manuel Quisumbing, Jr. and Augusto
ARTICLE. — Article 2180 of the new Civil Code which provides that "teachers or Mercado were classmates in the Lourdes Catholic School on Kanlaon, Quezon City.
heads of establishments of arts and trades shall be liable for damages caused by A ‘pitogo’, which figures prominently in this case, may be described as an empty
their pupils and students or apprentices, so long as they remain in their custody", nutshell used by children as a piggy bank. On February 22, 1956, Augusto Mercado
applies to an institution of arts and traders and not to any academic institution and and Manuel Quisumbing, Jr. quarrelled over a ‘pitogo’. As a result, Augusto
contemplates a situation where the pupil lives and boards with the teacher, such that wounded Manuel, Jr. on the right cheek with a piece of razor.
the control, direction and influence on the pupil supersede those of the parents. In
x       x       x
these circumstances the control or influence over the conduct and actions of the
pupil would pass from the father and mother to the teacher, and so would the
responsibility for the torts of the pupil.
"The facts of record clearly show that it was Augusto Mercado who started the
aggression. Undeniably, the ‘pitogo’ belonged to Augusto Mercado but he lent it to
2. ID.; MORAL DAMAGES; WHEN THEY SHOULD NOT BE AWARDED. — While
Benedicto P. Lim and in turn Benedicto lent it to Renato Legaspi. Renato was not
moral damages include physical suffering, which must have been caused to a boy
aware that the ‘pitogo’ belonged to Augusto, because right after Benedicto gave it to
wounded by another boy in a fight, they should not be awarded if the decision of the
him, Benedicto ran away to get a basket ball with which they could play. Manuel
court does not declare that any of the cases specified in Article 2219 of the Civil
Quisumbing, Jr. was likewise unaware that the ‘pitogo’ belonged to Augusto. He
Code in which moral damages may be recovered, has attended or occasioned the
thought it was the ‘pitogo’ of Benedicto P. Lim, so that when Augusto attempted to
physical injury. In the case at bar it does not appear that a criminal action for
get the ‘pitogo’ from Renato, Manuel, Jr. told him not to do so because Renato was
physical injuries was ever presented, since the offender was nine years old, and it
better at putting the chain into the holes of the ‘pitogo’. However, Augusto resented
does not appear that he acted with discernment when he inflicted the physical
Manuel, Jr.’s remark and he aggressively pushed the latter. The fight started then.
injuries. Even if it be assumed that the court considered the offender guilty of a
After Augusto gave successive blows to Manuel, Jr. and the latter was clutching his
quasi-delict when it imposed the moral damages, the award should not be sustained
stomach which bore the brunt of Augusto’s anger, Augusto seeing that Manuel, Jr.
was in a helpless position, cut him on the right check with a piece of razor.
x       x       x
"Although the doctor who treated Manuel Quisumbing, Jr., Antonio B. Past, testified
for plaintiffs-appellants, he did not declare as to the amount of fees he collected from
plaintiffs-appellants for the treatment of Manuel, Jr. The child was not even
hospitalized for the wound. We believe that the sum of P50.00 is a fair
approximation of the medical expenses incurred by plaintiffs-appellants.
x       x       x
"The damages specified in paragraphs C and D of the aforequoted portion of
plaintiffs-appellant’s complaint come under the class of moral damages. The
evidence of record shows that the child suffered moral damages by reason of the
wound inflicted by Augusto Mercado. Though such kind of damages cannot be fully
appreciated in terms of money, we believe that the sum of P2,000.00 would fully
compensate the child.
"As second cause of action, plaintiffs-appellants pray for P5,000.00 covering the
moral damages they allegedly suffered due to their son’s being wounded; and the
sum of P3,000.00 as attorney’s fees. The facts of record do not warrant the granting
of moral damages to plaintiffs-appellants Manuel Quisumbing and Ana Pineda.’In
law mental anguish is restricted, as a rule, to such mental pain or suffering as arises
from an injury or wrong to the person himself, as distinguished from that form of
mental suffering which is the accompaniment of sympathy or sorrow for another’s
suffering or which arises from a contemplation of wrongs committed on the person of
another. Pursuant to the rule stated, a husband or wife cannot recover for mental
suffering caused by his or her sympathy for the other’s suffering. Nor can a parent
recover for mental distress and anxiety on account of physical injury sustained by a
child or for anxiety for the safety of his child placed in peril by the negligence of
another.’ (15 Am. Jur. 597). Plaintiffs-appellants are not entitled to attorney’s fees, it
not appearing that defendant-appellee had wantonly disregarded their claim for
damages."cralaw virtua1aw library
In the first, second and third assignments of error, counsel for petitioner argues that
since the incident of the inflicting of the wound on respondent occurred in a Catholic
School (during recess time), through no fault of the father, petitioner herein, the
teacher or head of the school should be held responsible instead of the father. This
precise question was brought before this Court in Exconde v. Capuno and Capuno,
101 Phil., 843, but we held, through Mr. Justice Bautista:jgc:chanrobles.com.ph
"We find merit in this claim. It is true that under the law abovequoted, ‘teachers or
directors of arts and trades are liable for any damage caused by their pupils or
apprentices while they are under their custody’, but this provision only applies to an
institution of arts and trades and not to any academic educational institution (Padilla,
Civil Law, 1953 Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557)"
The last paragraph of Article 2180 of the Civil Code upon which petitioner rests his
claim that the school where his son was studying should be made liable, is as
follows:jgc:chanrobles.com.ph
"ART. 2180. . . .
"Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they remain
in their custody."cralaw virtua1aw library
It would seem that the clause "so long as they remain in their custody,"
contemplates a situation where the pupil lives and boards with the teacher, such that
the control, direction and influence on the pupil supersedes those of the parents. In
these circumstances the control or influence over the conduct and actions of the
pupil would pass from the father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation does not appear in the case
at bar; the pupils appear to go to school during school hours and go back to their
homes with their parents after school is over. The situation contemplated in the last
paragraph of Article 2180 does not apply, nor does paragraph 2 of said article, which
makes father or mother responsible for the damages caused by their minor children.
The claim of petitioner that responsibility should pass to the school must, therefore,
be held to be without merit.
We next come to the claim of petitioner that the moral damages fixed at P2,000 are
excessive. We note that the wound caused to respondent was inflicted in the course
of an ordinary or common fight between boys in a grade school. The Court of
Appeals fixed the medical expenses incurred in treating and curing the wound at
P50. Said court stated that the wound did not even require hospitalization. Neither
was Mercado found guilty of any offense nor the scar in Quisumbing’s face
pronounced to have caused a deformity, unlike the case of Araneta, Et. Al. v.
Arreglado, Et Al., 104 Phil., 529; 55 Off. Gaz. (9) 1561. Petitioner’s counsel argues
that if death call for P3,000 to P6,000, certainly the incised would could not cause
mental pain and suffering to the tune of P2,000.
In the decision of the Court of Appeals, said court pronounces that the child
Quisumbing suffered moral damages "by reason of the wound inflicted by Augusto
Mercado." While moral damages included physical suffering, which must have been
caused to the wounded boy Quisumbing (Art. 2217, Civil Code), the decision of the
court below does not declare that any of the cases specified in Article 2219 of the
Civil Code in which moral damages may be recovered, has attended or occasioned
the physical injury. The only possible circumstance in the case at bar in which moral
damages are recoverable would be if a criminal offense or a quasi-delict has been
committed.

It does not appear that a criminal action for physical injuries was ever presented.
The offender, Augusto Mercado, was nine years old and it does not appeal that he
had acted with discernment when he inflicted the physical injuries on Manuel
Quisumbing, Jr.

It is possible that the Court of Appeals may have considered Augusto Mercado
responsible for or guilty, of a quasi-delict causing physical injuries, within the
meaning of paragraph 2 of Article 2219. Even if we assume that said court
considered Mercado guilty of a quasi-delict when it imposed the moral damages, yet
the facts found by said court indicate that Augusto’s resentment, which motivated
the assault, was occasioned by the fact that Manuel, Jr. had tried to intervene in or
interfere with the attempt of Mercado to get "his pitogo from Renato." This is,
according to the decision appealed from, the reason why Mercado was incensed
and pushed Quisumbing who, in turn, also pushed Mercado. It is, therefore,
apparent that the proximate cause of the injury caused to Quisumbing was
Quisumbing’s own fault or negligence for having interfered with Mercado while trying
to get the pitogo from another boy. (Art. 2179, Civil Code.)

After considering all the facts as found by the Court of Appeals, we find that none of
the cases mentioned in Article 2219 of the Civil Code, which authorizes the grant of
moral damages, was shown to have existed. Consequently, the grant of moral
damages is not justified.

For the foregoing considerations, the decision appealed from is hereby reversed and
the petitioner is declared exempt or free from the payment of moral damages. The
award of P50 for medical expenses, however, is hereby affirmed. Without costs.

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,
vs.
ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President,
respectively, of a school of arts and trades, known under the name and style of
"Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M.
QUIBULUE, defendants-appellees.
Leovillo C. Agustin for plaintiffs-appellants. .
Honorato S. Reyes for appellee Brillantes, et al. .
Villareal, Almacen Navarra & Amores for appellee Daffon. .
TEEHANKEE, J.:
An appeal in forma pauperis  on pure questions of law from a decision of the Court of
First Instance of Manila. .
Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a
student in automotive mechanics at the Manila Technical Institute, Quezon Boulevard,
Manila, had filed on May 19, 1966, the action below for damages arising from the death
on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L.
Daffon, at the laboratory room of the said Institute. .
Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at
the time when the incident which gave rise to his action occurred was a member of the
Board of Directors of the institute; 1 the defendant Teodosio Valenton, the president
thereof; the defendant Santiago M. Quibulue, instructor of the class to which the
deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the
deceased. At the beginning the Manila Technical Institute was a single proprietorship,
but lately on August 2, 1962, it was duly incorporated."
The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court:
"(T)he deceased Dominador Palisoc and the defendant Virgilio L. Daffon were
classmates, and on the afternoon of March 10, 1966, between two and three o'clock,
they, together with another classmate Desiderio Cruz were in the laboratory room
located on the ground floor. At that time the classes were in recess. Desiderio Cruz and
Virgilio L. Daffon were working on a machine while Dominador Palisoc was merely
looking on at them. Daffon made a remark to the effect that Palisoc was acting like a
foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in
retaliation, gave Palisoc a strong flat blow on the face, which was followed by other fist
blows on the stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon
followed him and both exchanged blows until Palisoc stumbled on an engine block which
caused him to fall face downward. Palisoc became pale and fainted. First aid was
administered to him but he was not revived, so he was immediately taken to a hospital.
He never regained consciousness; finally he died. The foregoing is the substance of the
testimony of Desiderio Cruz, the lone witness to the incident."
The trial court expressly gave credence to this version of the incident, as testified to by
the lone eyewitness, Desiderio Cruz, a classmate of the protagonists, as that of a
disinterested witness who "has no motive or reason to testify one way or another in favor
of any party" and rejected the self-exculpatory version of defendant Daffon denying that
he had inflicted any fist blows on the deceased. .
With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who
performed the autopsy re "Cause of death: shock due to traumatic fracture of theribs (6th
and 7th, left, contusion of the pancreas and stomach with intra-gastric hemorrhage and
slight subarachnoid hemorrhage on the brain," and his testimony that these internal
injuries of the deceased were caused "probably by strong fist blows," the trial court found
defendant Daffon liable for the quasi delict under Article 2176 of the Civil Code.3 It held
that "(T)he act, therefore, of the accused Daffon in giving the deceased strong fistblows
in the stomach which ruptured his internal organs and caused his death falls within the
purview of this article of the Code."4
The trial court, however, absolved from liability the three other defendants-officials of the
Manila Technical Institute, in this wise:
... Their liabilities are based on the provisions of Article 2180 of the New Civil Code
which reads:
Art. 2180. ... .
Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students and apprentices, so long as they remain in
their custody.
In the opinion of the Court, this article of the Code is not applicable to the case at bar,
since this contemplates the situation where the control or influence of the teachers and
heads of school establishments over the conduct and actions by the pupil supersedes
those of the parents.
CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so
long as they remain in their custody" contained in Article 2180 of the new civil code
contemplated a situation where the pupil lives and boards with the teacher, such that the
control or influence on the pupil supersedes those of the parents. In those circumstances
the control or influence over the conduct and actions of the pupil as well as the
responsibilities for their sort would pass from the father and mother to the teachers.
(Ciriaco L. Mercado, Petitioner vs. the Court of Appeals, Manuel Quisumbing, Jr., et al.,
respondents, G.R. No. L-14862, May 30, 1960).5
There is no evidence that the accused Daffon lived and boarded with his teacher or the
other defendant officials of the school. These defendants cannot therefore be made
responsible for the tort of the defendant Daffon.
Judgment was therefore rendered by the trial court as follows:
1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the
deceased Dominador Palisoc (a) P6,000.00 for the death of Dominador Palisoc; (b)
P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral damages; (d)
P10,000.00 for loss of earning power, considering that the deceased was only between
sixteen and seventeen years, and in good health when he died, and (e) P2,000.00 for
attorney's fee, plus the costs of this action. .
2. Absolving the other defendants. .
3. Dismissing the defendants' counterclaim for lack of merit.
Plaintiffs' appeal raises the principal legal question that under the factual findings of the
trial court, which are now beyond review, the trial court erred in absolving the
defendants-school officials instead of holding them jointly and severally liable as
tortfeasors, with defendant Daffon, for the damages awarded them as a result of their
son's death. The Court finds the appeal, in the main, to be meritorious. .
1. The lower court absolved defendants-school officials on the ground that the provisions
of Article 2180, Civil Code, which expressly hold "teachers or heads of establishments of
arts and trades ... liable for damages caused by their pupils and students and
apprentices, so long as they remain in their custody," are not applicable to to the case at
bar, since "there is no evidence that the accused Daffon [who inflicted the fatal
fistblows]6 lived and boarded with his teacher or the other defendants-officials of the
school. These defendants cannot therefore be made responsible for the tort of the
defendant Daffon."
The lower court based its legal conclusion expressly on the Court's dictum in Mercado
vs. Court of Appeals,7 that "(I)t would seem that the clause "so long as they remain in
their custody," contemplates a situation where the pupil lives and boards with the
teacher, such that the control, direction and influence on the pupil supersedes those of
the parents. In these circumstances the control or influence over the conduct and actions
of the pupil would pass from the father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation does not appear in the case at
bar; the pupils appear to go to school during school hours and go back to their homes
with their parents after school is over." This dictum had been made in rejecting therein
petitioner father's contention that his minor son's school, Lourdes Catholic School at
Kanlaon, Quezon City [which was not a party to the case] should be held responsible,
rather than him as father, for the moral damages of P2,000.00 adjudged against him for
the physical injury inflicted by his son on a classmate. [A cut on the right cheek with a
piece of razor which costs only P50.00 by way of medical expenses to treat and cure,
since the wound left no scar.] The moral damages award was after all set aside by the
Court on the ground that none of the specific cases provided in Article 2219, Civil Code,
for awarding moral damages had been established, petitioner's son being only nine
years old and not having been shown to have "acted with discernment" in inflicting the
injuries on his classmate. .
The dictum in Mercado  was based in turn on another dictum in the earlier case
of Exconde vs. Capuno,8 where the only issue involved as expressly stated in the
decision, was whether the therein defendant-father could be civilly liable for damages
resulting from a death caused in a motor vehicle accident driven unauthorizedly and
negligently by his minor son, (which issue was resolved adversely against the father).
Nevertheless, the dictum in such earlier case that "It is true that under the law
abovequoted, teachers or directors of arts and trades are liable for any damage caused
by their pupils or apprentices while they are under their custody, but this provision only
applies to an institution of arts and trades and not to any academic educational
institution" was expressly cited and quoted in Mercado. .
2. The case at bar was instituted directly against the school officials and squarely raises
the issue of liability of teachers and heads of schools under Article 2180, Civil Code, for
damages caused by their pupils and students against fellow students on the school
premises. Here, the parents of the student at fault, defendant Daffon, are not involved,
since Daffon was already of age at the time of the tragic incident. There is no question,
either, that the school involved is a non-academic school, 9 the Manila Technical Institute
being admittedly a technical vocational and industrial school. .
The Court holds that under the cited codal article, defendants head and teacher of the
Manila Technical Institute (defendants Valenton and Quibulue, respectively) are liable
jointly and severally for damages to plaintiffs-appellants for the death of the latter's minor
son at the hands of defendant Daffon at the school's laboratory room. No liability
attaches to defendant Brillantes as a mere member of the school's board of directors.
The school itself cannot be held similarly liable, since it has not been properly impleaded
as party defendant. While plaintiffs sought to so implead it, by impleading improperly
defendant Brillantes, its former single proprietor, the lower court found that it had been
incorporated since August 2, 1962, and therefore the school itself, as thus incorporated,
should have been brought in as party defendant. Plaintiffs failed to do so,
notwithstanding that Brillantes and his co-defendants in their reply to plaintiffs' request
for admission had expressly manifested and made of record that "defendant Antonio C.
Brillantes is not the registered owner/head of the "Manila Technical Institute" which is
now a corporation and is not owned by any individual person."10
3. The rationale of such liability of school heads and teachers for the tortious acts of their
pupils and students, so long as they remain in their custody, is that they stand, to a
certain extent, as to their pupils and students, in loco parentis and are called upon to
"exercise reasonable supervision over the conduct of the child."11 This is expressly
provided for in Articles 349, 350 and 352 of the Civil Code.12 In the law of torts, the
governing principle is that the protective custody of the school heads and teachers is
mandatorily substituted for that of the parents, and hence, it becomes their obligation as
well as that of the school itself to provide proper supervision of the students' activities
during the whole time that they are at attendance in the school, including recess time, as
well as to take the necessary precautions to protect the students in their custody from
dangers and hazards that would reasonably be anticipated, including injuries that some
student themselves may inflict willfully or through negligence on their fellow students. .
4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion
in Exconde, "the basis of the presumption of negligence of Art. 1903 [now 2180] is
some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in
the exercise of their authority" 13 and "where the parent places the child under the
effective authority of the teacher, the latter, and not the parent, should be the one
answerable for the torts committed while under his custody, for the very reason that the
parent is not supposed to interfere with the discipline of the school nor with the authority
and supervision of the teacher while the child is under instruction." The school itself,
likewise, has to respond for the fault or negligence of its school head and teachers under
the same cited article.14
5. The lower court therefore erred in law in absolving defendants-school officials on the
ground that they could be held liable under Article 2180, Civil Code, only if the student
who inflicted the fatal fistblows on his classmate and victim "lived and boarded with his
teacher or the other defendants officials of the school." As stated above, the phrase used
in the cited article — "so long as (the students) remain in their custody" means the
protective and supervisory custody that the school and its heads and teachers exercise
over the pupils and students for as long as they are at attendance in the school,
including recess time. There is nothing in the law that requires that for such liability to
attach the pupil or student who commits the tortious act must live and board in the
school, as erroneously held by the lower court, and the dicta in Mercado (as well as
in Exconde) on which it relied, must now be deemed to have been set aside by the
present decision. .
6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school
must therefore be held jointly and severally liable for the quasi-delict of their co-
defendant Daffon in the latter's having caused the death of his classmate, the deceased
Dominador Palisoc. The unfortunate death resulting from the fight between the
protagonists-students could have been avoided, had said defendants but complied with
their duty of providing adequate supervision over the activities of the students in the
school premises to protect their students from harm, whether at the hands of fellow
students or other parties. At any rate, the law holds them liable unless they relieve
themselves of such liability, in compliance with the last paragraph of Article 2180, Civil
Code, by "(proving) that they observed all the diligence of a good father of a family to
prevent damage." In the light of the factual findings of the lower court's decision, said
defendants failed to prove such exemption from liability. .
7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death
of their son should be increased to P12,000.00 as set by the Court in People vs.
Pantoja,15 and observed in all death indemnity cases thereafter is well taken. The Court,
in Pantoja, after noting the decline in the purchasing power of the Philippine peso, had
expressed its "considered opinion that the amount of award of compensatory damages
for death caused by a crime or quasi-delict should now be P12,000.00." The Court
thereby adjusted the minimum amount of "compensatory damages for death caused by a
crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of
P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have
been mitigating circumstances" pursuant to the express provisions of said codal article. .
8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded
exemplary damages and imposed legal interest on the total damages awarded, besides
increasing the award of attorney's fees all concern matters that are left by law to the
discretion of the trial court and the Court has not been shown any error or abuse in the
exercise of such discretion on the part of the trial court.16 Decisive here is the touchstone
provision of Article 2231, Civil Code, that "In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence." No gross negligence on the part of
defendants was found by the trial court to warrant the imposition of exemplary damages,
as well as of interest and increased attorney's fees, and the Court has not been shown in
this appeal any compelling reason to disturb such finding. .
ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .
1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M.
Quibulue jointly and severally to pay plaintiffs as heirs of the deceased Dominador
Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and
compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of
earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both
instances; 2. absolving defendant Antonio C. Brillantes from the complaint; and 3.
dismissing defendants' counterclaims. .

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES
AND ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ,
LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR.
ROMULO CASTILLO and LILIA CADIZ, respondents.
Jose C. Flores, Jr. for petitioners.
Jovito E. Talabong for private respondents.
PARAS, J.:
This is a petition for review of the decision * of the Court of Appeals, the
dispositive portion of which reads:
WHEREFORE, the decision under appeal is hereby affirmed, with the following
modifications: (1) Exemplary damages in the amount of P20,000.00 are hereby
awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral
damages of P20,000.00 and attorney's fees in the amount of P15,000.00
awarded to plaintiffs in the decision under appeal; (2) St. Francis High School,
represented by the Spouses Fernando Nantes and Rosario Lacandula, and
Benjamin Illumin, are hereby held jointly and severally liable with defendants
Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment
to plaintiffs of the abovementioned actual damages, moral damages, exemplary
damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and
Nida Aragones are hereby absolved from liability, and the case against them,
together with their respective counterclaims, is hereby ordered dismissed.
SO ORDERED. (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a freshman student of
Section 1-C at the St. Francis High School, wanted to join a school picnic
undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon.
Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz
Castillo, because of short notice, did not allow their son to join but merely
allowed him to bring food to the teachers for the picnic, with the directive that he
should go back home after doing so. However, because of persuasion of the
teachers, Ferdinand went on with them to the beach.
During the picnic and while the students, including Ferdinand, were in the water,
one of the female teachers was apparently drowning. Some of the students,
including Ferdinand, came to her rescue, but in the process, it was Ferdinand
himself who drowned. His body was recovered but efforts to resuscitate him
ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later
to the Mt. Cannel General Hospital where he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No.
8834, in the Regional Trial Court, Branch LVIII of Lucena City, against the St.
Francis High School, represented by the spouses Fernando Nantes and Rosario
Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves,
Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for
Damages which respondents allegedly incurred from the death of their 13-year
old son, Ferdinand Castillo. Contending that the death of their son was due to
the failure of the petitioners to exercise the proper diligence of a good father of
the family in preventing their son's drowning, respondents prayed of actual,
moral and exemplary damages, attorney's fees and expenses for litigation.
The trial court found in favor of the respondents and against petitioners-teachers
Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly
and severally to pay respondents the sum of P30,000.00 as actual damages,
P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the
costs. The court a quo reasoned:
Taking into consideration the evidence presented, this Court believes that the
defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly
Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence
required of them by law under the circumstances to guard against the harm they
had foreseen. (pp. 2930, Rollo)
x x x           x x x          x x x
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at
the picnic site, the drowning incident had already occurred, such fact does not
and cannot excuse them from their liability. In fact, it could be said that by
coming late, they were remiss in their duty to safeguard the students. (p.
30, Rollo)
The students, young as they were then (12 to 13 years old), were easily
attracted to the sea without aforethought of the dangers it offers. Yet, the
precautions and reminders allegedly performed by the defendants-teachers
definitely fell short of the standard required by law under the circumstances.
While the defendants-teachers admitted that some parts of the sea where the
picnic was held are deep, the supposed lifeguards of the children did not even
actually go to the water to test the depth of the particular area where the children
would swim. And indeed the fears of the plaintiffs that the picnic area was
dangerous was confirmed by the fact that three persons during the picnic got
drowned at the same time. Had the defendant teachers made an actual and
physical observation of the water before they allowed the students to swim, they
could have found out that the area where the children were swimming was
indeed dangerous. And not only that, the male teachers who according to the
female teachers were there to supervise the children to ensure their safety were
not even at the area where the children were swimming. They were somewhere
and as testified to by plaintiffs' witness they were having a drinking spree. (pp.
55-56, Rollo)
On the other hand, the trial court dismissed the case against the St. Francis
High School, Benjamin Illumin and Aurora Cadorna. Said the court a quo:
As shown and adverted to above, this Court cannot find sufficient evidence
showing that the picnic was a school sanctioned one. Similarly no evidence has
been shown to hold defendants Benjamin Illumin and Aurora Cadorna
responsible for the death of Ferdinand Castillo together with the other defendant
teachers. It has been sufficiently shown that Benjamin Illumin had himself not
consented to the picnic and in fact he did not join it. On the other hand,
defendant Aurora Cadorna had then her own class to supervise and in fact she
was not amongst those allegedly invited by defendant Connie Arquio to
supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals.
Respondents-spouses assigned the following errors committed by the trial court:
1. The lower court erred in not declaring the defendant St. Francis High School
and its administrator/principal Benjamin Illumin as equally liable not only for its
approved co-curricular activities but also for those which they unreasonably
failed to exercise control and supervision like the holding of picnic in the
dangerous water of Talaan Beach, Sariaya, Quezon.
2. The lower court erred in not declaring the St. Francis High School and
principal Benjamin Illumin as jointly and solidarily liable with their co-defendants-
teachers Rosario Lacandula, et als., for the tragic death of Ferdinand Castillo in
a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.
3. The lower court erred in not declaring higher amount for actual and moral
damages for the untimely and tragic death of Ferdinand Castillo in favor of
plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants' submission well-taken.
Even were We to find that the picnic in question was not a school-sponsored
activity, nonetheless it cannot be gainsaid that the same was held under the
supervision of the teachers employed by the said school, particularly the teacher
in charge of Class I-C to whom the victim belonged, and those whom she invited
to help her in supervising the class during the picnic. Considering that the
court a quo found negligence on the part of the six defendants-teachers who, as
such, were charged with the supervision of the children during the picnic, the St.
Francis High School and the school principal, Benjamin Illumin, are liable under
Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180
of the Civil Code. They cannot escape liability on the mere excuse that the
picnic was not an "extra-curricular activity of the St. Francis High School." We
find from the evidence that, as claimed by plaintiffs-appellants, the school
principal had knowledge of the picnic even from its planning stage and had even
been invited to attend the affair; and yet he did not express any prohibition
against undertaking the picnic, nor did he prescribe any precautionary measures
to be adopted during the picnic. At the least, We must find that the school and
the responsible school officials, particularly the principal, Benjamin Illumin, had
acquiesced to the holding of the picnic.
Under Article 2180, supra, the defendant school and defendant school principal
must be found jointly and severally liable with the defendants-teachers for the
damages incurred by the plaintiffs as a result of the death of their son. It is the
rule that in cases where the above-cited provisions find application, the
negligence of the employees in causing the injury or damage gives rise to a
presumption of negligence on the part of the owner and/or manager of the
establishment (in the present case, St. Francis High School and its principal);
and while this presumption is not conclusive, it may be overthrown only by clear
and convincing proof that the owner and/or manager exercised the care and
diligence of a good father of a family in the selection and/or supervision of the
employee or employees causing the injury or damage (in this case, the
defendants-teachers). The record does not disclose such evidence as would
serve to overcome the aforesaid presumption and absolve the St. Francis High
School and its principal from liability under the above-cited provisions.
As to the third assigned error interposed by plaintiffs-appellants, while We
cannot but commiserate with the plaintiffs for the tragedy that befell them in the
untimely death of their son Ferdinand Castillo and understand their suffering as
parents, especially the victim's mother who, according to appellants, suffered a
nervous breakdown as a result of the tragedy, We find that the amounts fixed by
the court a quo as actual damages and moral damages (P30,000.00 and
P20,000.00, respectively) are reasonable and are those which are sustained by
the evidence and the law.
However, We believe that exemplary or corrective damages in the amount of
P20,000.00 may and should be, as it is hereby, imposed in the present case by
way of example of correction for the public good, pursuant to Article 2229 of the
Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed
by the trial court:
1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas,
Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointly and
severally liable for damages such finding not being supported by facts and
evidence.
2. ". . . in dismissing the counterclaim interposed by the defendants. (p.
59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendants-appellants appeal is that plaintiffs, the parents of
the victim Ferdinand Castillo, were not able to prove by their evidence that they
did not give their son consent to join the picnic in question. However, We agree
with the trial court in its finding that whether or not the victim's parents had given
such permission to their son was immaterial to the determination of the
existence of liability on the part of the defendants for the damage incurred by the
plaintiffs-appellants as a result of the death of their son. What is material to such
a determination is whether or not there was negligence on the part of
defendants vis-a-vis the supervision of the victim's group during the picnic; and,
as correctly found by the trial court, an affirmative reply to this question has
been satisfactorily established by the evidence, as already pointed out.
However, We sustain defendants-appellants insofar as two of the defendants-
teachers, Yoly Jaro and Nida Aragones, are concerned. As to them, the trial
court found:
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at
the picnic site, the drowning incident had already occurred, such fact does not
and cannot excuse them from their liability. In fact, it could be said that by
coming late, they were remiss in their duty to safeguard the students.
The evidence shows that these two defendants had satisfactorily explained why
they were late in going to the picnic site, namely, that they had to attend to the
entrance examination being conducted by the school which is part of their duty
as teachers thereof. Since they were not at the picnic site during the occurrence
in question, it cannot be said that they had any participation in the negligence
attributable to the other defendants-teachers who failed to exercise diligence in
the supervision of the children during the picnic and which failure resulted in the
drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the
two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the injury
caused to the plaintiffs because of the death of their son resulting from his
drowning at the picnic. Accordingly, they must be absolved from any liability.
As to the second assigned error raised by defendants-appellants, We agree with
the court a quo that the counterclaim must be dismissed for lack of merit. (pp.
59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:
A) Whether or not there was negligence attributable to the defendants which will
warrant the award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is
applicable to the case at bar;
C) Whether or not the award of exemplary and moral damages is proper under Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982,
the circumstances surrounding the case at bar. (pp. 81-82, Rollo) you did not know that your son join the picnic?

In the resolution of January 16, 1989, We gave due course to the petition and A No, sir, I did not know.
required the parties to submit their respective memoranda.
Q Did you not look for your son during that time?
The petition is impressed with merit.
A I am too busy with my profession, that is why I was not able, sir.
If at all petitioners are liable for negligence, this is because of their own
negligence or the negligence of people under them. In the instant case however, Q You did not ask your wife?
as will be shown hereunder, petitioners are neither guilty of their own negligence
or guilty of the negligence of those under them. A I did not, sir.

Hence, it cannot be said that they are guilty at all of any negligence. Q And neither did your wife tell you that your son join the picnic?
Consequently they cannot be held liable for damages of any kind.
A Later on after 12:00, sir.
At the outset, it should be noted that respondent spouses, parents of the victim
Ferdinand, allowed their son to join the excursion.
Q And during that time you were too busy that you did not inquire whether your
son have joined that picnic?
Testimony of Dr. Castillo on cross exam. by Atty. Flores
A Yes, sir.
Q Now, when your son asked you for money to buy food, did you not ask him
where he will bring this?
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)
A I asked him where he was going, he answered, I am going to the picnic, and
The fact that he gave money to his son to buy food for the picnic even without
when I asked him where, he did not answer, sir.
knowing where it will be held, is a sign of consent for his son to join the same.
Furthermore.
Q And after giving the money, you did not tell him anything more?
Testimony of Dr. Lazaro on cross examination:
A No more, sir.
Q How did you conduct this mental and physical examination?
Q And after that you just learned that your son join the picnic?
A I have interviewed several persons and the patient herself She even felt guilty
A Yes, sir. about the death of her son because she cooked adobo for him so he could join
the excursion where her son died of drowning.
Q And you came to know of it after the news that your son was drowned in the
picnic came to you, is that correct? Q Why were you able to say she was feeling guilty because she was the one
who personally cooked the adobo for her son?
A Yes, sir.
A It was during the interview that I had gathered it from the patient herself. She
was very sorry had she not allowed her son to join the excursion her son would
have not drowned. I don't know if she actually permitted her son although
she said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19,
hearing of April 30, 1984, Dr. Lazaro — witness).
Respondent Court of Appeals committed an error in applying Article 2180 of the
Civil Code in rendering petitioner school liable for the death of respondent's son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
x x x           x x x          x x x
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
Under this paragraph, it is clear that before an employer may be held liable for
the negligence of his employee, the act or omission which caused damage or
prejudice must have occurred while an employee was in the performance of his
assigned tasks.
In the case at bar, the teachers/petitioners were not in the actual performance of
their assigned tasks. The incident happened not within the school premises, not
on a school day and most importantly while the teachers and students were
holding a purely private affair, a picnic. It is clear from the beginning that the
incident happened while some members of the I-C class of St. Francis High
School were having a picnic at Talaan Beach. This picnic had no permit from the
school head or its principal, Benjamin Illumin because this picnic is not a school
sanctioned activity neither is it considered as an extra-curricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal
Illumin of the planning of the picnic by the students and their teachers does not
in any way or in any manner show acquiescence or consent to the holding of the
same. The application therefore of Article 2180 has no basis in law and neither
is it supported by any jurisprudence. If we were to affirm the findings of
respondent Court on this score, employers wig forever be exposed to the risk
and danger of being hailed to Court to answer for the misdeeds or omissions of
the employees even if such act or omission he committed while they are not in
the performance of their duties.
Finally, no negligence could be attributable to the petitioners-teachers to warrant
the award of damages to the respondents-spouses.
Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand
belonged, did her best and exercised diligence of a good father of a family to
prevent any untoward incident or damages to all the students who joined the
picnic.
In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are
both P.E. instructors and scout masters who have knowledge in First Aid
application and swimming. Moreover, even respondents' witness, Segundo
Vinas, testified that "the defendants (petitioners herein) had life savers
especially brought by the defendants in case of emergency." (p. 85, Rollo) The
records also show that both petitioners Chavez and Vinas did all what is
humanly possible to save the child.
Testimony of Luisito Vinas on cross examination,
Q And when you saw the boy, Ferdinand Castillo, you approached the boy and
claim also having applied first aid on him?
A Yes, sir.
Q And while you were applying the so called first aid, the children were covering
you up or were surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not?
A No, sir.
Q You mean you were in calm and peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of
first aid?
A Yes, sir.
Q You have never been disturbed, "nababahala" in the process of your
application of the first aid on the body of Ferdinand Castillo?
A No, sir, because we were attending to the application of first aid that we were
doing, sir.
Q After you have applied back to back pressure and which you claimed the boy
did not respond, were you not disturb anyway?
A I was disturbed during that time, sir.
Q For how many minutes have you applied the back to back pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the
body of Ferdinand Castillo?
A Yes, sir.
Q Will you please describe how you applied a single act of back to back
pressure?
A This has been done by placing the boy lay first downwards, then the face was
a little bit facing right and doing it by massaging the back of the child, sir." (TSN,
pp. 32-35, hearing of July 30, 1984)
Testimony of Tirso de Chavez on direct examination
ATTY. FLORES:
Q Who actually applied the first aid or artificial respiration to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back
to back pressure and took notice of the condition of the child. We placed the feet
in a higher position, that of the head of the child, sir.
Q After you have placed the boy in that particular position, where the feet were
on a higher level than that of the head, what did you do next?
A The first thing that we did, particularly myself, was that after putting the child in
that position, I applied the back to back pressure and started to massage from
the waistline up, but I noticed that the boy was not responding, sir.
Q For how long did you apply this back to back pressure on the boy?
A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you do?
A When we noticed that the boy was not responding, we changed the position of
the boy by placing the child facing upwards laying on the sand then we applied
the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)
With these facts in mind, no moral nor exemplary damages may be awarded in
favor of respondents-spouses. The case at bar does not fall under any of the
grounds to grant moral damages.
Art. 2217. Moral Damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result
of the defendant's wrongful act or omission.
Moreover, as already pointed out hereinabove, petitioners are not guilty of any
fault or negligence, hence, no moral damages can be assessed against them.
While it is true that respondents-spouses did give their consent to their son to
join the picnic, this does not mean that the petitioners were already relieved of
their duty to observe the required diligence of a good father of a family in
ensuring the safety of the children. But in the case at bar, petitioners were able
to prove that they had exercised the required diligence. Hence, the claim for
moral or exemplary damages becomes baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987,

finding petitioners herein guilty of negligence and liable for the death of
Ferdinand Castillo and awarding the respondents damages, is hereby SET
ASIDE insofar as the petitioners herein are concerned, but the portion of the
said decision dismissing their counterclaim, there being no merit, is hereby
AFFIRMED.

SO ORDERED.

MAXIMINO SOLIMAN, JR., represented by his judicial guardian VIRGINIA C.
SOLIMAN, petitioner,
vs.
HON. JUDGE RAMON TUAZON, Presiding Judge of Branch LXI, Regional Trial Court of
Region III, Angeles City, and the REPUBLIC CENTRAL COLLEGES, represented by its
President, respondents.
Mariano Y. Navarro for Republic Central Colleges.
RESOLUTION
FELICIANO, J.:
On 22 March 1983, petitioner Soliman, Jr. filed a civil complaint for damages against private
respondent Republic Central Colleges ("Colleges"), the R.L. Security Agency Inc. and one
Jimmy B. Solomon, a security guard, as defendants. The complaint alleged that:
. . . on 13 August 1982, in the morning thereof, while the plaintiff was in the campus ground
and premises of the defendant, REPUBLIC CENTRAL COLLEGES, as he was and is still a
regular enrolled student of said school taking his morning classes, the defendant, JIMMY B.
SOLOMON, who was on said date and hour in the premises of said school performing his
duties and obligations as a duly appointed security guard under the employment, supervision
and control of his employer-defendant R.L. SECURITY AGENCY, INC., headed by Mr.
Benjamin Serrano, without any provocation, in a wanton, fraudulent, reckless, oppressive or
malevolent manner, with intent to kill, attack, assault, strike and shoot the plaintiff on the
abdomen with a .38 Caliber Revolver, a deadly weapon, which ordinarily such wound
sustained would have caused plaintiff's death were it not for the timely medical assistance
given to him. The plaintiff was treated and confined at Angeles Medical Center, Angeles City,
and, as per doctor's opinion, the plaintiff may not be able to attend to his regular classes and
will be incapacitated in the performance of his usual work for a duration of from three to four
months before his wounds would be completely healed. 1
Private respondent Colleges filed a motion to dismiss, contending that the complaint stated no
cause of action against it. Private respondent argued that it is free from any liability for the
injuries sustained by petitioner student for the reason that private respondent school was not
the employer of the security guard charged, Jimmy Solomon, and hence was not responsible
for any wrongful act of Solomon. Private respondent school further argued that Article 2180,
7th paragraph, of the Civil Code did not apply, since said paragraph holds teachers and
heads of establishment of arts and trades liable for damages caused by their pupils and
students or apprentices, while security guard Jimmy Solomon was not a pupil, student or
apprentice of the school.
In an order dated 29 November 1983, respondent Judge granted private respondent school's
motion to dismiss, holding that security guard Jimmy Solomon was not an employee of the
school which accordingly could not be held liable for his acts or omissions. Petitioner moved
for reconsideration, without success.
In this Petition for Certiorari and Prohibition, it is contended that respondent trial judge
committed a grave abuse of discretion when he refused to apply the provisions of Article
2180, as well as those of Articles 349, 350 and 352, of the Civil Code and granted the
school's motion to dismiss.
Under Article 2180 of the Civil Code, the obligation to respond for damage inflicted by one
against another by fault or negligence exists not only for one's own act or omission, but also
for acts or omissions of a person for whom one is by law responsible. Among the persons
held vicariously responsible for acts or omissions of another person are the following:
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in
any business or industry.
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages
caused by their pupils, their students or apprentices, so long as they remain in their custody.
x x x           x x x          x x x
The first paragraph quoted above offers no basis for holding the Colleges liable for the
alleged wrongful acts of security guard Jimmy B. Solomon inflicted upon petitioner Soliman,
Jr. Private respondent school was not the employer of Jimmy Solomon. The employer of
Jimmy Solomon was the R.L. Security Agency Inc., while the school was the client or
customer of the R.L. Security Agency Inc. It is settled that where the security agency, as here,
recruits, hires and assigns the work of its watchmen or security guards, the agency is the
employer of such guards or watchmen. 2 Liability for illegal or harmful acts committed by the
security guards attaches to the employer agency, and not to the clients or customers of such
agency. 3 As a general rule, a client or customer of a security agency has no hand in
selecting who among the pool of security guards or watchmen employed by the agency shall
be assigned to it; the duty to observe the diligence of a good father of a family in the selection
of the guards cannot, in the ordinary course of events, be demanded from the client whose
premises or property are protected by the security guards. The fact that a client company may
give instructions or directions to the security guards assigned to it, does not, by itself, render
the client responsible as an employer of the security guards concerned and liable for their
wrongful acts or omissions. Those instructions or directions are ordinarily no more than
requests commonly envisaged in the contract for services entered into with the security
agency. There being no employer-employee relationship between the Colleges and Jimmy
Solomon, petitioner student cannot impose vicarious liability upon the Colleges for the acts of
security guard Solomon.
Since there is no question that Jimmy Solomon was not a pupil or student or an apprentice of
the Colleges, he being in fact an employee of the R.L. Security Agency Inc., the other above-
quoted paragraph of Article 2180 of the Civil Code is similarly not available for imposing
liability upon the Republic Central Colleges for the acts or omissions of Jimmy Solomon.
The relevant portions of the other Articles of the Civil Code invoked by petitioner are as
follows:
Art. 349. The following persons shall exercise substitute parental authority:
xxx xxx xxx
(2) Teachers and professors;
xxx xxx xxx
(4) Directors of trade establishments with regard to apprentices;
xxx xxx xxx
Art. 350. The persons named in the preceding article shall exercise reasonable supervision
over the conduct of the child.
xxx xxx xxx
Art. 352. The relations between teacher and pupil, professor and student are fixed by
government regulations and those of each school or institution. In no case shall corporal
punishment be countenanced. The teacher or professor shall cultivate the best potentialities
of the heart and mind of the pupil or student.
In Palisoc v. Brillantes, 4 invoked by petitioner, the Court held the owner and president of a
school of arts and trades known as the "Manila Technical Institute," Quezon Blvd., Manila,
responsible in damages for the death of Dominador Palisoc, a student of Institute, which
resulted from fist blows delivered by Virgilio L. Daffon, another student of the Institute. It will
be seen that the facts of Palisoc v. Brillantes brought it expressly within the 7th paragraph of
Article 2180, quoted above; but those facts are entirely different from the facts existing in the
instant case.
Persons exercising substitute parental authority are made responsible for damage inflicted
upon a third person by the child or person subject to such substitute parental authority. In the
instant case, as already noted, Jimmy Solomon who committed allegedly tortious acts
resulting in injury to petitioner, was not a pupil, student or apprentice of the Republic Central
Colleges; the school had no substitute parental authority over Solomon.
Clearly, within the confines of its limited logic, i.e., treating the petitioner's claim as one based
wholly and exclusively on Article 2180 of the Civil Code, the order of the respondent trial
judge was correct. Does it follow, however, that respondent Colleges could not be held liable
upon any other basis in law, for or in respect of the injury sustained by petitioner, so as to
entitle respondent school to dismissal of petitioner's complaint in respect of itself?
The very recent case of the Philippine School of Business Administration (PSBA) v. Court of
Appeals, 5 requires us to give a negative answer to that question.
In PSBA, the Court held that Article 2180 of the Civil Code was not applicable where a
student had been injured by one who was an outsider or by one over whom the school did not
exercise any custody or control or supervision. At the same time, however, the Court stressed
that an implied contract may be held to be established between a school which accepts
students for enrollment, on the one hand, and the students who are enrolled, on the other
hand, which contract results in obligations for both parties:
When an academic institution accepts students for enrollment, there is established
a contract between them, resulting in bilateral obligations which parties are bound to comply
with. For its part, the school undertakes to provide the student with an education that would
presumably suffice to equip him with the necessary tools and skills to pursue higher education
or a profession. On the other hand, the student covenants to abide by the school's academic
requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing their
students with an atmosphere that promotes or assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher
mathematics or explore the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the school premises a constant
threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to
maintain peace and order within the campus premises and to prevent the breakdown
thereof. 6
In that case, the Court was careful to point out that:
In line, therefore, with the most recent jurisprudence of this Court, and in order to avoid a
possible substantial miscarriage of justice, and putting aside technical considerations, we
consider that respondent trial judge committed serious error correctible by this Court in the
instant case.
ACCORDINGLY, the Court Resolved to GRANT DUE COURSE to the Petition, to TREAT the
comment of respondent Colleges as its answer, and to REVERSE and SET ASIDE the Order
dated 29 November 1983. This case is REMANDED to the court a quo for further proceedings
consistent with this Resolution.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the
contract between the school and Bautista had been breached thru the former's negligence in
providing proper security measures. This would be for the trial court to determine. And, even if
there be a finding of negligence, the same could give rise generally to a breach of contractual
obligation only. Using the test of Cangco, supra, the negligence of the school would not be
relevant absent a contract. In fact, that negligence becomes material only because of the
contractual relation between PSBA and Bautista. In other words, a contractual relation is a
condition sine qua non to the school's liability. The negligence of the school cannot exist
independently of the contract, unless the negligence occurs under the circumstances set out
in Article 21 of the Civil Code.

The Court is not unmindful of the attendant difficulties posed by the obligation of schools,
above-mentioned, for conceptually a school, like a common carrier, cannot be an insurer of its
students against all risks. This is specially true in the populous student communities of the so-
called "university belt" in Manila where there have been reported several incidents ranging
from gang wars to other forms of hooliganism. It would not be equitable to expect of schools
to anticipate all types of violent trespass upon their premises, for notwithstanding the security
measures installed, the same may still fail against an individual or group determined to carry
out a nefarious deed inside school premises and environs. Should this be the case, the
school may still avoid liability by proving that the breach of its contractual obligation to the
students was not due to its negligence, here statutorily defined to be the omission of that
degree of diligence which is required by the nature of obligation and corresponding to the
circumstances of person, time and place. 7

In the PSBA case, the trial court had denied the school's motion to dismiss the complaint
against it, and both the Court of Appeals and this Court affirmed the trial court's order. In the
case at bar, the court a quo granted the motion to dismiss filed by respondent Colleges, upon
the assumption that petitioner's cause of action was based, and could have been based, only
on Article 2180 of the Civil Code. As PSBA, however, states, acts which are tortious or
allegedly tortious in character may at the same time constitute breach of a contractual, or
other legal, obligation. Respondent trial judge was in serious error when he supposed that
petitioner could have no cause of action other than one based on Article 2180 of the Civil
Code. Respondent trial judge should not have granted the motion to dismiss but rather should
have, in the interest of justice, allowed petitioner to prove acts constituting breach of an
obligation ex contractu or ex lege on the part of respondent Colleges.
 had joined a campaign to visit the public schools in Dipolog City to solicit
enrollment.

The Facts

The facts, as found by the Court of Appeals, are as follows:

"Claiming damages for the death of their only son, Sherwin Carpitanos, spouses
William Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against
James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the
vehicle owner, Vivencio Villanueva and St. Mary’s Academy before the Regional
Trial Court of Dipolog City.

"On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City
rendered its decision the dispositive portion of which reads as follows:

"‘WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in

the following manner:

1. Defendant St. Mary’s Academy of Dipolog City, is hereby ordered to pay

plaintiffs William Carpitanos and Luisa Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of

Sherwin S. Carpitanos;

ST. MARY'S ACADEMY, petitioner, b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by
vs. plaintiffs for burial and related expenses;
WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL,
JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO c. TEN THOUSAND PESOS (P10,000.00) for attorney’s fees;
VILLANUEVA, respondents.
d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages;
DECISION and to pay costs.

PARDO, J.: 2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada
Daniel are hereby ordered to pay herein plaintiffs the amount of damages
The Case above-stated in the event of insolvency of principal obligor St. Mary’s Academy
of Dipolog City;
The case is an appeal via certiorari from the decision of the Court of Appeals as
1 

well as the resolution denying reconsideration, holding petitioner liable for 3. Defendant James Daniel II, being a minor at the time of the commission of the
damages arising from an accident that resulted in the death of a student who tort and who was under special parental authority of defendant St. Mary’s
Academy, is ABSOLVED from paying the above-stated damages, same being
adjudged against defendants St. Mary’s Academy, and subsidiarily, against his
parents;
4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His
counterclaim not being in order as earlier discussed in this decision, is hereby
DISMISSED.
IT IS SO ORDERED."’ (Decision, pp. 32-33; Records, pp. 205-206)."
"From the records it appears that from 13 to 20 February 1995, defendant-
appellant St. Mary’s Academy of Dipolog City conducted an enrollment drive for
the school year 1995-1996. A facet of the enrollment campaign was the
visitation of schools from where prospective enrollees were studying. As a
student of St. Mary’s Academy, Sherwin Carpitanos was part of the campaigning
group. Accordingly, on the fateful day, Sherwin, along with other high school
students were riding in a Mitsubishi jeep owned by defendant Vivencio
Villanueva on their way to Larayan Elementary School, Larayan, Dapitan City.
The jeep was driven by James Daniel II then 15 years old and a student of the
same school. Allegedly, the latter drove the jeep in a reckless manner and as a
result the jeep turned turtle.
"Sherwin Carpitanos died as a result of the injuries he sustained from the
accident." 2
In due time, petitioner St. Mary’s academy appealed the decision to the Court of
Appeals.3
On February 29, 2000, the Court of Appeals promulgated a decision reducing
the actual damages to P25,000.00 but otherwise affirming the decision a quo, in
toto.
4
On February 29, 2000, petitioner St. Mary’s Academy filed a motion for
reconsideration of the decision. However, on May 22, 2000, the Court of
Appeals denied the motion. 5
Hence, this appeal. 6 causes.’ In other words, the negligence must be the proximate cause of the
The Issues
1) Whether the Court of Appeals erred in holding the petitioner liable for
damages for the death of Sherwin Carpitanos.
2) Whether the Court of Appeals erred in affirming the award of moral damages
against the petitioner.
The Court’s Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Mary’s Academy liable for the death of
Sherwin Carpitanos under Articles 218 and 219 of the Family Code, pointing out
7  8 
that petitioner was negligent in allowing a minor to drive and in not having a
teacher accompany the minor students in the jeep.
Under Article 218 of the Family Code, the following shall have special parental
authority over a minor child while under their supervision, instruction or custody:
(1) the school, its administrators and teachers; or (2) the individual, entity or
institution engaged in child care. This special parental authority and
responsibility applies to all authorized activities, whether inside or outside the
premises of the school, entity or institution. Thus, such authority and
responsibility applies to field trips, excursions and other affairs of the pupils and
students outside the school premises whenever authorized by the school or its
teachers.9
Under Article 219 of the Family Code, if the person under custody is a minor,
those exercising special parental authority are principally and solidarily liable for
damages caused by the acts or omissions of the unemancipated minor while
under their supervision, instruction, or custody.10
However, for petitioner to be liable, there must be a finding that the act or
omission considered as negligent was the proximate cause of the injury caused
because the negligence must have a causal connection to the accident. 11
"In order that there may be a recovery for an injury, however, it must be shown
that the ‘injury for which recovery is sought must be the legitimate consequence
of the wrong done; the connection between the negligence and the injury must
be a direct and natural sequence of events, unbroken by intervening efficient
injury. For, ‘negligence, no matter in what it consists, cannot create a right of
action unless it is the proximate cause of the injury complained of.’ And ‘the
proximate cause of an injury is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.’" 12
In this case, the respondents failed to show that the negligence of petitioner was
the proximate cause of the death of the victim.
Respondents Daniel spouses and Villanueva admitted that the immediate cause
of the accident was not the negligence of petitioner or the reckless driving of
James Daniel II, but the detachment of the steering wheel guide of the jeep.
In their comment to the petition, respondents Daniel spouses and Villanueva
admitted the documentary exhibits establishing that the cause of the accident
was the detachment of the steering wheel guide of the jeep. Hence, the cause of
the accident was not the recklessness of James Daniel II but the mechanical
defect in the jeep of Vivencio Villanueva. Respondents, including the spouses
Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the
report and testimony of the traffic investigator who stated that the cause of the
accident was the detachment of the steering wheel guide that caused the jeep to
turn turtle.
Significantly, respondents did not present any evidence to show that the
proximate cause of the accident was the negligence of the school authorities, or
the reckless driving of James Daniel II. Hence, the respondents’ reliance on
Article 219 of the Family Code that "those given the authority and responsibility
under the preceding Article shall be principally and solidarily liable for damages
caused by acts or omissions of the unemancipated minor" was unfounded.
Further, there was no evidence that petitioner school allowed the minor James
Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched
Villanueva, grandson of respondent Vivencio Villanueva, who had possession
and control of the jeep. He was driving the vehicle and he allowed James Daniel
II, a minor, to drive the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of the minor
driver or mechanical detachment of the steering wheel guide of the jeep, must
be pinned on the minor’s parents primarily. The negligence of petitioner St.
Mary’s Academy was only a remote cause of the accident. Between the remote
cause and the injury, there intervened the negligence of the minor’s parents or
the detachment of the steering wheel guide of the jeep.
"The proximate cause of an injury is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred." 13
Considering that the negligence of the minor driver or the detachment of the
steering wheel guide of the jeep owned by respondent Villanueva was an event
over which petitioner St. Mary’s Academy had no control, and which was the
proximate cause of the accident, petitioner may not be held liable for the death
resulting from such accident.
Consequently, we find that petitioner likewise cannot be held liable for moral
damages in the amount of P500,000.00 awarded by the trial court and affirmed
by the Court of Appeals.
Though incapable of pecuniary computation, moral damages may be recovered
if they are the proximate result of the defendant’s wrongful act or omission. In 14 
this case, the proximate cause of the accident was not attributable to petitioner.
For the reason that petitioner was not directly liable for the accident, the decision
of the Court of Appeals ordering petitioner to pay death indemnity to respondent
Carpitanos must be deleted. Moreover, the grant of attorney’s fees as part of
damages is the exception rather than the rule. The power of the court to award
15 
attorney’s fees under Article 2208 of the Civil Code demands factual, legal and
equitable justification. Thus, the grant of attorney’s fees against the petitioner is
16 
likewise deleted.
Incidentally, there was no question that the registered owner of the vehicle was
respondent Villanueva. He never denied and in fact admitted this fact.  We have
1âwphi1
held that the registered owner of any vehicle, even if not used for public service,
would primarily be responsible to the public or to third persons for injuries
caused the latter while the vehicle was being driven on the highways or
streets." Hence, with the overwhelming evidence presented by petitioner and
17 
the respondent Daniel spouses that the accident occurred because of the
detachment of the steering wheel guide of the jeep, it is not the school, but the
registered owner of the vehicle who shall be held responsible for damages for
the death of Sherwin Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the
Court of Appeals and that of the trial court. The Court remands the case to the
18  19 
trial court for determination of the liability of defendants, excluding petitioner St.
Mary’s Academy, Dipolog City.

PHILIPPINE RABBIT BUS LINES, INC. and FELIX
PANGALANGAN, plaintiffs-appellants,
vs.
PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and
FERNANDO PINEDA, defendants-appellees.
Angel A. Sison for plaintiffs-appellants.
Fidel Zosimo U. Canilao for defendants-appellees.
AQUINO, J.: ñé+.£ªwph!1
Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure
questions of law from the order of the Court of First Instance of Tarlac,
dismissing their complaint against Archimedes J. Balingit.
The dismissal was based on the ground that Balingit as the manager of Phil-
American Forwarders, Inc., which together with Fernando Pineda and Balingit,
was sued for damages in an action based on quasi-delict or culpa aquiliana, is
not the manager of an establishment contemplated in article 2180 of the Civil
Code (Civil Case No. 3865).
In the complaint for damages filed by the bus company and Pangalangan
against Phil-American Forwarders, Inc., Balingit and Pineda, it was alleged that
on November 24, 1962, Pineda drove recklessly a freight truck, owned by Phil-
American Forwarders, Inc., along the national highway at Sto. Tomas,
Pampanga. The truck bumped the bus driven by Pangalangan, which was
owned by Philippine Rabbit Bus Lines, Inc. As a result of the bumping,
Pangalangan suffered injuries and the bus was damaged and could not be used
for seventy-nine days, thus depriving the company of earnings amounting to
P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc.
Among the defenses interposed by the defendants in their answer was that
Balingit was not Pineda's employer.
Balingit moved that the complaint against him be dismissed on the ground that
the bus company and the bus driver had no cause of action against him. As
already stated, the lower court dismissed the action as to Balingit. The bus
company and its driver appealed.
The Civil Code provides:
têñ.£îhqwâ£
ART. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
ART. 2180. The obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family
to prevent damage. (1903a)
The novel and unprecedented legal issue in this appeal is whether the terms
"employers" and "owners and managers of an establishment or enterprise"
(dueños o directores de un establicimiento o empresa) used in article 2180 of
the Civil Code, formerly article 1903 of the old Code, embrace the manager of a
corporation owning a truck, the reckless operation of which allegedly resulted in
the vehicular accident from which the damage arose.
incorporators, namely, Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay
paid P250.25 and P25, respectively.
That argument implies that the veil of corporate fiction should be pierced and
that Phil-American Forwarders, Inc. and Balingit and his wife should be treated
as one and the same civil personality.
We cannot countenance that argument in this appeal. It was not raised in the
lower court. The case has to be decided on the basis of the pleadings filed in the
trial court where it was assumed that Phil-American Forwarders, Inc. has a
personality separate and distinct from that of the Balingit spouses.
The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is one
which was raised in the lower court and which is within the issues framed by the
parties (Sec. 18, Rule 46, Rules of Court).
When a party deliberately adopts a certain theory and the case is decided upon
that theory in the court below, he will not be permitted to change his theory on
appeal because, to permit him to do so, could be unfair to the adverse party (2
Moran's Comments on the Rules of Court, 1970 Ed. p. 505).

We are of the opinion that those terms do not include the manager of a WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the
corporation. It may be gathered from the context of article 2180 that the term plaintiffs-appellants.
"manager" ("director" in the Spanish version) is used in the sense of "employer".
SO ORDERED.
Hence, under the allegations of the complaint, no tortious or quasi-delictual
liability can be fastened on Balingit as manager of Phil-American Forwarders,
Inc., in connection with the vehicular accident already mentioned because he
himself may be regarded as an employee or dependiente of his employer, Phil-
American Forwarders, Inc.

Thus, it was held "que es dependiente, a los efectos de la responsabilidad

subsidiaria establecida en el num 3.0 del (art.) 1903, el director de un periodico explotado por una
sociedad, porque cualquiera que sea su jerarquia y aunque Ileve la direccion de determinadas convicciones
politicas no por eso deja de estar subordinado a la superior autoridad de la Empresa" (Decision of Spanish
Supreme Court dated December 6, 1912 cited in 12 Manresa, Codigo Civil Español 5th Ed. 662; 1913
Enciclopedia Juridica Española 992).

The bus company and its driver, in their appellants' brief, injected a new factual
issue which was not alleged in their complaint. They argue that Phil- American
Forwarders, Inc. is merely a business conduit of Balingit because out of its
capital stock with a par value of P41,200, Balingit and his wife had subscribed
P40,000 and they paid P10,000 on their subscription, while the other
 The antecedents, as succinctly summarized by the Court of Appeals, are as follows:

On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was
driving a Honda motorcycle around Fuente Osmeña Rotunda. He was traveling counter-
clockwise, (the normal flow of traffic in a rotunda) but without any protective helmet or
goggles. He was also only carrying a Student's Permit to Drive at the time. Upon the
other hand, Benjamin Abad [was a] manager of Appellant Castilex Industrial Corporation,
registered owner [of] a Toyota Hi-Lux Pick-up with plate no. GBW-794. On the same
date and time, Abad drove the said company car out of a parking lot but instead of going
around the Osmeña rotunda he made a short cut against [the] flow of the traffic in
proceeding to his route to General Maxilom St. or to Belvic St.

In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each
other causing severe injuries to the former. Abad stopped his vehicle and brought
Vasquez to the Southern Islands Hospital and later to the Cebu Doctor's Hospital.

On September 5, 1988, Vasquez died at the Cebu Doctor's Hospital. It was there that
Abad signed an acknowledgment of Responsible Party (Exhibit K) wherein he agreed to
pay whatever hospital bills, professional fees and other incidental charges Vasquez may
incur.

After the police authorities had conducted the investigation of the accident, a Criminal
Case was filed against Abad but which was subsequently dismissed for failure to
prosecute. So, the present action for damages was commenced by Vicente Vasquez, Jr.
and Luisa So Vasquez, parents of the deceased Romeo So Vasquez, against Jose
Benjamin Abad and Castilex Industrial Corporation. In the same action, Cebu Doctor's
Hospital intervened to collect unpaid balance for the medical expense given to Romeo
So Vasquez.1

The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and
ordered Jose Benjamin Abad (hereafter ABAD) and petitioner Castilex Industrial
Corporation (hereafter CASTILEX) to pay jointly and solidarily (1) Spouses Vasquez, the
amounts of P8,000.00 for burial expenses; P50,000.00 as moral damages; P10,000.00
CASTILEX INDUSTRIAL CORPORATION, petitioner, as attorney's fees; and P778,752.00 for loss of earning capacity; and (2) Cebu Doctor's
vs. Hospital, the sum of P50,927.83 for unpaid medical and hospital bills at 3% monthly
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS' interest from 27 July 1989 until fully paid, plus the costs of litigation.2
HOSPITAL, INC., respondents.
CASTILEX and ABAD separately appealed the decision.
 
In its decision3 of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court
DAVIDE, JR., C.J.: holding ABAD and CASTILEX liable but held that the liability of the latter is "only
vicarious and not solidary" with the former. It reduced the award of damages
representing loss of earning capacity from P778,752.00 to P214,156.80; and the interest
The pivotal issue in this petition is whether an employer may be held vicariously liable for
on the hospital and medical bills, from 3% per month to 12% per annum from 5
the death resulting from the negligent operation by a managerial employee of a
September 1988 until fully paid.
company-issued vehicle.
Upon CASTILEX's motion for reconsideration, the Court of Appeals modified its decision
by (1) reducing the award of moral damages from P50,000 to P30,000 in view of the
deceased's contributory negligence; (b) deleting the award of attorney's fees for lack of
evidence; and (c) reducing the interest on hospital and medical bills to 6% per
annum from 5 September 1988 until fully paid.4
Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in
(1) applying to the case the fifth paragraph of Article 2180 of the Civil Code, instead of
the fourth paragraph thereof; (2) that as a managerial employee, ABAD was deemed to
have been always acting within the scope of his assigned task even outside office hours
because he was using a vehicle issued to him by petitioner; and (3) ruling that petitioner
had the burden to prove that the employee was not acting within the scope of his
assigned task.
Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds
fast on the theory of negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue that their son's death was
caused by the negligence of petitioner's employee who was driving a vehicle issued by
petitioner and who was on his way home from overtime work for petitioner; and that
petitioner is thus liable for the resulting injury and subsequent death of their son on the
basis of the fifth paragraph of Article 2180. Even if the fourth paragraph of Article 2180
were applied, petitioner cannot escape liability therefor. They moreover argue that the
Court of Appeals erred in reducing the amount of compensatory damages when the
award made by the trial court was borne both by evidence adduced during the trial
regarding deceased's wages and by jurisprudence on life expectancy. Moreover, they
point out that the petition is procedurally not acceptable on the following grounds: (1)
lack of an explanation for serving the petition upon the Court of Appeals by registered
mail, as required under Section 11, Rule 13 of the Rules of Civil Procedure; and (2) lack
of a statement of the dates of the expiration of the original reglementary period and of
the filing of the motion for extension of time to file a petition for review.
For its part, respondent Cebu Doctor's Hospital maintains that petitioner CASTILEX is
indeed vicariously liable for the injuries and subsequent death of Romeo Vasquez
caused by ABAD, who was on his way home from taking snacks after doing overtime
work for petitioner. Although the incident occurred when ABAD was not working anymore
"the inescapable fact remains that said employee would not have been situated at such
time and place had he not been required by petitioner to do overtime work." Moreover,
since petitioner adopted the evidence adduced by ABAD, it cannot, as the latter's
employer, inveigle itself from the ambit of liability, and is thus estopped by the records of
the case, which it failed to refute.
We shall first address the issue raised by the private respondents regarding some
alleged procedural lapses in the petition.
Private respondent's contention of petitioner's violation of Section 11 of Rule 13 and
Section 4 of Rule 45 of the 1997 Rules of Civil Procedure holds no water.
Sec. 11 of Rule 13 provides:
Sec. 11. Priorities in modes of services and filing. — Whenever practicable, the service
and filing of pleadings and other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes must be accompanied by a
written explanation why the service or filing was not done personally. A violation of this
Rule may be cause to consider the paper as not filed.
The explanation why service of a copy of the petition upon the Court of Appeals was
done by registered mail is found on Page 28 of the petition. Thus, there has been
compliance with the aforequoted provision.
As regards the allegation of violation of the material data rule under Section 4 of Rule 45,
the same is unfounded. The material dates required to be stated in the petition are the
following: (1) the date of receipt of the judgment or final order or resolution subject of the
petition; (2) the date of filing of a motion for new trial or reconsideration, if any; and (3)
the date of receipt of the notice of the denial of the motion. Contrary to private
respondent's claim, the petition need not indicate the dates of the expiration of the
original reglementary period and the filing of a motion for extension of time to file the
petition. At any rate, aside from the material dates required under Section 4 of Rule 45,
petitioner CASTILEX also stated in the first page of the petition the date it filed the
motion for extension of time to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes
said negligence but claims that it is not vicariously liable for the injuries and subsequent
death caused by ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only
apply to instances where the employer is not engaged in business or industry. Since it is
engaged in the business of manufacturing and selling furniture it is therefore not covered
by said provision. Instead, the fourth paragraph should apply.
Petitioner's interpretation of the fifth paragraph is not accurate. The phrase "even though
the former are not engaged in any business or industry" found in the fifth paragraph
should be interpreted to mean that it is not necessary for the employer to be engaged in
any business or industry to be liable for the negligence of his employee who is acting
within the scope of his assigned task.5
A distinction must be made between the two provisions to determine what is applicable.
Both provisions apply to employers: the fourth paragraph, to owners and managers of an
establishment or enterprise; and the fifth paragraph, to employers in general, whether or
not engaged in any business or industry. The fourth paragraph covers negligent acts of
employees committed either in the service of the branches or on the occasion of their
functions, while the fifth paragraph encompasses negligent acts of employees acting
within the scope of their assigned task. The latter is an expansion of the former in both
employer coverage and acts included. Negligent acts of employees, whether or not the
employer is engaged in a business or industry, are covered so long as they were acting
within the scope of their assigned task, even though committed neither in the service of
the branches nor on the occasion of their functions. For, admittedly, employees
oftentimes wear different hats. They perform functions which are beyond their office, title
or designation but which, nevertheless, are still within the call of duty.
This court has applied the fifth paragraph to cases where the employer was engaged in a
business or industry such as truck operators 6 and banks.7 The Court of Appeals cannot,
therefore, be faulted in applying the said paragraph of Article 2180 of the Civil Code to
this case.
Under the fifth paragraph of Article 2180, whether or not engaged in any business or
industry, an employer is liable for the torts committed by employees within the scope of
his assigned tasks. But it is necessary to establish the employer-employee relationship;
once this is done, the plaintiff must show, to hold the employer liable, that the employee
was acting within the scope of his assigned task when the tort complained of was
committed. It is only then that the employer may find it necessary to interpose the
defense of due diligence in the selection and supervision of the employee.8
It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the
time of the tort occurrence. As to whether he was acting within the scope of his assigned
task is a question of fact, which the court a quo and the Court of Appeals resolved in the
affirmative.
Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of
Appeals are entitled to great respect, and even finality at times. This rule is, however,
subject to exceptions such as when the conclusion is grounded on speculations,
surmises, or conjectures.9 Such exception obtain in the present case to warrant review
by this Court of the finding of the Court of Appeals that since ABAD was driving
petitioner's vehicle he was acting within the scope of his duties as a manager.
Before we pass upon the issue of whether ABAD was performing acts within the range of
his employment, we shall first take up the other reason invoked by the Court of Appeals
in holding petitioner CASTILEX vicariously liable for ABAD's negligence, i.e., that the
petitioner did not present evidence that ABAD was not acting within the scope of his
assigned tasks at the time of the motor vehicle mishap. Contrary to the ruling of the
Court of Appeals, it was not incumbent upon the petitioner to prove the same. It was
enough for petitioner CASTILEX to deny that ABAD was acting within the scope of his
duties; petitioner was not under obligation to prove this negative averment. Ei incumbit
probatio qui dicit, non qui negat (He who asserts, not he who denies, must prove). The
Court has consistently applied the ancient rule that if the plaintiff, upon whom rests the
burden of proving his cause of action, fails to show in a satisfactory manner facts which
he bases his claim, the defendant is under no obligation to prove his exception or
defense. 10
Now on the issue of whether the private respondents have sufficiently established that
ABAD was acting within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness, testified that at the time of the incident,
he was driving a company-issued vehicle, registered under the name of petitioner. He
was then leaving the restaurant where he had some snacks and had a chat with his
friends after having done overtime work for the petitioner.
No absolutely hard and fast rule can be stated which will furnish the complete answer to
the problem of whether at a given moment, an employee is engaged in his employer's
business in the operation of a motor vehicle, so as to fix liability upon the employer
because of the employee's action or inaction; but rather, the result varies with each state
of facts. 11
In Filamer Christian Institute v. Intermediate Appellant Court, 12 this Court had the
occasion to hold that acts done within the scope of the employee's assigned tasks
includes "any act done by an employee in furtherance of the interests of the employer or
for the account of the employer at the time of the infliction of the injury or damages."
The court a quo and the Court of Appeals were one in holding that the driving by a
manager of a company-issued vehicle is within the scope of his assigned tasks
regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at the time of the
injurious incident is not of itself sufficient to charge petitioner with liability for the
negligent operation of said vehicle unless it appears that he was operating the vehicle
within the course or scope of his employment.
The following are principles in American Jurisprudence on the employer's liability for the
injuries inflicted by the negligence of an employee in the use of an employer's motor
vehicle:
I. Operation of Employer's Motor Vehicle in Going to
or from Meals
It has been held that an employee who uses his employer's vehicle in going from his
work to a place where he intends to eat or in returning to work from a meal is not
ordinarily acting within the scope of his employment in the absence of evidence of some
special business benefit to the employer. Evidence that by using the employer's vehicle
to go to and from meals, an employee is enabled to reduce his time-off and so devote
more time to the performance of his duties supports the finding that an employee is
acting within the scope of his employment while so driving the vehicle. 13
II. Operation of Employer's Vehicle in Going to
or from Work
In the same vein, traveling to and from the place of work is ordinarily a personal problem
or concern of the employee, and not a part of his services to his employer. Hence, in the
absence of some special benefit to the employer other than the mere performance of the
services available at the place where he is needed, the employee is not acting within the
scope of his employment even though he uses his employer's motor vehicle. 14
The employer may, however, be liable where he derives some special benefit from
having the employee drive home in the employer's vehicle as when the employer
benefits from having the employee at work earlier and, presumably, spending more time
at his actual duties. Where the employee's duties require him to circulate in a general
area with no fixed place or hours of work, or to go to and from his home to various
outside places of work, and his employer furnishes him with a vehicle to use in his work,
the courts have frequently applied what has been called the "special errand" or "roving
commission" rule, under which it can be found that the employee continues in the service
of his employer until he actually reaches home. However, even if the employee be
deemed to be acting within the scope of his employment in going to or from work in his
employer's vehicle, the employer is not liable for his negligence where at the time of the
accident, the employee has left the direct route to his work or back home and is pursuing
a personal errand of his own.
III. Use of Employer's Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an employee for the latter's personal use
outside of regular working hours is generally not liable for the employee's negligent
operation of the vehicle during the period of permissive use, even where the employer
contemplates that a regularly assigned motor vehicle will be used by the employee for
personal as well as business purposes and there is some incidental benefit to the
employer. Even where the employee's personal purpose in using the vehicle has been
accomplished and he has started the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed his employment, and the
employer is not liable for the employee's negligent operation of the vehicle during the
return trip. 15
The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based
on the doctrine of respondent superior, not on the principle of bonus pater familias as in
ours. Whether the fault or negligence of the employee is conclusive on his employer as
in American law or jurisprudence, or merely gives rise to the presumption juris tantum of
negligence on the part of the employer as in ours, it is indispensable that the employee
was acting in his employer's business or within the scope of his assigned task. 16
In the case at bar, it is undisputed that ABAD did some overtime work at the petitioner's
office, which was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldie's
Restaurant in Fuente Osmeña, Cebu City, which is about seven kilometers away from
petitioner's place of business. 17 A witness for the private respondents, a sidewalk
vendor, testified that Fuente Osmeña is a "lively place" even at dawn because Goldie's
Restaurant and Back Street were still open and people were drinking thereat. Moreover,
prostitutes, pimps, and drug addicts littered the place. 18
At the Goldie's Restaurant, ABAD took some snacks and had a chat with friends. It was
when ABAD was leaving the restaurant that the incident in question occurred. That same
witness for the private respondents testified that at the time of the vehicular accident,
ABAD was with a woman in his car, who then shouted: "Daddy, Daddy!" 19 This woman
could not have been ABAD's daughter, for ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a
personal purpose not in line with his duties at the time he figured in a vehicular accident.
It was then about 2:00 a.m. of 28 August 1988, way beyond the normal working hours.
ABAD's working day had ended; his overtime work had already been completed. His
being at a place which, as petitioner put it, was known as a "haven for prostitutes, pimps,
and drug pushers and addicts," had no connection to petitioner's business; neither had it
any relation to his duties as a manager. Rather, using his service vehicle even for
personal purposes was a form of a fringe benefit or one of the perks attached to his
position.
Since there is paucity of evidence that ABAD was acting within the scope of the functions
entrusted to him, petitioner CASTILEX had no duty to show that it exercised the diligence
of a good father of a family in providing ABAD with a service vehicle. Thus, justice and
equity require that petitioner be relieved of vicarious liability for the consequences of the
negligence of ABAD in driving its vehicle. 20
WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of
the Court of Appeals is AFFIRMED with the modification that petitioner Castilex Industrial
Corporation be absolved of any liability for the damages caused by its employee, Jose
Benjamin Abad.
SO ORDERED.
 The case before the Court is an appeal from the decision and resolution of the
Court of Appeals, promulgated on 27 April 2000 and 10 October 2000,
respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and Heirs of
the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has modified the
decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from liability and finding Light
Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on account
of the death of Nicanor Navidad.

On 14 October 1993, about half an hour past seven o’clock in the evening,
Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a
"token" (representing payment of the fare). While Navidad was standing on the
platform near the LRT tracks, Junelito Escartin, the security guard assigned to
the area approached Navidad. A misunderstanding or an altercation between
the two apparently ensued that led to a fist fight. No evidence, however, was
adduced to indicate how the fight started or who, between the two, delivered the
first blow or how Navidad later fell on the LRT tracks. At the exact moment that
Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming
in. Navidad was struck by the moving train, and he was killed instantaneously.

On 08 December 1994, the widow of Nicanor, herein respondent Marjorie

Navidad, along with her children, filed a complaint for damages against Junelito
Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro
Transit), and Prudent for the death of her husband. LRTA and Roman filed a
counterclaim against Navidad and a cross-claim against Escartin and Prudent.
Prudent, in its answer, denied liability and averred that it had exercised due
diligence in the selection and supervision of its security guards.

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT
SECURITY AGENCY, respondents.
The LRTA and Roman presented their evidence while Prudent and Escartin,
instead of presenting evidence, filed a demurrer contending that Navidad had
failed to prove that Escartin was negligent in his assigned task. On 11 August
1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendants Prudent Security and Junelito Escartin ordering the latter
to pay jointly and severally the plaintiffs the following:

DECISION "a) 1) Actual damages of P44,830.00;

VITUG, J.: 2) Compensatory damages of P443,520.00;

3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;

"b) Moral damages of P50,000.00;
"c) Attorney’s fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for
lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed." 1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate
court promulgated its now assailed decision exonerating Prudent from any
liability for the death of Nicanor Navidad and, instead, holding the LRTA and
Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the
appellants from any liability for the death of Nicanor Navidad, Jr. Instead,
appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held
liable for his death and are hereby directed to pay jointly and severally to the
plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorney’s fees." 2 sweeping conclusion that the presumption of negligence on the part of a
The appellate court ratiocinated that while the deceased might not have then as
yet boarded the train, a contract of carriage theretofore had already existed
when the victim entered the place where passengers were supposed to be after
paying the fare and getting the corresponding token therefor. In exempting
Prudent from liability, the court stressed that there was nothing to link the
security agency to the death of Navidad. It said that Navidad failed to show that
Escartin inflicted fist blows upon the victim and the evidence merely established
the fact of death of Navidad by reason of his having been hit by the train owned
and managed by the LRTA and operated at the time by Roman. The appellate
court faulted petitioners for their failure to present expert evidence to establish
the fact that the application of emergency brakes could not have stopped the
train.
The appellate court denied petitioners’ motion for reconsideration in its
resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the
appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
BY DISREGARDING THE FINDINGS OF FACTS BY THE
TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
IN FINDING THAT PETITIONERS ARE LIABLE FOR THE
DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
IN FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF
LRTA." 3
Petitioners would contend that the appellate court ignored the evidence and the
factual findings of the trial court by holding them liable on the basis of a
common carrier was not overcome. Petitioners would insist that Escartin’s
assault upon Navidad, which caused the latter to fall on the tracks, was an act of
a stranger that could not have been foreseen or prevented. The LRTA would
add that the appellate court’s conclusion on the existence of an employer-
employee relationship between Roman and LRTA lacked basis because Roman
himself had testified being an employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a
contract of carriage was deemed created from the moment Navidad paid the
fare at the LRT station and entered the premises of the latter, entitling Navidad
to all the rights and protection under a contractual relation, and that the
appellate court had correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence imposed upon a common
carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its
business and for reasons of public policy, is burdened with the duty of exercising
utmost diligence in ensuring the safety of passengers. The Civil Code,
4  majeure. In the absence of satisfactory explanation by the carrier on how the
governing the liability of a common carrier for death of or injury to its
passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed in articles 1733 and
1755."
"Article 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former’s employees,
although such employees may have acted beyond the scope of their authority or
in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other passengers or of
strangers, if the common carrier’s employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act or
omission."
The law requires common carriers to carry passengers safely using the utmost
diligence of very cautious persons with due regard for all circumstances. Such
5 
duty of a common carrier to provide safety to its passengers so obligates it not
only during the course of the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to the contract of carriage. 6 
The statutory provisions render a common carrier liable for death of or injury to
passengers (a) through the negligence or wilful acts of its employees or b) on
account of wilful acts or negligence of other passengers or of strangers if the
common carrier’s employees through the exercise of due diligence could have
prevented or stopped the act or omission. In case of such death or injury, a
7 
carrier is presumed to have been at fault or been negligent, and by simple proof
8 
of injury, the passenger is relieved of the duty to still establish the fault or
negligence of the carrier or of its employees and the burden shifts upon the
carrier to prove that the injury is due to an unforeseen event or to force
9 
accident occurred, which petitioners, according to the appellate court, have
failed to show, the presumption would be that it has been at fault, an exception
10 
from the general rule that negligence must be proved. 11
The foundation of LRTA’s liability is the contract of carriage and its obligation to
indemnify the victim arises from the breach of that contract by reason of its
failure to exercise the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety of passengers, a carrier may
choose to hire its own employees or avail itself of the services of an outsider or
an independent firm to undertake the task. In either case, the common carrier is
not relieved of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for
tort under the provisions of Article 2176 and related provisions, in conjunction
12 
with Article 2180, of the Civil Code. The premise, however, for the employer’s
13 
liability is negligence or fault on the part of the employee. Once such fault is
established, the employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to exercise diligentissimi patris
families in the selection and supervision of its employees. The liability is primary
and can only be negated by showing due diligence in the selection and
supervision of the employee, a factual matter that has not been shown. Absent
such a showing, one might ask further, how then must the liability of the
common carrier, on the one hand, and an independent contractor, on the other
hand, be described? It would be solidary. A contractual obligation can be
breached by tort and when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa aquiliana, Article 2194 of14 
the Civil Code can well apply. In fine, a liability for tort may arise even under a
15 
contract, where tort is that which breaches the contract. Stated differently, when
16 
an act which constitutes a breach of contract would have itself constituted the
source of a quasi-delictual liability had no contract existed between the parties,
the contract can be said to have been breached by tort, thereby allowing the
rules on tort to apply. 17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the
late Nicanor Navidad, this Court is concluded by the factual finding of the Court
of Appeals that "there is nothing to link (Prudent) to the death of Nicanor
(Navidad), for the reason that the negligence of its employee, Escartin, has not
been duly proven x x x." This finding of the appellate court is not without
substantial justification in our own review of the records of the case.

There being, similarly, no showing that petitioner Rodolfo Roman himself is

guilty of any culpable act or omission, he must also be absolved from liability.
Needless to say, the contractual tie between the LRT and Navidad is not itself a
juridical relation between the latter and Roman; thus, Roman can be made liable
only for his own fault or negligence.

The award of nominal damages in addition to actual damages is untenable.

Nominal damages are adjudicated in order that a right of the plaintiff, which has
been violated or invaded by the defendant, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any loss suffered by
him. It is an established rule that nominal damages cannot co-exist with
18 

compensatory damages. 19

WHEREFORE, the assailed decision of the appellate court is AFFIRMED with

MODIFICATION but only in that (a) the award of nominal damages is DELETED
and (b) petitioner Rodolfo Roman is absolved from liability. No costs.

MA. LOURDES VALENZUELA, petitioner,
vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL,
INC., respondents.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x
G.R. No. 117944             February 7, 1996
RICHARD LI, petitioner,
vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.
DECISION
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules
of Court stem from an action to recover damages by petitioner Lourdes
Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by
her in a vehicular accident in the early morning of June 24, 1990. The facts
found by the trial court are succinctly summarized by the Court of Appeals
below:
This is an action to recover damages based on quasi-delict, for serious physical
injuries sustained in a vehicular accident.
Plaintiff's version of the accident is as follows: At around 2:00 in the morning of
June 24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi
lancer with Plate No. FFU 542 from her restaurant at Marcos highway to her
home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd.
with a companion, Cecilia Ramon, heading towards the direction of Manila.
Before reaching A. Lake Street, she noticed something wrong with her tires; she
stopped at a lighted place where there were people, to verify whether she had a
flat tire and to solicit help if needed. Having been told by the people present that
her rear right tire was flat and that she cannot reach her home in that car's
condition, she parked along the sidewalk, about 1-1/2 feet away, put on her
emergency lights, alighted from the car, and went to the rear to open the trunk.
She was standing at the left side of the rear of her car pointing to the tools to a
man who will help her fix the tire when she was suddenly bumped by a 1987
Mitsubishi Lancer driven by defendant Richard Li and registered in the name of
defendant Alexander Commercial, Inc. Because of the impact plaintiff was
thrown against the windshield of the car of the defendant, which was destroyed,
and then fell to the ground. She was pulled out from under defendant's car.
Plaintiff's left leg was severed up to the middle of her thigh, with only some skin
and sucle connected to the rest of the body. She was brought to the UERM
Medical Memorial Center where she was found to have a "traumatic amputation,
leg, left up to distal thigh (above knee)". She was confined in the hospital for
twenty (20) days and was eventually fitted with an artificial leg. The expenses for
the hospital confinement (P120,000.00) and the cost of the artificial leg
(P27,000.00) were paid by defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million,
exemplary damages in the amount of P100,000.00 and other medical and
related expenses amounting to a total of P180,000.00, including loss of
expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home,
travelling at 55 kph; considering that it was raining, visibility was affected and the
road was wet. Traffic was light. He testified that he was driving along the inner
portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue,
when he was suddenly confronted, in the vicinity of A. Lake Street, San Juan,
with a car coming from the opposite direction, travelling at 80 kph, with "full
bright lights". Temporarily blinded, he instinctively swerved to the right to avoid
colliding with the oncoming vehicle, and bumped plaintiff's car, which he did not
see because it was midnight blue in color, with no parking lights or early warning
device, and the area was poorly lighted. He alleged in his defense that the left
rear portion of plaintiff's car was protruding as it was then "at a standstill
diagonally" on the outer portion of the right lane towards Araneta Avenue (par.
18, Answer). He confirmed the testimony of plaintiff's witness that after being
bumped the car of the plaintiff swerved to the right and hit another car parked on
the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was
reckless or negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident
report and the sketch of the three cars involved in the accident, testified that the
plaintiff's car was "near the sidewalk"; this witness did not remember whether
the hazard lights of plaintiff's car were on, and did not notice if there was an
early warning device; there was a street light at the corner of Aurora Blvd. and F.
Roman, about 100 meters away. It was not mostly dark, i.e. "things can be
seen" (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted
from her car and opened the trunk compartment, defendant's car came
approaching very fast ten meters from the scene; the car was "zigzagging". The
rear left side of plaintiff's car was bumped by the front right portion of
defendant's car; as a consequence, the plaintiff's car swerved to the right and hit
the parked car on the sidewalk. Plaintiff was thrown to the windshield of
defendant's car, which was destroyed, and landed under the car. He stated that
defendant was under the influence of liquor as he could "smell it very well" (pp.
43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff's submissions and found
defendant Richard Li guilty of gross negligence and liable for damages under
Article 2176 of the Civil Code. The trial court likewise held Alexander
Commercial, Inc., Li's employer, jointly and severally liable for damages
pursuant to Article 2180. It ordered the defendants to jointly and severally pay
the following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of
the plaintiff as a result of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the
stoppage of plaintiff's Bistro La Conga restaurant three (3) weeks after the
accident on June 24, 1990; (b) P20,000.00, a month, as unrealized profits of the
plaintiff in her Bistro La Conga restaurant, from August, 1990 until the date of
this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two
(2) beauty salons from July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages;
5. P60,000.00, as reasonable attorney's fees; and
6. Costs.
As a result of the trial court's decision, defendants filed an Omnibus Motion for
New Trial and for Reconsideration, citing testimony in Criminal Case O.C. No.
804367 (People vs. Richard Li), tending to show that the point of impact, as
depicted by the pieces of glass/debris from the parties' cars, appeared to be at
the center of the right lane of Aurora Blvd. The trial court denied the motion.
Defendants forthwith filed an appeal with the respondent Court of Appeals. In a
Decision rendered March 30, 1994, the Court of Appeals found that there was
"ample basis from the evidence of record for the trial court's finding that the
plaintiff's car was properly parked at the right, beside the sidewalk when it was
bumped by defendant's car." Dismissing the defendants' argument that the
1 
plaintiff's car was improperly parked, almost at the center of the road, the
respondent court noted that evidence which was supposed to prove that the car
was at or near center of the right lane was never presented during the trial of the
case. The respondent court furthermore observed that:
2 
Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is
self serving; it was not corroborated. It was in fact contradicted by eyewitness
Rodriguez who stated that he was outside his beerhouse located at Aurora
Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1990 when his
attention was caught by a beautiful lady (referring to the plaintiff) alighting from
her car and opening the trunk compartment; he noticed the car of Richard Li
"approaching very fast ten (10) meters away from the scene"; defendant's car
was zigzagging", although there were no holes and hazards on the street, and
"bumped the leg of the plaintiff" who was thrown against the windshield of
defendant's care, causing its destruction. He came to the rescue of the plaintiff,
who was pulled out from under defendant's car and was able to say "hurting
words" to Richard Li because he noticed that the latter was under the influence
of liquor, because he "could smell it very well" (p. 36, et. seq., tsn, June 17,
1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970's, but
did not know either plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries
sustained by the plaintiff, the Court of Appeals, in its decision, however,
absolved the Li's employer, Alexander Commercial, Inc. from any liability
towards petitioner Lourdes Valenzuela and reduced the amount of moral
damages to P500,000.00. Finding justification for exemplary damages, the
respondent court allowed an award of P50,000.00 for the same, in addition to
costs, attorney's fees and the other damages. The Court of Appeals, likewise,
dismissed the defendants' counterclaims. 3
Consequently, both parties assail the respondent court's decision by filing two
separate petitions before this Court. Richard Li, in G.R. No. 117944, contends
that he should not be held liable for damages because the proximate cause of
the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he
argues that in the event that this Court finds him negligent, such negligence
ought to be mitigated by the contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the
respondent court's decision insofar as it absolves Alexander Commercial, Inc.
from liability as the owner of the car driven by Richard Li and insofar as it
reduces the amount of the actual and moral damages awarded by the trial
court.
4
As the issues are intimately related, both petitions are hereby consolidated.
It is plainly evident that the petition for review in G.R. No. 117944 raises no
substantial questions of law. What it, in effect, attempts to have this Court review
are factual findings of the trial court, as sustained by the Court of Appeals
finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by
his company in the early morning hours of June 24, 1990. This we will not do. As
a general rule, findings of fact of the Court of Appeals are binding and
conclusive upon us, and this Court will not normally disturb such factual findings
unless the findings of fact of the said court are palpably unsupported by the
evidence on record or unless the judgment itself is based on a misapprehension
of facts.5
In the first place, Valenzuela's version of the incident was fully corroborated by
an uninterested witness, Rogelio Rodriguez, the owner-operator of an
establishment located just across the scene of the accident. On trial, he testified
that he observed a car being driven at a "very fast" speed, racing towards the
general direction of Araneta Avenue. Rodriguez further added that he was
6 
standing in front of his establishment, just ten to twenty feet away from the
scene of the accident, when he saw the car hit Valenzuela, hurtling her against
the windshield of the defendant's Mitsubishi Lancer, from where she eventually
fell under the defendant's car. Spontaneously reacting to the incident, he
crossed the street, noting that a man reeking with the smell of liquor had
alighted from the offending vehicle in order to survey the incident. Equally
7 
important, Rodriguez declared that he observed Valenzuela's car parked parallel
and very near the sidewalk, contrary to Li's allegation that Valenzuela's car was
8 
close to the center of the right lane. We agree that as between Li's "self-serving"
asseverations and the observations of a witness who did not even know the
accident victim personally and who immediately gave a statement of the incident
similar to his testimony to the investigator immediately after the incident, the
latter's testimony deserves greater weight. As the court emphasized:
The issue is one of credibility and from Our own examination of the transcript,
We are not prepared to set aside the trial court's reliance on the testimony of
Rodriguez negating defendant's assertion that he was driving at a safe speed.
While Rodriguez drives only a motorcycle, his perception of speed is not
necessarily impaired. He was subjected to cross-examination and no attempt
was made to question .his competence or the accuracy of his statement that
defendant was driving "very fast". This was the same statement he gave to the
police investigator after the incident, as told to a newspaper report (Exh. "P").
We see no compelling basis for disregarding his testimony.
The alleged inconsistencies in Rodriguez' testimony are not borne out by an
examination of the testimony. Rodriguez testified that the scene of the accident
was across the street where his beerhouse is located about ten to twenty feet
away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident
transpired immediately in front of his establishment. The ownership of the
Lambingan se Kambingan is not material; the business is registered in the name
of his mother, but he explained that he owns the establishment (p. 5, tsn, June
20, 1991). Moreover, the testimony that the streetlights on his side of Aurora
Boulevard were on the night the accident transpired (p. 8) is not necessarily
contradictory to the testimony of Pfc. Ramos that there was a streetlight at the
corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a
drizzle, not a heavy rain and the rain has stopped and he was outside his
establishment at the time the accident transpired (pp. 64-65, tsn, June 17,
1991). This was consistent with plaintiff's testimony that it was no longer raining
when she left Bistro La Conga (pp. 10-11, tsn, April 29, 1991). It was defendant
Li who stated that it was raining all the way in an attempt to explain why he was
travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of
Pfc. Ramos that it was raining, he arrived at the scene only in response to a
telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991).
We find no substantial inconsistencies in Rodriguez's testimony that would
impair the essential integrity of his testimony or reflect on his honesty. We are
compelled to affirm the trial court's acceptance of the testimony of said
eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Li's
testimony was peppered with so many inconsistencies leading us to conclude
that his version of the accident was merely adroitly crafted to provide a version,
obviously self-serving, which would exculpate him from any and all liability in the
incident. Against Valenzuela's corroborated claims, his allegations were neither
backed up by other witnesses nor by the circumstances proven in the course of
trial. He claimed that he was driving merely at a speed of 55 kph. when "out of
nowhere he saw a dark maroon lancer right in front of him, which was (the)
plaintiff's car". He alleged that upon seeing this sudden "apparition" he put on
his brakes to no avail as the road was slippery.9
One will have to suspend disbelief in order to give credence to Li's disingenuous
and patently self-serving asseverations. The average motorist alert to road
conditions will have no difficulty applying the brakes to a car traveling at the
speed claimed by Li. Given a light rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li
would have had ample time to react to the changing conditions of the road if he
were alert - as every driver should be - to those conditions. Driving exacts a
more than usual toll on the senses. Physiological "fight or flight"  mechanisms
10 
are at work, provided such mechanisms were not dulled by drugs, alcohol,
exhaustion, drowsiness, etc. Li's failure to react in a manner which would have
11 
avoided the accident could therefore have been only due to either or both of the
two factors: 1) that he was driving at a "very fast" speed as testified by
Rodriguez; and 2) that he was under the influence of alcohol. Either factor
12 
working independently would have diminished his responsiveness to road
conditions, since normally he would have slowed down prior to reaching
Valenzuela's car, rather than be in a situation forcing him to suddenly apply his
brakes. As the trial court noted (quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police
immediately after the incident, he said that while driving along Aurora Blvd., out
of nowhere he saw a dark maroon lancer right in front of him which was
plaintiff's car, indicating, again, thereby that, indeed, he was driving very fast,
oblivious of his surroundings and the road ahead of him, because if he was not,
then he could not have missed noticing at a still far distance the parked car of
the plaintiff at the right side near the sidewalk which had its emergency lights on,
thereby avoiding forcefully bumping at the plaintiff who was then standing at the
left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on his
brakes when he saw the plaintiff's car in front of him, but that it failed as the road
was wet and slippery, this goes to show again, that, contrary to his claim, he
was, indeed, running very fast. For, were it otherwise, he could have easily
completely stopped his car, thereby avoiding the bumping of the plaintiff,
notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he
was running slow, as he claimed, at only about 55 kilometers per hour, then,
inspite of the wet and slippery road, he could have avoided hitting the plaintiff by
the mere expedient or applying his brakes at the proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which is
contrary to what he told the police immediately after the accident and is,
therefore, more believable, that he did not actually step on his brakes but simply
swerved a little to the right when he saw the on-coming car with glaring
headlights, from the opposite direction, in order to avoid it.
For, had this been what he did, he would not have bumped the car of the plaintiff
which was properly parked at the right beside the sidewalk. And, it was not even
necessary for him to swerve a little to the right in order to safely avoid a collision
with the on-coming car, considering that Aurora Blvd. is a double lane avenue
separated at the center by a dotted white paint, and there is plenty of space for
both cars, since her car was running at the right lane going towards Manila on
the on-coming car was also on its right lane going to Cubao. 13
Having come to the conclusion that Li was negligent in driving his company-
issued Mitsubishi Lancer, the next question for us to determine is whether or not
Valenzuela was likewise guilty of contributory negligence in parking her car
alongside Aurora Boulevard, which entire area Li points out, is a no parking
zone.
We agree with the respondent court that Valenzuela was not guilty of
contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing
as a legal cause to the harm he has suffered, which falls below the standard to
which he is required to conform for his own protection. Based on the foregoing
14  what was best under the situation. As narrated by respondent court: "She
definition, the standard or act to which, according to petitioner Li, Valenzuela
ought to have conformed for her own protection was not to park at all at any
point of Aurora Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is
confronted with an emergency is not to be held up to the standard of conduct
normally applied to an individual who is in no such situation. The law takes stock
of impulses of humanity when placed in threatening or dangerous situations and
does not require the same standard of thoughtful and reflective care from
persons confronted by unusual and oftentimes threatening conditions. 15
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,
an individual who suddenly finds himself in a situation of danger and is required
to act without much time to consider the best means that may be adopted to
avoid the impending danger, is not guilty of negligence if he fails to undertake
what subsequently and upon reflection may appear to be a better solution,
unless the emergency was brought by his own negligence. 17
Applying this principle to a case in which the victims in a vehicular accident
swerved to the wrong lane to avoid hitting two children suddenly darting into the
street, we held, in Mc Kee vs. Intermediate Appellate Court, that the driver
18 
therein, Jose Koh, "adopted the best means possible in the given situation" to
avoid hitting the children. Using the "emergency rule" the Court concluded that
Koh, in spite of the fact that he was in the wrong lane when the collision with an
oncoming truck occurred, was not guilty of negligence. 19
While the emergency rule applies to those cases in which reflective thought, or
the opportunity to adequately weigh a threatening situation is absent, the
conduct which is required of an individual in such cases is dictated not
exclusively by the suddenness of the event which absolutely negates
thoroughful care, but by the over-all nature of the circumstances. A woman
driving a vehicle suddenly crippled by a flat tire on a rainy night will not be
faulted for stopping at a point which is both convenient for her to do so and
which is not a hazard to other motorists. She is not expected to run the entire
boulevard in search for a parking zone or turn on a dark street or alley where
she would likely find no one to help her. It would be hazardous for her not to
stop and assess the emergency (simply because the entire length of Aurora
Boulevard is a no-parking zone) because the hobbling vehicle would be both a
threat to her safety and to other motorists. In the instant case, Valenzuela, upon
reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she
had a flat tire. To avoid putting herself and other motorists in danger, she did
stopped at a lighted place where there were people, to verify whether she had a
flat tire and to solicit help if needed. Having been told by the people present that
her rear right tire was flat and that she cannot reach her home she parked along
the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car." In fact, 20 
respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the
accident confirmed that Valenzuela's car was parked very close to the
sidewalk. The sketch which he prepared after the incident showed Valenzuela's
21 
car partly straddling the sidewalk, clear and at a convenient distance from
motorists passing the right lane of Aurora Boulevard. This fact was itself
corroborated by the testimony of witness Rodriguez. 22
Under the circumstances described, Valenzuela did exercise the standard
16 
reasonably dictated by the emergency and could not be considered to have
contributed to the unfortunate circumstances which eventually led to the
amputation of one of her lower extremities. The emergency which led her to park
her car on a sidewalk in Aurora Boulevard was not of her own making, and it
was evident that she had taken all reasonable precautions.
Obviously in the case at bench, the only negligence ascribable was the
negligence of Li on the night of the accident. "Negligence, as it is commonly
understood is conduct which creates an undue risk of harm to others." It is the
23 
failure to observe that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. We 24 
stressed, in Corliss vs. Manila Railroad Company, that negligence is the want of
25 
care required by the circumstances.
The circumstances established by the evidence adduced in the court below
plainly demonstrate that Li was grossly negligent in driving his Mitsubishi
Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M.
after a heavy downpour had settled into a drizzle rendering the street slippery.
There is ample testimonial evidence on record to show that he was under the
influence of liquor. Under these conditions, his chances of effectively dealing
with changing conditions on the road were significantly lessened. As Presser
and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be
prepared for the sudden appearance of obstacles and persons on the highway,
and of other vehicles at intersections, such as one who sees a child on the curb
may be required to anticipate its sudden dash into the street, and his failure to
act properly when they appear may be found to amount to negligence. 26
Li's obvious unpreparedness to cope with the situation confronting him on the
night of the accident was clearly of his own making.
We now come to the question of the liability of Alexander Commercial, Inc. Li's
employer. In denying liability on the part of Alexander Commercial, the
respondent court held that:
There is no evidence, not even defendant Li's testimony, that the visit was in
connection with official matters. His functions as assistant manager sometimes
required him to perform work outside the office as he has to visit buyers and
company clients, but he admitted that on the night of the accident he came from
BF Homes Paranaque he did not have "business from the company" (pp. 25-26,
ten, Sept. 23, 1991). The use of the company car was partly required by the
nature of his work, but the privilege of using it for non-official business is a
"benefit", apparently referring to the fringe benefits attaching to his position.
Under the civil law, an employer is liable for the negligence of his employees in
the discharge of their respective duties, the basis of which liability is
not respondeat superior, but the relationship of pater familias, which theory
bases the liability of the master ultimately on his own negligence and not on that
of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an
employer may be held liable for the negligence of his employee, the act or
omission which caused damage must have occurred while an employee was in
the actual performance of his assigned tasks or duties (Francis High School vs.
Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts
done within the scope of the employee's assigned tasks, the Supreme Court has
held that this includes any act done by an employee, in furtherance of the
interests of the employer or for the account of the employer at the time of the
infliction of the injury or damage (Filamer Christian Institute vs. Intermediate
Appellate Court, 212 SCRA 637). An employer is expected to impose upon its
employees the necessary discipline called for in the performance of any act
"indispensable to the business and beneficial to their employer" (at p. 645).
In light of the foregoing, We are unable to sustain the trial court's finding that
since defendant Li was authorized by the company to use the company car
"either officially or socially or even bring it home", he can be considered as using
the company car in the service of his employer or on the occasion of his
functions. Driving the company car was not among his functions as assistant
manager; using it for non-official purposes would appear to be a fringe benefit,
one of the perks attached to his position. But to impose liability upon the
employer under Article 2180 of the Civil Code, earlier quoted, there must be a
showing that the damage was caused by their employees in the service of the
employer or on the occasion of their functions. There is no evidence that
Richard Li was at the time of the accident performing any act in furtherance of
the company's business or its interests, or at least for its benefit. The imposition
of solidary liability against defendant Alexander Commercial Corporation must
therefore fail.
27
We agree with the respondent court that the relationship in question is not based
on the principle of respondeat superior, which holds the master liable for acts of
the servant, but that of pater familias, in which the liability ultimately falls upon
the employer, for his failure to exercise the diligence of a good father of the
family in the selection and supervision of his employees. It is up to this point,
however, that our agreement with the respondent court ends. Utilizing the bonus
pater familias standard expressed in Article 2180 of the Civil Code,  we are of
28 
the opinion that Li's employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals upon which
29 
respondent court has placed undue reliance, dealt with the subject of a school
and its teacher's supervision of students during an extracurricular activity. These
cases now fall under the provision on special parental authority found in Art. 218
of the Family Code which generally encompasses all authorized school
activities, whether inside or outside school premises.
Second, the employer's primary liability under the concept of pater
familias embodied by Art 2180 (in relation to Art. 2176) of the Civil Code is
quasi-delictual or tortious in character. His liability is relieved on a showing that
he exercised the diligence of a good father of the family in the selection and
supervision of its employees. Once evidence is introduced showing that the
employer exercised the required amount of care in selecting its employees, half
of the employer's burden is overcome. The question of diligent supervision,
however, depends on the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent
supervision of its employee during the performance of the latter's assigned tasks
would be enough to relieve him of the liability imposed by Article 2180 in relation
to Article 2176 of the Civil Code. The employer is not expected to exercise
supervision over either the employee's private activities or during the
performance of tasks either unsanctioned by the former or unrelated to the
employee's tasks. The case at bench presents a situation of a different
character, involving a practice utilized by large companies with either their
employees of managerial rank or their representatives.
It is customary for large companies to provide certain classes of their employees
with courtesy vehicles. These company cars are either wholly owned and
maintained by the company itself or are subject to various plans through which
employees eventually acquire their vehicles after a given period of service, or
after paying a token amount. Many companies provide liberal "car plans" to
enable their managerial or other employees of rank to purchase cars, which,
given the cost of vehicles these days, they would not otherwise be able to
purchase on their own.
Under the first example, the company actually owns and maintains the car up to
the point of turnover of ownership to the employee; in the second example, the
car is really owned and maintained by the employee himself. In furnishing
vehicles to such employees, are companies totally absolved of responsibility
when an accident involving a company-issued car occurs during private use
after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first
plan, require rigorous tests of road worthiness from their agents prior to turning
over the car (subject of company maintenance) to their representatives. In other
words, like a good father of a family, they entrust the company vehicle only after
they are satisfied that the employee to whom the car has been given full use of
the said company car for company or private purposes will not be a threat or
menace to himself, the company or to others. When a company gives full use
and enjoyment of a company car to its employee, it in effect guarantees that it is,
like every good father, satisfied that its employee will use the privilege
reasonably and responsively.
In the ordinary course of business, not all company employees are given the
privilege of using a company-issued car. For large companies other than those
cited in the example of the preceding paragraph, the privilege serves important
business purposes either related to the image of success an entity intends to
present to its clients and to the public in general, or - for practical and utilitarian
reasons - to enable its managerial and other employees of rank or its sales
agents to reach clients conveniently. In most cases, providing a company car
serves both purposes. Since important business transactions and decisions may
occur at all hours in all sorts of situations and under all kinds of guises, the
provision for the unlimited use of a company car therefore principally serves the
business and goodwill of a company and only incidentally the private purposes
of the individual who actually uses the car, the managerial employee or
company sales agent. As such, in providing for a company car for business use
and/or for the purpose of furthering the company's image, a company owes a
responsibility to the public to see to it that the managerial or other employees to
whom it entrusts virtually unlimited use of a company issued car are able to use
the company issue capably and responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc.
In his testimony before the trial court, he admitted that his functions as Assistant
Manager did not require him to scrupulously keep normal office hours as he was
required quite often to perform work outside the office, visiting prospective
buyers and contacting and meeting with company clients.  These meetings,
30 
clearly, were not strictly confined to routine hours because, as a managerial
employee tasked with the job of representing his company with its clients,
meetings with clients were both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial, Inc. therefore enabled both
Li - as well as the corporation - to put up the front of a highly successful entity,
increasing the latter's goodwill before its clientele. It also facilitated meeting
between Li and its clients by providing the former with a convenient mode of
travel.
Moreover, Li's claim that he happened to be on the road on the night of the
accident because he was coming from a social visit with an officemate in
Paranaque was a bare allegation which was never corroborated in the court
below. It was obviously self-serving. Assuming he really came from his
officemate's place, the same could give rise to speculation that he and his
officemate had just been from a work-related function, or they were together to adjustive physical and occupational therapy. All of these adjustments, it has
discuss sales and other work related strategies. been documented, are painful.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction,
that it exercised the care and diligence of a good father of the family in
entrusting its company car to Li. No allegations were made as to whether or not
the company took the steps necessary to determine or ascertain the driving
proficiency and history of Li, to whom it gave full and unlimited use of a company
car. Not having been able to overcome the burden of demonstrating that it
31 
should be absolved of liability for entrusting its company car to Li, said company,
based on the principle of bonus pater familias, ought to be jointly and severally
liable with the former for the injuries sustained by Ma. Lourdes Valenzuela
during the accident.
Finally, we find no reason to overturn the amount of damages awarded by the
respondent court, except as to the amount of moral damages. In the case of
moral damages, while the said damages are not intended to enrich the plaintiff
at the expense of a defendant, the award should nonetheless be commensurate
to the suffering inflicted. In the instant case we are of the opinion that the
reduction in moral damages from an amount of P1,000,000.00 to P800,000,00
by the Court of Appeals was not justified considering the nature of the resulting
damage and the predictable sequelae of the injury.
The foregoing discussion does not even scratch the surface of the nature of the
resulting damage because it would be highly speculative to estimate the amount
of psychological pain, damage and injury which goes with the sudden severing
of a vital portion of the human body. A prosthetic device, however
technologically advanced, will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The sensory functions are
forever lost. The resultant anxiety, sleeplessness, psychological injury, mental
and physical pain are inestimable.
As the amount of moral damages are subject to this Court's discretion, we are of
the opinion that the amount of P1,000,000.00 granted by the trial court is in
greater accord with the extent and nature of the injury - physical and
psychological - suffered by Valenzuela as a result of Li's grossly negligent
driving of his Mitsubishi Lancer in the early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals
is modified with the effect of REINSTATING the judgment of the Regional Trial
Court.

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic

amputation of her left lower extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li),
she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical

and occupational rehabilitation and therapy. During her lifetime, the prosthetic
devise will have to be replaced and re-adjusted to changes in the size of her
lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have
to be adjusted to respond to the changes in bone resulting from a precipitate
decrease in calcium levels observed in the bones of all post-menopausal
women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the
physiologic changes which her body would normally undergo through the years.
The replacements, changes, and adjustments will require corresponding
PHILTRANCO SERVICE ENTERPRISES, INC. and ROGACIONES
MANILHIG, petitioner,
vs.
COURT OF APPEALS and HEIRS OF THE LATE RAMON
ACUESTA, respondents.

DAVIDE, JR., J.:

The petitioners interposed this appeal by way of a petition for review under Rule
45 of the Rules of Court from the 31 January 1995 Decision of the Court of
Appeals in CA-G.R. CV No. 41140   affirming the 22 January 1993   Decision of
1 2

Branch 31 of the Regional Trial Court, Calbayog City, in Civil Case No. 373,
which ordered the petitioners to pay the private respondents damages as a
result of a vehicular accident.

Civil Case No. 373 was an action against herein petitioners for damages
instituted by the heirs of Ramon A. Acuesta, namely, Gregorio O. Acuesta; Julio
O. Acuesta; Ramon O. Acuesta, Jr.; Baltazar O. Acuesta; Rufino O. Acuesta;
Maximo O. Acuesta; Neri O. Acuesta; Iluminada O. Acuesta; Rosario Acuesta-
Sanz; and Pamfilo O. Acuesta. Atty. Julio O. Acuesta also appeared as counsel
for the plaintiffs (herein private respondents).   The private respondents alleged
3

that the petitioners were guilty of gross negligence, recklessness, violation of

traffic rules and regulations, abandonment of victim, and attempt to escape from
a crime.

To support their allegations, the private respondents presented eight witnesses.

On 10 February 1992, after the cross-examination of the last witness, the private
respondents' counsel made a reservation to present a ninth witness. The case
was then set for continuation of the trial on 30 and 31 March 1992. Because of
the non-appearance of the petitioners' counsel, the 30 March 1992 hearing was
cancelled. The next day, private respondents' counsel manifested that he would
no longer present the ninth witness. He thereafter made an oral offer of
evidence and rested the case. The trial court summarized private respondents'
evidence in this wise:
[I]n the early morning of March 24, 1990, about 6:00 o'clock, the victim Ramon
A. Acuesta was riding in his easy rider bicycle (Exhibit "O"), along the Gomez
Street of Calbayog City. The Gomez Street is along the side of Nijaga Park. On
the Magsaysay Blvd., also in Calbayog City, defendant Philtranco Service
Enterprises, Inc. (Philtranco for brevity) Bus No. 4025 with plate No. EVA-725
driven by defendant Rogasiones Manilhig y Dolira was being pushed by some
persons in order to start its engine. The Magsaysay Blvd. runs perpendicular to
Gomez St. and the said Philtranco bus 4025 was heading in the general
direction of the said Gomez Street. Some of the persons who were pushing the
bus were on its back, while the others were on the sides. As the bus was
pushed, its engine started thereby the bus continued on its running motion and it
occurred at the time when Ramon A. Acuesta who was still riding on his bicycle
was directly in front of the said bus. As the engine of the Philtranco bus started
abruptly and suddenly, its running motion was also enhanced by the said
functioning engine, thereby the subject bus bumped on the victim Ramon A.
Acuesta who, as a result thereof fell and, thereafter, was run over by the said
bus. The bus did not stop although it had already bumped and ran [sic] over the
victim; instead, it proceeded running towards the direction of the Rosales Bridge
which is located at one side of the Nijaga Park and towards one end of the
Gomez St., to which direction the victim was then heading when he was riding
on his bicycle. P/Sgt. Yabao who was then jogging thru the Gomez Street and
was heading and meeting the victim Ramon A. Acuesta as the latter was riding
on his bicycle, saw when the Philtranco bus was being pushed by some
passengers, when its engine abruptly started and when the said bus bumped
and ran over the victim. He approached the bus driver defendant Manilhig herein
and signalled to him to stop, but the latter did not listen. So the police officer
jumped into the bus and introducing himself to the driver defendant as
policeman, ordered the latter to stop. The said defendant driver stopped the
Philtranco bus near the Nijaga Park and Sgt. Yabao thereafter, told the driver to
proceed to the Police Headquarter which was only 100 meters away from Nijaga
Park because he was apprehensive that the said driver might be harmed by the
relatives of the victim who might come to the scene of the accident. Then Sgt.
Yabao cordoned the scene where the vehicular accident occurred and had
P/Cpl. Bartolome Bagot, the Traffic Investigator, conduct an investigation and
make a sketch of the crime scene. Sgt. Yambao Yabao was only about 20
meters away when he saw the bus of defendant Philtranco bumped [sic] and
[sic] ran over the victim. From the place where the victim was actually bumped
by the bus, the said vehicle still had run to a distance of about 15 meters away. 
4 amounts:
For their part, the petitioners filed an Answer   wherein they alleged that
5 1) P55, 615.72 as actual damages;
petitioner Philtranco exercised the diligence of a good father of a family in the
selection and supervision of its employees, including petitioner Manilhig who
had excellent record as a driver and had undergone months of rigid training
before he was hired. Petitioner Manilhig had always been a prudent professional
driver, religiously observing traffic rules and regulations. In driving Philtranco's
buses, he exercised the diligence of a very cautious person.
As might be expected, the petitioners had a different version of the incident.
They alleged that in the morning of 24 March 1990, Manilhig, in preparation for
his trip back to Pasay City, warmed up the engine of the bus and made a few
rounds within the city proper of Calbayog. While the bus was slowly and
moderately cruising along Gomez Street, the victim, who was biking towards the
same direction as the bus, suddenly overtook two tricycles and swerved left to
the center of the road. The swerving was abrupt and so sudden that even as
Manilhig applied the brakes and blew the bus horn, the victim was bumped from
behind and run over by the bus. It was neither willful nor deliberate on Manilhig's
part to proceed with the trip after his bus bumped the victim, the truth being that
when he looked at his rear-view window, he saw people crowding around the
victim, with others running after his bus. Fearing that he might be mobbed, he
moved away from the scene of the accident and intended to report the incident
to the police. After a man boarded his bus and introduced himself as a
policeman, Manilhig gave himself up to the custody of the police and reported
the accident in question.
The petitioners further claimed that it was the negligence of the victim in
overtaking two tricycles, without taking precautions such as seeing first that the
road was clear, which caused the death of the victim. The latter did not even
give any signal of his intention to overtake. The petitioners then counterclaimed
for P50,000 as and for attorney's fees; P1 million as moral damages; and
P50,000 for litigation expenses.
However, the petitioners were not able to present their evidence, as they were
deemed to have waived that right by the failure of their counsel to appear at the
scheduled hearings on 30 and 31 March 1992. The trial court then issued an
Order   declaring the case submitted for decision. Motions for the
6
reconsideration of the said Order were both denied.
On 22 January 1992, the trial court handed down a decision ordering the
petitioners to jointly and severally pay the private respondents the following
2) P200,000 as death indemnity for the death of the victim Ramon A. Acuesta;
3) P1 million as moral damages;
4) P500,000 by way of exemplary damages;
5) P50,000 as attorney's fees; and
6) the costs of suit. 
7
Unsatisfied with the judgment, the petitioners appealed to the Court of Appeals
imputing upon the trial court the following errors:
(1) in preventing or barring them from presenting their evidence;
(2) in finding that petitioner Manilhig was at fault;
(3) in not finding that Ramon was the one at fault and his own fault caused, or at
least contributed to, his unfortunate accident;
(4) in awarding damages to the private respondents; and
(5) in finding that petitioner Philtranco was solidarily liable with Manilhig for
damages.  8
In its decision of 31 January 1995, the Court of Appeals affirmed the decision of
the trial court. It held that the petitioners were not denied due process, as they
were given an opportunity to present their defense. The records show that they
were notified of the assignment of the case for 30 and 31 March 1992. Yet, their
counsel did not appear on the said dates. Neither did he file a motion for
postponement of the hearings, nor did he appeal from the denial of the motions
for reconsideration of the 31 March 1992 Order of the trial court. The petitioners
have thereby waived their right to present evidence. Their expectation that they
would have to object yet to a formal offer of evidence by the private respondents
was "misplaced," for it was within the sound discretion of the court to allow oral
offer of evidence.
As to the second and third assigned errors, the respondent court disposed as
follows:
. . . We cannot help but accord with the lower court's finding on appellant
Manilhig's fault. First, it is not disputed that the bus driven by appellant Manilhig
was being pushed at the time of the unfortunate happening. It is of common
knowledge and experience that when a vehicle is pushed to a jump-start, its
initial movement is far from slow. Rather, its movement is abrupt and jerky and it
takes a while before the vehicle attains normal speed. The lower court had thus
enough basis to conclude, as it did, that the bumping of the victim was due to
appellant Manilhig's actionable negligence and inattention. Prudence should
have dictated against jump-starting the bus in a busy section of the city.
Militating further against appellants' posture was the fact that the precarious
pushing of subject bus to a jumpstart was done where the bus had to take a left
turn, thereby making the move too risky to take. The possibility that pedestrians
on Gomez Street, where the bus turned left and the victim was biking, would be
unaware of a vehicle being pushed to a jumpstart, was too obvious to be
overlooked. Verily, contrary to their bare arguments, there was gross negligence
on the part of appellants.
The doctrine of last clear chance theorized upon by appellants, is inapplicable
under the premises because the victim, who was bumped from behind,
obviously, did not of course anticipate a Philtranco bus being pushed from a
perpendicular street.
The respondent court sustained the awards of moral and exemplary damages
and of attorney's fees, for they are warranted under Articles 2206, 2231, and
2208(1), respectively, of the Civil Code. Anent the solidary liability of petitioner
Philtranco, the same finds support in Articles 2180 and 2194 of the said Code.
The defense that Philtranco exercised the diligence of a good father of a family
in the selection and supervision of its employees crumbles in the face of the
gross negligence of its driver, which caused the untimely death of the victim.
Their motion for reconsideration having been denied, the petitioners came to us
claiming that the Court of Appeals gravely erred
I
. . . IN HOLDING THAT PETITIONERS WAIVED THEIR RIGHT TO PRESENT
THEIR EVIDENCE, AND THAT PETITIONERS WERE NOT DENIED DUE
PROCESS.
II
. . . IN APPLYING ART. 2194, INSTEAD OF ART. 2180, OF THE CIVIL CODE,
AND IN HOLDING THAT PETITIONER PHILTRANCO CAN NOT INVOKE THE
DEFENSE OF DILIGENCE OF A GOOD FATHER OF A FAMILY.
 III
. . . IN AWARDING DAMAGES TO RESPONDENTS AND/OR IN NOT FINDING
THE TRIAL COURT'S AWARD OF DAMAGES EXCESSIVE.
We resolved to give due course to the petition and required the parties to submit
their respective memoranda after due consideration of the allegations, issues,
and arguments adduced in the petition, the comment thereon by the private
respondents, and the reply to the comment filed by the petitioners. The
petitioners filed their memorandum in due time; while the private respondents
filed theirs only on 3 January 1997, after their counsel was fined in the amount
of P1,000 for failure to submit the required memorandum.
The first imputed error is without merit. The petitioners and their counsel, Atty.
Jose Buban, were duly notified in open court of the order of the trial court of 10
February 1992 setting the case for hearing on 30 and 31 March 1992.   On both
9
dates neither the petitioners nor their counsel appeared. In his motion for
reconsideration,   Atty. Buban gave the following reasons for his failure to
10
appear on the said hearings:
1. That when this case was called on March 27, 1992, counsel was very much
indisposed due to the rigors of a very hectic campaign as he is a candidate for
City Councilor of Tacloban; he wanted to leave for Calbayog City, but he was
seized with slight fever on the morning of said date; but then, during the last
hearing, counsel was made to understand that plaintiffs would formally offer their
exhibits in writing, for which reason, counsel for defendants waited for a copy of
said formal offer, but counsel did not receive any copy as counsel for plaintiffs
opted to formally offer their exhibits orally in open court;
2. That counsel for defendants, in good faith believed that he would be given
reasonable time within which to comment on the formal offer in writing, only to
know that counsel for plaintiffs orally offered their exhibits in open court and that
the same were admitted by the Honorable Court; and that when this case was
called on March 30 and 31, 1992, the undersigned counsel honestly believed
that said schedule would be cancelled, pending on the submission of the
comments made by the defendants on the formal offer; but it was not so, as the
exhibits were admitted in open court.  11
In its order of 26 May 1992, the trial court denied the motion, finding it to be
"devoid of meritorious basis," as Atty. Buban could have filed a motion for
postponement.   Atty. Buban then filed a motion to reconsider   the order of
12 13
denial, which was likewise denied by the trial court in its order of 12 August
1992.   Nothing more was done by the petitioners after receipt of the order of 12
14
August 1992. A perusal of the first and second motions for reconsideration
discloses absence of any claim that the petitioners have meritorious defenses.
Clearly, therefore, the trial court committed no error in declaring the case
submitted for decision on the basis of private respondent's evidence.
The second imputed error is without merit either.
Civil Case No. 373 is an action for damages based on quasi-delict   under 15
Article 2176 and 2180 of the Civil Code against petitioner Manilhig and his
employer, petitioner Philtranco, respectively. These articles pertinently provide:
Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
Art. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks even though
the former are not engaged in any business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family
to prevent damage.
We have consistently held that the liability of the registered owner of a public
service vehicle, like petitioner Philtranco,   for damages arising from the tortious
16
acts of the driver is primary, direct, and joint and several or solidary with the
driver.   As to solidarity, Article 2194 expressly provides:
17
Art. 2194. The responsibility of two or more persons who are liable for a quasi-
delict is solidary.
Since the employer's liability is primary, direct and solidary, its only recourse if
the judgment for damages is satisfied by it is to recover what it has paid from its
employee who committed the fault or negligence which gave rise to the action
based on quasi-delict. Article 2181 of the Civil Code provides:
Art. 2181. Whoever pays for the damage caused by his dependents or
employees may recover from the latter what he has paid or delivered in
satisfaction of the claim.
There is, however, merit in the third imputed error.
The trial court erroneously fixed the "death indemnity" at P200,000. The private
respondents defended the award in their Opposition to the Motion for
Reconsideration by saying that "[i]n the case of Philippine Airlines, Inc. vs. Court
of Appeals, 185 SCRA 110, our Supreme Court held that the award of damages
for death is computed on the basis of the life expectancy of the deceased." In
that case, the "death indemnity" was computed by multiplying the victim's gross
annual income by his life expectancy, less his yearly living expenses. Clearly
then, the "death indemnity" referred to was the additional indemnity for the loss
of earning capacity mentioned in Article 2206(1) of the Civil Code, and not the
basic indemnity for death mentioned in the first paragraph thereof. This article
provides as follows:
Art. 2206. The amount of damages for death caused by a crime or quasi-delict
shall be at least three thousand pesos, even though there may have been
mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such
indemnity shall in every case be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of
article 291, the recipient who is not an heir called to the decedent's inheritance
by the law of testate or intestate succession, may demand support from the
person causing the death, for a period of not exceeding five years, the exact
duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the
death of the deceased.
We concur with petitioners' view that the trial court intended the award of
"P200,000.00 as death indemnity" not as compensation for loss of earning
capacity. Even if the trial court intended the award as indemnity for loss of
earning capacity, the same must be struck out for lack of basis. There is no
evidence on the victim's earning capacity and life expectancy.
Only indemnity for death under the opening paragraph of Article 2206 is due, the
amount of which has been fixed by current jurisprudence at P50,000.  18
The award of P1 million for moral damages to the heirs of Ramon Acuesta has
no sufficient basis and is excessive and unreasonable. This was based solely on
the testimony of one of the heirs, Atty. Julio Acuesta, contained in his "Direct
Testimony . . . As Plaintiff, conducted by Himself,"   to wit:
19
Q. What was your feeling or reaction as a result of the death of your father
Ramon A. Acuesta?
A. We, the family members, have suffered much from wounded feelings, moral
shock, mental anguish, sleepless nights, to which we are entitled to moral
damages at the reasonable amount of ONE MILLION (P1,000,000.00) PESOS
or at the sound discretion of this Hon. Court.
Since the other heirs of the deceased did not take the witness stand, the trial
court had no basis for its award of moral damages to those who did not testify
thereon.
Moral damages are emphatically not intended to enrich a plaintiff at the expense
of the defendant. They are awarded only to allow the former to obtain means,
diversion, or amusements that will serve to alleviate the moral suffering he has
undergone due to the defendant's culpable action and must, perforce, be
proportional to the suffering inflicted.   In light of the circumstances in this case,
20
an award of P50,000 for moral damages is in order.
The award of P500,000 for exemplary damages is also excessive. In quasi-
delicts, exemplary damages may be awarded if the party at fault acted with
gross negligence.   The Court of Appeals found that there was gross negligence
21
on the part of petitioner Manilhig.   Under Article 2229 of the Civil Code,
22
exemplary damages are imposed by way of example or correction for the public
good, in addition to the moral, temperate, liquidated, or compensatory damages.
Considering its purpose, it must be fair and reasonable in every case and should
not be awarded to unjustly enrich a prevailing party. In the instant case, an
award of P50,000 for the purpose would be adequate, fair, and reasonable.

Finally, the award of P50,000 for attorney's fees must be reduced. The general
rule is that attorney's fees cannot be recovered as part of damages because of
the policy that no premium should be placed on the right to
litigate.   Stated otherwise, the grant of attorney's fees as part of damages is the
23

exception rather than the rule, as counsel's fees are not awarded every time a
party prevails in a suit.   Such attorney's fees can be awarded in the cases
24

enumerated in Article 2208 of the Civil Code, and in all cases it must
be reasonable. In the instant case, the counsel for the plaintiffs is himself a co-
plaintiff; it is then unlikely that he demanded from his brothers and sisters
P100,000 as attorney's fees as alleged in the complaint and testified to by
him.   He did not present any written contract for his fees. He is, however,
25

entitled to a reasonable amount for attorney's fees, considering that exemplary

damages are awarded. Among the instances mentioned in Article 2208 of the
Civil Code when attorney's fees may be recovered is "(1) when exemplary
damages are awarded." Under the circumstances in this case, an award of
P25,000 for attorney's fees is reasonable.

The petitioners did not contest the award for actual damages fixed by the trial
court. Hence, such award shall stand.

IN VIEW OF THE FOREGOING, the petition is hereby partly granted and the
challenged decision of CA-G.R. CV No. 41140 is AFFIRMED, subject to
modifications as to the damages awarded, which are reduced as follows:

(a) Death indemnity, from P200,000 to P50,000;

(b) Moral damages, from P1 million to P50,000;

(c) Exemplary damages, from P500,000 to P50,000; and

(d) Attorney's fees, from P50,000 to P25,000.

No pronouncements as to costs in this instance.

SO ORDERED.
FILAMER CHRISTIAN INSTITUTE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in
his capacity as Judge of the Regional Trial Court, Branch XIV, Roxas City
and POTENCIANO KAPUNAN, SR., respondents.

Bedona & Bedona Law Office for petitioner.

Rhodora G. Kapunan for private respondents.

GUTIERREZ, JR., J.:

The private respondents, heirs of the late Potenciano Kapunan, seek

reconsideration of the decision rendered by this Court on October 16, 1990
(Filamer Christian Institute v. Court of Appeals, 190 SCRA 477) reviewing the
appellate court's conclusion that there exists an employer-employee relationship
between the petitioner and its co-defendant Funtecha. The Court ruled that the
petitioner is not liable for the injuries caused by Funtecha on the grounds that
the latter was not an authorized driver for whose acts the petitioner shall be
directly and primarily answerable, and that Funtecha was merely a working
scholar who, under Section 14, Rule X, Book III of the Rules and Regulations
Implementing the Labor Code is not considered an employee of the petitioner.

The private respondents assert that the circumstances obtaining in the present
case call for the application of Article 2180 of the Civil Code since Funtecha is
no doubt an employee of the petitioner. The private respondents maintain that
under Article 2180 an injured party shall have recourse against the servant as
well as the petitioner for whom, at the time of the incident, the servant was
performing an act in furtherance of the interest and for the benefit of the
petitioner. Funtecha allegedly did not steal the school jeep nor use it for a joy
ride without the knowledge of the school authorities.

After a re-examination of the laws relevant to the facts found by the trial court
and the appellate court, the Court reconsiders its decision. We reinstate the
Court of Appeals' decision penned by the late Justice Desiderio Jurado and
concurred in by Justices Jose C. Campos, Jr. and Serafin E. Camilon. Applying
Civil Code provisions, the appellate court affirmed the trial court decision which
ordered the payment of the P20,000.00 liability in the Zenith Insurance
Corporation policy, P10,000.00 moral damages, P4,000.00 litigation and actual
expenses, and P3,000.00 attorney's fees.
It is undisputed that Funtecha was a working student, being a part-time janitor
and a scholar of petitioner Filamer. He was, in relation to the school, an
employee even if he was assigned to clean the school premises for only two (2)
hours in the morning of each school day.
Having a student driver's license, Funtecha requested the driver, Allan Masa,
and was allowed, to take over the vehicle while the latter was on his way home
one late afternoon. It is significant to note that the place where Allan lives is also
the house of his father, the school president, Agustin Masa. Moreover, it is also
the house where Funtecha was allowed free board while he was a student of
Filamer Christian Institute.
Allan Masa turned over the vehicle to Funtecha only after driving down a road,
negotiating a sharp dangerous curb, and viewing that the road was clear. (TSN,
April 4, 1983, pp. 78-79) According to Allan's testimony, a fast moving truck with
glaring lights nearly hit them so that they had to swerve to the right to avoid a
collision. Upon swerving, they heard a sound as if something had bumped
against the vehicle, but they did not stop to check. Actually, the Pinoy jeep
swerved towards the pedestrian, Potenciano Kapunan who was walking in his
lane in the direction against vehicular traffic, and hit him. Allan affirmed that
Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of
the incident (6:30 P.M.) in Roxas City, the jeep had only one functioning
headlight.
Allan testified that he was the driver and at the same time a security guard of the
petitioner-school. He further said that there was no specific time for him to be
off-duty and that after driving the students home at 5:00 in the afternoon, he still
had to go back to school and then drive home using the same vehicle.
Driving the vehicle to and from the house of the school president where both
Allan and Funtecha reside is an act in furtherance of the interest of the
petitioner-school. Allan's job demands that he drive home the school jeep so he
can use it to fetch students in the morning of the next school day.
It is indubitable under the circumstances that the school president had
knowledge that the jeep was routinely driven home for the said purpose.
Moreover, it is not improbable that the school president also had knowledge of
Funtecha's possession of a student driver's license and his desire to undergo
driving lessons during the time that he was not in his classrooms.
In learning how to drive while taking the vehicle home in the direction of Allan's
house, Funtecha definitely was not having a joy ride. Funtecha was not driving
for the purpose of his enjoyment or for a "frolic of his own" but ultimately, for the
service for which the jeep was intended by the petitioner school. (See L.
Battistoni v. Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR 722 [1932]; See also
Association of Baptists for World Evangelism, Inc. v. Fieldmen's Insurance Co.,
Inc. 124 SCRA 618 [1983]). Therefore, the Court is constrained to conclude that
the act of Funtecha in taking over the steering wheel was one done for and in
behalf of his employer for which act the petitioner-school cannot deny any
responsibility by arguing that it was done beyond the scope of his janitorial
duties. The clause "within the scope of their assigned tasks" for purposes of
raising the presumption of liability of an employer, includes any act done by an
employee, in furtherance of the interests of the employer or for the account of
the employer at the time of the infliction of the injury or damage. (Manuel
Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the employee
driving the vehicle derived some benefit from the act, the existence of a
presumptive liability of the employer is determined by answering the question of
whether or not the servant was at the time of the accident performing any act in
furtherance of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR
1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])
Section 14, Rule X, Book III of the Rules implementing the Labor Code, on
which the petitioner anchors its defense, was promulgated by the Secretary of
Labor and Employment only for the purpose of administering and enforcing the
provisions of the Labor Code on conditions of employment. Particularly, Rule X
of Book III provides guidelines on the manner by which the powers of the Labor
Secretary shall be exercised; on what records should be kept; maintained and
preserved; on payroll; and on the exclusion of working scholars from, and
inclusion of resident physicians in the employment coverage as far as
compliance with the substantive labor provisions on working conditions, rest
periods, and wages, is concerned.
In other words, Rule X is merely a guide to the enforcement of the substantive
law on labor. The Court, thus, makes the distinction and so holds that Section
14, Rule X, Book III of the Rules is not the decisive law in a civil suit for
damages instituted by an injured person during a vehicular accident against a
working student of a school and against the school itself.
The present case does not deal with a labor dispute on conditions of
employment between an alleged employee and an alleged employer. It invokes
a claim brought by one for damages for injury caused by the patently negligent
acts of a person, against both doer-employee and his employer. Hence, the
reliance on the implementing rule on labor to disregard the primary liability of an
employer under Article 2180 of the Civil Code is misplaced. An implementing
rule on labor cannot be used by an employer as a shield to avoid liability under
the substantive provisions of the Civil Code.
There is evidence to show that there exists in the present case an extra-
contractual obligation arising from the negligence or reckless imprudence of a
person "whose acts or omissions are imputable, by a legal fiction, to other(s)
who are in a position to exercise an absolute or limited control over (him)."
(Bahia v. Litonjua and Leynes, 30 Phil. 624 [1915])
Funtecha is an employee of petitioner Filamer. He need not have an official
appointment for a driver's position in order that the petitioner may be held
responsible for his grossly negligent act, it being sufficient that the act of driving
at the time of the incident was for the benefit of the petitioner. Hence, the fact
that Funtecha was not the school driver or was not acting within the scope of his
janitorial duties does not relieve the petitioner of the burden of rebutting the
presumption juris tantum that there was negligence on its part either in the
selection of a servant or employee, or in the supervision over him. The petitioner
has failed to show proof of its having exercised the required diligence of a good
father of a family over its employees Funtecha and Allan.
The Court reiterates that supervision includes the formulation of suitable rules
and regulations for the guidance of its employees and the issuance of proper
instructions intended for the protection of the public and persons with whom the
employer has relations through his employees. (Bahia v. Litonjua and
Leynes, supra, at p. 628; Phoenix Construction, v. Intermediate Appellate Court,
148 SCRA 353 [1987])
An employer is expected to impose upon its employees the necessary discipline
called for in the performance of any act indispensable to the business and
beneficial to their employer.
In the present case, the petitioner has not shown that it has set forth such rules
and guidelines as would prohibit any one of its employees from taking control
over its vehicles if one is not the official driver or prohibiting the driver and son of
the Filamer president from authorizing another employee to drive the school
vehicle. Furthermore, the petitioner has failed to prove that it had imposed
sanctions or warned its employees against the use of its vehicles by persons
other than the driver.
The petitioner, thus, has an obligation to pay damages for injury arising from the
unskilled manner by which Funtecha drove the vehicle. (Cangco v. Manila
Railroad Co., 38 Phil. 768, 772 [1918]). In the absence of evidence that the
petitioner had exercised the diligence of a good father of a family in the
supervision of its employees, the law imposes upon it the vicarious liability for
acts or omissions of its employees. (Umali v. Bacani, 69 SCRA 263 [1976];
Poblete v. Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner v. Coronado, 176
SCRA 792 [1989]; Franco v. Intermediate Appellate Court, 178 SCRA 331
[1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The
liability of the employer is, under Article 2180, primary and solidary. However,
the employer shall have recourse against the negligent employee for whatever
damages are paid to the heirs of the plaintiff.
It is an admitted fact that the actual driver of the school jeep, Allan Masa, was
not made a party defendant in the civil case for damages. This is quite
understandable considering that as far as the injured pedestrian, plaintiff
Potenciano Kapunan, was concerned, it was Funtecha who was the one driving
the vehicle and presumably was one authorized by the school to drive. The
plaintiff and his heirs should not now be left to suffer without simultaneous
recourse against the petitioner for the consequent injury caused by a janitor
doing a driving chore for the petitioner even for a short while. For the purpose of
recovering damages under the prevailing circumstances, it is enough that the
plaintiff and the private respondent heirs were able to establish the existence of
employer-employee relationship between Funtecha and petitioner Filamer and
the fact that Funtecha was engaged in an act not for an independent purpose of
his own but in furtherance of the business of his employer. A position of
responsibility on the part of the petitioner has thus been satisfactorily
demonstrated.
WHEREFORE, the motion for reconsideration of the decision dated October 16,
1990 is hereby GRANTED. The decision of the respondent appellate court
affirming the trial court decision is REINSTATED.
SO ORDERED.
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.

Crossfield and O'Brien for plaintiff.

Attorney-General Avanceña for defendant..

TRENT, J.:

This is an appeal by both parties from a judgment of the Court of First Instance
of the city of Manila in favor of the plaintiff for the sum of P14,741, together with
the costs of the cause.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general
damages which the plaintiff suffered to P5,000, instead of P25,000 as claimed in
the complaint," and (2) "in limiting the time when plaintiff was entirely disabled to
two months and twenty-one days and fixing the damage accordingly in the sum
of P2,666, instead of P6,000 as claimed by plaintiff in his complaint."

The Attorney-General on behalf of the defendant urges that the trial court erred:
(a) in finding that the collision between the plaintiff's motorcycle and the
ambulance of the General Hospital was due to the negligence of the chauffeur;
(b) in holding that the Government of the Philippine Islands is liable for the
damages sustained by the plaintiff as a result of the collision, even if it be true
that the collision was due to the negligence of the chauffeur; and (c) in rendering
judgment against the defendant for the sum of P14,741.

The trial court's findings of fact, which are fully supported by the record, are as
follows:

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding
on a motorcycle, was going toward the western part of Calle Padre Faura,
passing along the west side thereof at a speed of ten to twelve miles an hour,
upon crossing Taft Avenue and when he was ten feet from the southwestern
intersection of said streets, the General Hospital ambulance, upon reaching said
avenue, instead of turning toward the south, after passing the center thereof, so
that it would be on the left side of said avenue, as is prescribed by the ordinance
and the Motor Vehicle Act, turned suddenly and unexpectedly and long before
reaching the center of the street, into the right side of Taft Avenue, without
having sounded any whistle or horn, by which movement it struck the plaintiff,
who was already six feet from the southwestern point or from the post place
there.
By reason of the resulting collision, the plaintiff was so severely injured that,
according to Dr. Saleeby, who examined him on the very same day that he was
taken to the General Hospital, he was suffering from a depression in the left
parietal region, a would in the same place and in the back part of his head, while
blood issued from his nose and he was entirely unconscious.
The marks revealed that he had one or more fractures of the skull and that the
grey matter and brain was had suffered material injury. At ten o'clock of the night
in question, which was the time set for performing the operation, his pulse was
so weak and so irregular that, in his opinion, there was little hope that he would
live. His right leg was broken in such a way that the fracture extended to the
outer skin in such manner that it might be regarded as double and the would be
exposed to infection, for which reason it was of the most serious nature.
At another examination six days before the day of the trial, Dr. Saleeby noticed
that the plaintiff's leg showed a contraction of an inch and a half and a curvature
that made his leg very weak and painful at the point of the fracture. Examination
of his head revealed a notable readjustment of the functions of the brain and
nerves. The patient apparently was slightly deaf, had a light weakness in his
eyes and in his mental condition. This latter weakness was always noticed when
the plaintiff had to do any difficult mental labor, especially when he attempted to
use his money for mathematical calculations.
According to the various merchants who testified as witnesses, the plaintiff's
mental and physical condition prior to the accident was excellent, and that after
having received the injuries that have been discussed, his physical condition
had undergone a noticeable depreciation, for he had lost the agility, energy, and
ability that he had constantly displayed before the accident as one of the best
constructors of wooden buildings and he could not now earn even a half of the
income that he had secured for his work because he had lost 50 per cent of his
efficiency. As a contractor, he could no longer, as he had before done, climb up
ladders and scaffoldings to reach the highest parts of the building.
As a consequence of the loss the plaintiff suffered in the efficiency of his work as
a contractor, he had to dissolved the partnership he had formed with the
engineer. Wilson, because he was incapacitated from making mathematical
calculations on account of the condition of his leg and of his mental faculties,
and he had to give up a contract he had for the construction of the Uy Chaco
building."
We may say at the outset that we are in full accord with the trial court to the
effect that the collision between the plaintiff's motorcycle and the ambulance of
the General Hospital was due solely to the negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which are drawn in
question by the plaintiff are (a) P5,000, the award awarded for permanent
injuries, and (b) the P2,666, the amount allowed for the loss of wages during the
time the plaintiff was incapacitated from pursuing his occupation. We find
nothing in the record which would justify us in increasing the amount of the first.
As to the second, the record shows, and the trial court so found, that the
plaintiff's services as a contractor were worth P1,000 per month. The court,
however, limited the time to two months and twenty-one days, which the plaintiff
was actually confined in the hospital. In this we think there was error, because it
was clearly established that the plaintiff was wholly incapacitated for a period of
six months. The mere fact that he remained in the hospital only two months and
twenty-one days while the remainder of the six months was spent in his home,
would not prevent recovery for the whole time. We, therefore, find that the
amount of damages sustained by the plaintiff, without any fault on his part, is
P18,075.
As the negligence which caused the collision is a tort committed by an agent or
employee of the Government, the inquiry at once arises whether the
Government is legally-liable for the damages resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit against the Government of the
Philippine Islands and authorizing the Attorney-General of said Islands to appear
in said suit.
Whereas a claim has been filed against the Government of the Philippine
Islands by Mr. E. Merritt, of Manila, for damages resulting from a collision
between his motorcycle and the ambulance of the General Hospital on March
twenty-fifth, nineteen hundred and thirteen;
Whereas it is not known who is responsible for the accident nor is it possible to
determine the amount of damages, if any, to which the claimant is entitled; and
Whereas the Director of Public Works and the Attorney-General recommended
that an Act be passed by the Legislature authorizing Mr. E. Merritt to bring suit in
the courts against the Government, in order that said questions may be decided:
Now, therefore,
By authority of the United States, be it enacted by the Philippine Legislature,
that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First
Instance of the city of Manila against the Government of the Philippine Islands in
order to fix the responsibility for the collision between his motorcycle and the
ambulance of the General Hospital, and to determine the amount of the
damages, if any, to which Mr. E. Merritt is entitled on account of said collision,
and the Attorney-General of the Philippine Islands is hereby authorized and
directed to appear at the trial on the behalf of the Government of said Islands, to
defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply waive its immunity
from suit or did it also concede its liability to the plaintiff? If only the former, then
it cannot be held that the Act created any new cause of action in favor of the
plaintiff or extended the defendant's liability to any case not previously
recognized.
All admit that the Insular Government (the defendant) cannot be sued by an
individual without its consent. It is also admitted that the instant case is one
against the Government. As the consent of the Government to be sued by the
plaintiff was entirely voluntary on its part, it is our duty to look carefully into the
terms of the consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order
to fix the responsibility for the collision between his motorcycle and the
ambulance of the General Hospital and to determine the amount of the
damages, if any, to which Mr. E. Merritt is entitled on account of said collision, . .
. ." These were the two questions submitted to the court for determination. The
Act was passed "in order that said questions may be decided." We have
"decided" that the accident was due solely to the negligence of the chauffeur,
who was at the time an employee of the defendant, and we have also fixed the
amount of damages sustained by the plaintiff as a result of the collision. Does
the Act authorize us to hold that the Government is legally liable for that
amount? If not, we must look elsewhere for such authority, if it exists.
The Government of the Philippine Islands having been "modeled after the
Federal and State Governments in the United States," we may look to the
decisions of the high courts of that country for aid in determining the purpose
and scope of Act No. 2457.
In the United States the rule that the state is not liable for the torts committed by
its officers or agents whom it employs, except when expressly made so by
legislative enactment, is well settled. "The Government," says Justice Story,
"does not undertake to guarantee to any person the fidelity of the officers or
agents whom it employs, since that would involve it in all its operations in
endless embarrassments, difficulties and losses, which would be subversive of
the public interest." (Claussen vs. City of Luverne, 103 Minn., 491, citing U. S.
vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States, 20 How., 527;
15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover
damages from the state for personal injuries received on account of the
negligence of the state officers at the state fair, a state institution created by the
legislature for the purpose of improving agricultural and kindred industries; to
disseminate information calculated to educate and benefit the industrial classes;
and to advance by such means the material interests of the state, being objects
similar to those sought by the public school system. In passing upon the
question of the state's liability for the negligent acts of its officers or agents, the
court said:
No claim arises against any government is favor of an individual, by reason of
the misfeasance, laches, or unauthorized exercise of powers by its officers or
agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51,
53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158;
Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203;
Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting individuals to sue the state
where the cause of action arises out of either fort or contract, the rule is stated in
36 Cyc., 915, thus:
By consenting to be sued a state simply waives its immunity from suit. It does
not thereby concede its liability to plaintiff, or create any cause of action in his
favor, or extend its liability to any cause not previously recognized. It merely
gives a remedy to enforce a preexisting liability and submits itself to the
jurisdiction of the court, subject to its right to interpose any lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16,
1915, the Act of 1913, which authorized the bringing of this suit, read:
SECTION 1. Authority is hereby given to George Apfelbacher, of the town of
Summit, Waukesha County, Wisconsin, to bring suit in such court or courts and
in such form or forms as he may be advised for the purpose of settling and
determining all controversies which he may now have with the State of
Wisconsin, or its duly authorized officers and agents, relative to the mill property
of said George Apfelbacher, the fish hatchery of the State of Wisconsin on the
Bark River, and the mill property of Evan Humphrey at the lower end of
Nagawicka Lake, and relative to the use of the waters of said Bark River and
Nagawicka Lake, all in the county of Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law the legislature admitted liability
on the part of the state for the acts of its officers, and that the suit now stands
just as it would stand between private parties. It is difficult to see how the act
does, or was intended to do, more than remove the state's immunity from suit. It
simply gives authority to commence suit for the purpose of settling plaintiff's
controversies with the estate. Nowhere in the act is there a whisper or
suggestion that the court or courts in the disposition of the suit shall depart from
well established principles of law, or that the amount of damages is the only
question to be settled. The act opened the door of the court to the plaintiff. It did
not pass upon the question of liability, but left the suit just where it would be in
the absence of the state's immunity from suit. If the Legislature had intended to
change the rule that obtained in this state so long and to declare liability on the
part of the state, it would not have left so important a matter to mere inference,
but would have done so in express terms. (Murdock Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied
upon and considered, are as follows:
All persons who have, or shall hereafter have, claims on contract or for
negligence against the state not allowed by the state board of examiners, are
hereby authorized, on the terms and conditions herein contained, to bring suit
thereon against the state in any of the courts of this state of competent
jurisdiction, and prosecute the same to final judgment. The rules of practice in
civil cases shall apply to such suits, except as herein otherwise provided.
And the court said:
This statute has been considered by this court in at least two cases, arising
under different facts, and in both it was held that said statute did not create any
liability or cause of action against the state where none existed before, but
merely gave an additional remedy to enforce such liability as would have existed
if the statute had not been enacted. (Chapman vs. State, 104 Cal., 690; 43 Am.
St. Rep., 158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior court
"jurisdiction of all claims against the commonwealth, whether at law or in equity,"
with an exception not necessary to be here mentioned. In construing this statute
the court, in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no intention to create against the state a
new and heretofore unrecognized class of liabilities, but only an intention to
provide a judicial tribunal where well recognized existing liabilities can be
adjudicated.
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by
the terms of the statute of New York, jurisdiction of claims for damages for
injuries in the management of the canals such as the plaintiff had sustained,
Chief Justice Ruger remarks: "It must be conceded that the state can be made
liable for injuries arising from the negligence of its agents or servants, only by
force of some positive statute assuming such liability."
It being quite clear that Act No. 2457 does not operate to extend the
Government's liability to any cause not previously recognized, we will now
examine the substantive law touching the defendant's liability for the negligent
acts of its officers, agents, and employees. Paragraph 5 of article 1903 of the
Civil Code reads:
The state is liable in this sense when it acts through a special agent, but not
when the damage should have been caused by the official to whom properly it
pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.
The supreme court of Spain in defining the scope of this paragraph said:
That the obligation to indemnify for damages which a third person causes to
another by his fault or negligence is based, as is evidenced by the same Law 3,
Title 15, Partida 7, on that the person obligated, by his own fault or negligence,
takes part in the act or omission of the third party who caused the damage. It
follows therefrom that the state, by virtue of such provisions of law, is not
responsible for the damages suffered by private individuals in consequence of
acts performed by its employees in the discharge of the functions pertaining to
their office, because neither fault nor even negligence can be presumed on the
part of the state in the organization of branches of public service and in the
appointment of its agents; on the contrary, we must presuppose all foresight
humanly possible on its part in order that each branch of service serves the
general weal an that of private persons interested in its operation. Between
these latter and the state, therefore, no relations of a private nature governed by
the civil law can arise except in a case where the state acts as a judicial person
capable of acquiring rights and contracting obligations. (Supreme Court of
Spain, January 7, 1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which
arise out of fault or negligence; and whereas in the first article thereof. No. 1902,
where the general principle is laid down that where a person who by an act or
omission causes damage to another through fault or negligence, shall be
obliged to repair the damage so done, reference is made to acts or omissions of
the persons who directly or indirectly cause the damage, the following articles
refers to this persons and imposes an identical obligation upon those who
maintain fixed relations of authority and superiority over the authors of the
damage, because the law presumes that in consequence of such relations the
evil caused by their own fault or negligence is imputable to them. This legal
presumption gives way to proof, however, because, as held in the last
paragraph of article 1903, responsibility for acts of third persons ceases when
the persons mentioned in said article prove that they employed all the diligence
of a good father of a family to avoid the damage, and among these persons,
called upon to answer in a direct and not a subsidiary manner, are found, in
addition to the mother or the father in a proper case, guardians and owners or
directors of an establishment or enterprise, the state, but not always, except
when it acts through the agency of a special agent, doubtless because and only
in this case, the fault or negligence, which is the original basis of this kind of
objections, must be presumed to lie with the state.
That although in some cases the state might by virtue of the general principle
set forth in article 1902 respond for all the damage that is occasioned to private
parties by orders or resolutions which by fault or negligence are made by
branches of the central administration acting in the name and representation of
the state itself and as an external expression of its sovereignty in the exercise of
its executive powers, yet said article is not applicable in the case of damages
said to have been occasioned to the petitioners by an executive official, acting in
the exercise of his powers, in proceedings to enforce the collections of certain
property taxes owing by the owner of the property which they hold in sublease.
That the responsibility of the state is limited by article 1903 to the case wherein it
acts through a special agent (and a special agent, in the sense in which these
words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special
official) so that in representation of the state and being bound to act as an agent
thereof, he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the acting administration and who
on his own responsibility performs the functions which are inherent in and
naturally pertain to his office and which are regulated by law and the
regulations." (Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of the Civil Code and the principle
laid down in a decision, among others, of the 18th of May, 1904, in a damage
case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform
some act or charged with some definite purpose which gives rise to the claim,
and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to
the proper responsibility in the manner laid down by the law of civil
responsibility. Consequently, the trial court in not so deciding and in sentencing
the said entity to the payment of damages, caused by an official of the second
class referred to, has by erroneous interpretation infringed the provisions of
articles 1902 and 1903 of the Civil Code. (Supreme Court of Spain, July 30,
1911; 122 Jur. Civ., 146.)
It is, therefore, evidence that the State (the Government of the Philippine
Islands) is only liable, according to the above quoted decisions of the Supreme
Court of Spain, for the acts of its agents, officers and employees when they act
as special agents within the meaning of paragraph 5 of article 1903, supra, and
that the chauffeur of the ambulance of the General Hospital was not such an
agent.
For the foregoing reasons, the judgment appealed from must be reversed,
without costs in this instance. Whether the Government intends to make itself
legally liable for the amount of damages above set forth, which the plaintiff has
sustained by reason of the negligent acts of one of its employees, by legislative
enactment and by appropriating sufficient funds therefor, we are not called upon
to determine. This matter rests solely with the Legislature and not with the
courts.
SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners,
vs.
HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION
ADMINISTRATION, respondents.

G.R. No. L-61045 December 1, 1989

NATIONAL IRRIGATION ADMINISTRATION, appellant,

vs.
SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees.

Cecilio V. Suarez, Jr. for Spouses Fontanilla.

Felicisimo C. Villaflor for NIA.

PARAS, J.:

In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of
the decision dated March 20, 1980 of the then Court of First Instance of Nueva
Ecija, Branch VIII, at San Jose City and its modification with respect to the
denial of petitioner's claim for moral and exemplary damages and attorneys
fees.

In G.R. No. 61045, respondent National Irrigation Administration seeks the

reversal of the aforesaid decision of the lower court. The original appeal of this
case before the Court of Appeals was certified to this Court and in the resolution
of July 7, 1982, it was docketed with the aforecited number. And in the
resolution of April 3, this case was consolidated with G.R. No. 55963.

It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and
operated by respondent National Irrigation Administration, a government agency
bearing Plate No. IN-651, then driven officially by Hugo Garcia, an employee of
said agency as its regular driver, bumped a bicycle ridden by Francisco
Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose
City along the Maharlika Highway. As a result of the impact, Francisco Fontanilla
and Restituto Deligo were injured and brought to the San Jose City Emergency
Hospital for treatment. Fontanilla was later transferred to the Cabanatuan
Provincial Hospital where he died.
Garcia was then a regular driver of respondent National Irrigation Administration
who, at the time of the accident, was a licensed professional driver and who
qualified for employment as such regular driver of respondent after having
passed the written and oral examinations on traffic rules and maintenance of
vehicles given by National Irrigation Administration authorities.
The within petition is thus an off-shot of the action (Civil Case No. SJC-56)
instituted by petitioners-spouses on April 17, 1978 against respondent NIA
before the then Court of First Instance of Nueva Ecija, Branch VIII at San Jose
City, for damages in connection with the death of their son resulting from the
aforestated accident.
After trial, the trial court rendered judgment on March 20, 1980 which directed
respondent National Irrigation Administration to pay damages (death benefits)
and actual expenses to petitioners. The dispositive portion of the decision reads
thus:
. . . . . Judgment is here rendered ordering the defendant National Irrigation
Administration to pay to the heirs of the deceased P12,000.00 for the death of
Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent
for the hospitalization and burial of the deceased Francisco Fontanilla; and to
pay the costs. (Brief for the petitioners spouses Fontanilla, p. 4; Rollo, p. 132)
Respondent National Irrigation Administration filed on April 21, 1980, its motion
for reconsideration of the aforesaid decision which respondent trial court denied
in its Order of June 13, 1980. Respondent National Irrigation Administration thus
appealed said decision to the Court of Appeals (C.A.-G.R. No. 67237- R) where
it filed its brief for appellant in support of its position.
Instead of filing the required brief in the aforecited Court of Appeals case,
petitioners filed the instant petition with this Court.
The sole issue for the resolution of the Court is: Whether or not the award of
moral damages, exemplary damages and attorney's fees is legally proper in a
complaint for damages based on quasi-delict which resulted in the death of the
son of herein petitioners.
Petitioners allege:
1. The award of moral damages is specifically allowable. under paragraph 3 of
Article 2206 of the New Civil Code which provides that the spouse, legitimate
and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.
Should moral damages be granted, the award should be made to each of
petitioners-spouses individually and in varying amounts depending upon proof of
mental and depth of intensity of the same, which should not be less than
P50,000.00 for each of them.
2. The decision of the trial court had made an impression that respondent
National Irrigation Administration acted with gross negligence because of the
accident and the subsequent failure of the National Irrigation Administration
personnel including the driver to stop in order to give assistance to the, victims.
Thus, by reason of the gross negligence of respondent, petitioners become
entitled to exemplary damages under Arts. 2231 and 2229 of the New Civil
Code.
3. Petitioners are entitled to an award of attorney's fees, the amount of which
(20%) had been sufficiently established in the hearing of May 23, 1979.
4. This petition has been filed only for the purpose of reviewing the findings of
the lower court upon which the disallowance of moral damages, exemplary
damages and attorney's fees was based and not for the purpose of disturbing
the other findings of fact and conclusions of law.
The Solicitor General, taking up the cudgels for public respondent National
Irrigation Administration, contends thus:
1. The filing of the instant petition is rot proper in view of the appeal taken by
respondent National Irrigation Administration to the Court of Appeals against the
judgment sought to be reviewed. The focal issue raised in respondent's appeal
to the Court of Appeals involves the question as to whether or not the driver of
the vehicle that bumped the victims was negligent in his operation of said
vehicle. It thus becomes necessary that before petitioners' claim for moral and
exemplary damages could be resolved, there should first be a finding of
negligence on the part of respondent's employee-driver. In this regard, the
Solicitor General alleges that the trial court decision does not categorically
contain such finding.
2. The filing of the "Appearance and Urgent Motion For Leave to File Plaintiff-
Appellee's Brief" dated December 28, 1981 by petitioners in the appeal (CA-
G.R. No. 67237-R; and G. R. No.61045) of the respondent National Irrigation
Administration before the Court of Appeals, is an explicit admission of said
petitioners that the herein petition, is not proper. Inconsistent procedures are
manifest because while petitioners question the findings of fact in the Court of
Appeals, they present only the questions of law before this Court which posture
confirms their admission of the facts.
3. The fact that the parties failed to agree on whether or not negligence caused
the vehicular accident involves a question of fact which petitioners should have
brought to the Court of Appeals within the reglementary period. Hence, the
decision of the trial court has become final as to the petitioners and for this
reason alone, the petition should be dismissed.
4. Respondent Judge acted within his jurisdiction, sound discretion and in
conformity with the law.
5. Respondents do not assail petitioners' claim to moral and exemplary
damages by reason of the shock and subsequent illness they suffered because
of the death of their son. Respondent National Irrigation Administration,
however, avers that it cannot be held liable for the damages because it is an
agency of the State performing governmental functions and driver Hugo Garcia
was a regular driver of the vehicle, not a special agent who was performing a job
or act foreign to his usual duties. Hence, the liability for the tortious act should.
not be borne by respondent government agency but by driver Garcia who should
answer for the consequences of his act.
6. Even as the trial court touched on the failure or laxity of respondent National
Irrigation Administration in exercising due diligence in the selection and
supervision of its employee, the matter of due diligence is not an issue in this
case since driver Garcia was not its special agent but a regular driver of the
vehicle.
The sole legal question on whether or not petitioners may be entitled to an
award of moral and exemplary damages and attorney's fees can very well be
answered with the application of Arts. 2176 and 2180 of theNew Civil Code.
Art. 2176 thus provides:
Whoever by act omission causes damage to another, there being fault or
negligence, is obliged to pay for damage done. Such fault or negligence, if there
is no pre-existing cotractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter
Paragraphs 5 and 6 of Art. 21 80 read as follows:
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even the
though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent.;
but not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in Art. 2176 shall be
applicable.
The liability of the State has two aspects. namely:
1. Its public or governmental aspects where it is liable for the tortious acts of
special agents only.
2. Its private or business aspects (as when it engages in private enterprises)
where it becomes liable as an ordinary employer. (p. 961, Civil Code of the
Philippines; Annotated, Paras; 1986 Ed. ).
In this jurisdiction, the State assumes a limited liability for the damage caused by
the tortious acts or conduct of its special agent.
Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily
assumed liability for acts done through special agents. The State's agent, if a
public official, must not only be specially commissioned to do a particular task
but that such task must be foreign to said official's usual governmental functions.
If the State's agent is not a public official, and is commissioned to perform non-
governmental functions, then the State assumes the role of an ordinary
employer and will be held liable as such for its agent's tort. Where the
government commissions a private individual for a special governmental task, it
is acting through a special agent within the meaning of the provision. (Torts and
Damages, Sangco, p. 347, 1984 Ed.)
Certain functions and activities, which can be performed only by the
government, are more or less generally agreed to be "governmental" in
character, and so the State is immune from tort liability. On the other hand, a
service which might as well be provided by a private corporation, and particularly
when it collects revenues from it, the function is considered a "proprietary" one,
as to which there may be liability for the torts of agents within the scope of their
employment.
The National Irrigation Administration is an agency of the government exercising
proprietary functions, by express provision of Rep. Act No. 3601. Section 1 of
said Act provides:
Section 1. Name and domicile.-A body corporate is hereby created which shall
be known as the National Irrigation Administration, hereinafter called the NIA for
short, which shall be organized immediately after the approval of this Act. It shall
have its principal seat of business in the City of Manila and shall have
representatives in all provinces for the proper conduct of its business.
Section 2 of said law spells out some of the NIA's proprietary functions. Thus-
Sec. 2. Powers and objectives.-The NIA shall have the following powers and
objectives:
(a) x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x
(c) To collect from the users of each irrigation system constructed by it such fees
as may be necessary to finance the continuous operation of the system and
reimburse within a certain period not less than twenty-five years cost of
construction thereof; and
(d) To do all such other tthings and to transact all such business as are directly
or indirectly necessary, incidental or conducive to the attainment of the above
objectives.
Indubitably, the NIA is a government corporation with juridical personality and
not a mere agency of the government. Since it is a corporate body performing
non-governmental functions, it now becomes liable for the damage caused by
the accident resulting from the tortious act of its driver-employee. In this
particular case, the NIA assumes the responsibility of an ordinary employer and
as such, it becomes answerable for damages.
This assumption of liability, however, is predicated upon the existence of
negligence on the part of respondent NIA. The negligence referred to here is the
negligence of supervision.
At this juncture, the matter of due diligence on the part of respondent NIA
becomes a crucial issue in determining its liability since it has been established
that respondent is a government agency performing proprietary functions and as
such, it assumes the posture of an ordinary employer which, under Par. 5 of Art.
2180, is responsible for the damages caused by its employees provided that it
has failed to observe or exercise due diligence in the selection and supervision
of the driver.
It will be noted from the assailed decision of the trial court that "as a result of the
impact, Francisco Fontanilla was thrown to a distance 50 meters away from the
point of impact while Restituto Deligo was thrown a little bit further away. The
impact took place almost at the edge of the cemented portion of the road."
(Emphasis supplied,) [page 26, Rollo]
The lower court further declared that "a speeding vehicle coming in contact with
a person causes force and impact upon the vehicle that anyone in the vehicle
cannot fail to notice. As a matter of fact, the impact was so strong as shown by
the fact that the vehicle suffered dents on the right side of the radiator guard, the
hood, the fender and a crack on the radiator as shown by the investigation
report (Exhibit "E"). (Emphasis supplied) [page 29, Rollo]
It should be emphasized that the accident happened along the Maharlika
National Road within the city limits of San Jose City, an urban area. Considering
the fact that the victim was thrown 50 meters away from the point of impact,
there is a strong indication that driver Garcia was driving at a high speed. This is
confirmed by the fact that the pick-up suffered substantial and heavy damage as
above-described and the fact that the NIA group was then "in a hurry to reach
the campsite as early as possible", as shown by their not stopping to find out
what they bumped as would have been their normal and initial reaction.
Evidently, there was negligence in the supervision of the driver for the reason
that they were travelling at a high speed within the city limits and yet the
supervisor of the group, Ely Salonga, failed to caution and make the driver
observe the proper and allowed speed limit within the city. Under the situation,
such negligence is further aggravated by their desire to reach their destination
without even checking whether or not the vehicle suffered damage from the
object it bumped, thus showing imprudence and reckelessness on the part of
both the driver and the supervisor in the group.
Significantly, this Court has ruled that even if the employer can prove the
diligence in the selection and supervision (the latter aspect has not been
established herein) of the employee, still if he ratifies the wrongful acts, or take
no step to avert further damage, the employer would still be liable. (Maxion vs.
Manila Railroad Co., 44 Phil. 597).

Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August
31, 1970, 34 SCRA 618), this Court held that a driver should be especially
watchful in anticipation of others who may be using the highway, and his failure
to keep a proper look out for reasons and objects in the line to be traversed
constitutes negligence.

Considering the foregoing, respondent NIA is hereby directed to pay herein

petitioners-spouses the amounts of P12,000.00 for the death of Francisco
Fontanilla; P3,389.00 for hospitalization and burial expenses of the aforenamed
deceased; P30,000.00 as moral damages; P8,000.00 as exemplary damages
and attorney's fees of 20% of the total award.

SO ORDERED.
CITY OF MANILA, petitioner,
vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.

Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner
of the Old Luneta and P. Burgos Avenue, Manila, within a "loading and
unloading" zone, waiting for a jeepney to take him down town. After waiting for
about five minutes, he managed to hail a jeepney that came along to a stop. As
he stepped down from the curb to board the jeepney, and took a few steps, he
fell inside an uncovered and unlighted catch basin or manhole on P. Burgos
Avenue. Due to the fall, his head hit the rim of the manhole breaking his
eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons came to his assistance
and pulled him out of the manhole. One of them brought Teotico to the
Philippine General Hospital, where his injuries were treated, after which he was
taken home. In addition to the lacerated wound in his left upper eyelid, Teotico
suffered contusions on the left thigh, the left upper arm, the right leg and the
upper lip apart from an abrasion on the right infra-patella region. These injuries
and the allergic eruption caused by anti-tetanus injections administered to him in
the hospital, required further medical treatment by a private practitioner who
charged therefor P1,400.00.
As a consequence of the foregoing occurrence, Teotico filed, with the Court of
First Instance of Manila, a complaint — which was, subsequently, amended —
for damages against the City of Manila, its mayor, city engineer, city health
officer, city treasurer and chief of police. As stated in the decision of the trial
court, and quoted with approval by the Court of Appeals,
At the time of the incident, plaintiff was a practicing public accountant, a
businessman and a professor at the University of the East. He held responsible
positions in various business firms like the Philippine Merchandising Co., the
A.U. Valencia and Co., the Silver Swan Manufacturing Company and the
Sincere Packing Corporation. He was also associated with several civic
organizations such as the Wack Wack Golf Club, the Chamber of Commerce of
the Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of
the incident, plaintiff was prevented from engaging in his customary occupation
for twenty days. Plaintiff has lost a daily income of about P50.00 during his
incapacity to work. Because of the incident, he was subjected to humiliation and
ridicule by his business associates and friends. During the period of his
treatment, plaintiff was under constant fear and anxiety for the welfare of his
minor children since he was their only support. Due to the filing of this case,
plaintiff has obligated himself to pay his counsel the sum of P2,000.00.
On the other hand, the defense presented evidence, oral and documentary, to
prove that the Storm Drain Section, Office of the City Engineer of Manila,
received a report of the uncovered condition of a catchbasin at the corner of P.
Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was
covered on the same day (Exhibit 4); that again the iron cover of the same catch
basin was reported missing on January 30, 1958, but the said cover was
replaced the next day (Exhibit 5); that the Office of the City Engineer never
received any report to the effect that the catchbasin in question was not covered
between January 25 and 29, 1968; that it has always been a policy of the said
office, which is charged with the duty of installation, repair and care of storm
drains in the City of Manila, that whenever a report is received from whatever
source of the loss of a catchbasin cover, the matter is immediately attended to,
either by immediately replacing the missing cover or covering the catchbasin
with steel matting that because of the lucrative scrap iron business then
prevailing, stealing of iron catchbasin covers was rampant; that the Office of the
City Engineer has filed complaints in court resulting from theft of said iron
covers; that in order to prevent such thefts, the city government has changed the
position and layout of catchbasins in the City by constructing them under the
sidewalks with concrete cement covers and openings on the side of the gutter;
and that these changes had been undertaken by the city from time to time
whenever funds were available.
After appropriate proceedings the Court of First Instance of Manila rendered the
aforementioned decision sustaining the theory of the defendants and dismissing
the amended complaint, without costs.
On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals,
except insofar as the City of Manila is concerned, which was sentenced to pay
damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of
Manila.
The first issue raised by the latter is whether the present case is governed by
Section 4 of Republic Act No. 409 (Charter of the City of Manila) reading:
The city shall not be liable or held for damages or injuries to persons or property
arising from the failure of the Mayor, the Municipal Board, or any other city
officer, to enforce the provisions of this chapter, or any other law or ordinance,
or from negligence of said Mayor, Municipal Board, or other officers while
enforcing or attempting to enforce said provisions.
or by Article 2189 of the Civil Code of the Philippines which provides:
Provinces, cities and municipalities shall be liable for damages for the death of,
or injuries suffered by, any person by reason of defective conditions of road,
streets, bridges, public buildings, and other public works under their control or
supervision.
Manila maintains that the former provision should prevail over the latter,
because Republic Act 409, is a special law, intended exclusively for the City of
Manila, whereas the Civil Code is a general law, applicable to the entire
Philippines.
The Court of Appeals, however, applied the Civil Code, and, we think, correctly.
It is true that, insofar as its territorial application is concerned, Republic Act No.
409 is a special law and the Civil Code a general legislation; but, as regards the
subject-matter of the provisions above quoted, Section 4 of Republic Act 409
establishes a general rule regulating the liability of the City of Manila for:
"damages or injury to persons or property arising from the failure of" city officers
"to enforce the provisions of" said Act "or any other law or ordinance, or from
negligence" of the city "Mayor, Municipal Board, or other officers while enforcing
or attempting to enforce said provisions." Upon the other hand, Article 2189 of
the Civil Code constitutes a particular prescription making "provinces, cities and
municipalities . . . liable for damages for the death of, or injury suffered by any
person by reason" — specifically — "of the defective condition of roads, streets,
bridges, public buildings, and other-public works under their control or
supervision." In other words, said section 4 refers to liability arising from
negligence, in general, regardless of the object thereof, whereas Article 2189
governs liability due to "defective streets," in particular. Since the present action
is based upon the alleged defective condition of a road, said Article 2189 is
decisive thereon.
It is urged that the City of Manila cannot be held liable to Teotico for damages:
1) because the accident involving him took place in a national highway; and 2)
because the City of Manila has not been negligent in connection therewith.
As regards the first issue, we note that it is based upon an allegation of fact not
made in the answer of the City. Moreover, Teotico alleged in his complaint, as
well as in his amended complaint, that his injuries were due to the defective
condition of a street which is "under the supervision and control" of the City. In
its answer to the amended complaint, the City, in turn, alleged that "the streets
aforementioned were and have been constantly kept in good condition and
regularly inspected and the storm drains and manholes thereof covered by the
defendant City and the officers concerned" who "have been ever vigilant and
zealous in the performance of their respective functions and duties as imposed
upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue
was and is under its control and supervision.
Moreover, the assertion to the effect that said Avenue is a national highway was
made, for the first time, in its motion for reconsideration of the decision of the
Court of Appeals. Such assertion raised, therefore, a question of fact, which had
not been put in issue in the trial court, and cannot be set up, for the first time, on
appeal, much less after the rendition of the decision of the appellate court, in a
motion for the reconsideration thereof.
At any rate, under Article 2189 of the Civil Code, it is not necessary for the
liability therein established to attach that the defective roads or streets belong to
the province, city or municipality from which responsibility is exacted. What said
article requires is that the province, city or municipality have either "control or
supervision" over said street or road. Even if P. Burgos Avenue were, therefore,
a national highway, this circumstance would not necessarily detract from its
"control or supervision" by the City of Manila, under Republic Act 409. In fact
Section 18(x) thereof provides:
Sec. 18. Legislative powers. — The Municipal Board shall have the following
legislative powers:
xxx     xxx     xxx
(x) Subject to the provisions of existing law to provide for the laying out,
construction and improvement, and to regulate the use of streets, avenues,
alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to
provide for lighting, cleaning, and sprinkling of streets and public places; . . . to
provide for the inspection of, fix the license fees for and regulate the openings in
the same for the laying of gas, water, sewer and other pipes, the building and
repair of tunnels, sewers, and drains, and all structures in and under the same
and the erecting of poles and the stringing of wires therein; to provide for and
regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales
upon the streets and other public places; to provide for the abatement of
nuisances in the same and punish the authors or owners thereof; to provide for
the construction and maintenance, and regulate the use, of bridges, viaducts
and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and
other amusements which may annoy persons using the streets and public
places, or frighten horses or other animals; to regulate the speed of horses and
other animals, motor and other vehicles, cars, and locomotives within the limits
of the city; to regulate the lights used on all vehicles, cars, and locomotives; . . .
to provide for and change the location, grade, and crossing of railroads, and
compel any such railroad to raise or lower its tracks to conform to such
provisions or changes; and to require railroad companies to fence their property,
or any part thereof, to provide suitable protection against injury to persons or
property, and to construct and repair ditches, drains, sewers, and culverts along
and under their tracks, so that the natural drainage of the streets and adjacent
property shall not be obstructed.
This authority has been neither withdrawn nor restricted by Republic Act No. 917
and Executive Order No. 113, dated May 2, 1955, upon which the City relies.
Said Act governs the disposition or appropriation of the highway funds and the
giving of aid to provinces, chartered cities and municipalities in the construction
of roads and streets within their respective boundaries, and Executive Order No.
113 merely implements the provisions of said Republic Act No. 917, concerning
the disposition and appropriation of the highway funds. Moreover, it provides
that "the construction, maintenance and improvement of national primary,
national secondary and national aid provincial and city roads shall be
accomplished by the Highway District Engineers and Highway City Engineers
under the supervision of the Commissioner of Public Highways and shall be
financed from such appropriations as may be authorized by the Republic of the
Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the
control or supervision of the City of Manila and whether the latter is guilty of
negligence, in connection with the maintenance of said road, which were
decided by the Court of Appeals in the affirmative, is one of fact, and the
findings of said Court thereon are not subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed,

with costs against the City of Manila. It is so ordered.
1äwphï1.ñët
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. PERFECTO R. PALACIO, as Judge of the Court of First Instance of
Camarines Sur,
MACARIO M. OFILADA, as ex-officio Sheriff of Manila, and ILDEFONSO
ORTIZ, respondents.

Office of the Solicitor General for petitioner.

Luis Contreras for respondents.

REYES, J.B.L., J.:

This is a petition for review of the decision of the Court of Appeals (in CA-G.R.
No. 30915), dismissing the original action for certiorari and prohibition filed with
said Court by herein petitioner Republic of the Philippines, to restrain the
enforcement of a writ of execution (issued by the Court of First Instance of
Camarines Sur in its Civil Case No. 4886) on the trust fund in the account of the
Irrigation Service Unit with the Philippine National Bank.

There is no controversy as to the following facts:

On April 2, 1960, Ildefonso Ortiz instituted in the Court of First Instance of
Camarines Sur Civil Case No. 4886, against the Handong Irrigation Association,
Inc., a corporation with principal place of business in Libmanan, Camarines Sur,
and the Irrigation Service Unit, an office or agency under the Department of
Public Works and Communications, to recover possession, with damages, of a
958 square meter-lot located in Handong, San Juan, Libmanan, Camarines Sur,
which the Irrigation Association allegedly entered and occupied, at the instance
of its co-defendant. For failure to appear and answer the complaint, therein
defendant Irrigation Service Unit was declared in default.
On June 3, 1960, the Republic of the Philippines, through the Solicitor General,
moved for the dismissal of the complaint, claiming that defendant Irrigation
Service Unit has no juridical personality to sue and be sued. By order of June
11, 1960, this motion was denied, on the ground that the said defendant
although a mere agency of the Republic of the Philippines, is engaged in the
private business of selling irrigation pumps and construction materials on
installment plan. The Solicitor General's motion for reconsideration of the
aforesaid order was also denied on July 19, 1960. No appeal appears to have
been taken.
On January 29, 1962, the Solicitor General was served with copy of the writ of
execution issued by the court against the defendants in the above-mentioned
civil case; and, on February 16, 1962, an order of garnishment was served by
the Sheriff of Manila against the deposits and/or pump irrigation trust fund in the
account of the Irrigation Service Unit at the Philippine National Bank, Manila, to
cover the sum of P14,874.40.1
On March 8, 1962, the Solicitor General, on behalf of the Republic of the
Philippines, filed with the lower court an urgent motion to lift the order of
garnishment, for the reason that the funds subject matter thereof are public
funds and exempt from attachment or execution. Upon denial of this motion, as
well as of the motion for reconsideration of said denial, the Solicitor General
commenced the present certiorari and prohibition proceeding in the Court of
Appeals. 1ªvvphi1.nêt
In its decision of August 21, 1962, the appellate court sustained the propriety of
the disputed garnishment-order, and dismissed the Government's petition, on
the basis of the finding by the trial court that the Irrigation Service Unit, "formerly
an office under the Department of Agriculture and Natural Resources created by
virtue of a 'Memorandum of Agreement on the Irrigation Pump Program of the
Philippines', signed by the Chairman of the PHILCUSA (now NEC), Chief of the
MSA Mission (now AID) and the Secretary of Agriculture and Natural
Resources, and presently under the Department of Public Works and
Communications to which it was transferred", is engaged in a private business
of purchase and sale of irrigation pumps and systems. Consequently, according
to the Court of Appeals, and following the ruling in the case of National Airports
Corporation vs. Teodoro, et al., L-5122, April 30, 1952 (91 Phil. 203), by thus
engaging in private business, the Government, through the Irrigation Service
Unit, had actually consented to the suit. Hence, the present petition for review
filed by the Republic of the Philippines.
The issue presented by this case is whether or not the pump irrigation trust fund,
deposited with the Philippine National Bank in the account of the Irrigation
Service Unit, may be garnished to satisfy a money-judgment against the latter.
This issue in turn calls for a determination of the nature of said trust fund, i.e.,
whether it is a fund belonging to the National Government (which was not a
party to Civil Case No. 4886), as maintained by herein petitioner, or purely the
proceeds of a private venture by the government, as claimed by the
respondents.
For a better understanding of the nature, function and operation of the Irrigation
Service Unit (ISU) which is necessary for the proper resolution of the issue
herein involved, it is worthwhile to recall that this office was originally created
under the Department of Agriculture and Natural Resources by virtue of a
Memorandum Agreement between the governments of the Philippines and the
United States, dated August 13, 1952. It was later transferred to the Department
of Public Works and Communications as an office directly under the Office of the
Secretary, "to prosecute to completion the rehabilitation of pump systems
transferred from the former Irrigation Pump Administration of the Department of
Agriculture and Natural Resources,2 including the settlement of the obligations of
said administration." The budgetary requirements to carry out the objectives of
the project were to be financed by withdrawals from the Counterpart Fund-
Special Account. (Memorandum Agreement of June, 1954.)
This Counterpart Fund-Special Account referred to above was established in the
Central Bank by the Government of the Philippines and made up of deposits in
pesos commensurate with the indicated dollar cost to the Government of the
United States of economic and technical assistance made available to the
Philippines, pursuant to the Bilateral Agreement between the Philippines and the
United States of April 27, 1951; of deposits accruing to it (Philippine
government) from the sale of commodities or services supplied under the
Agreement or otherwise accruing to it as a result of the import of such
commodities or service; and of any advance deposits which the Philippine
government may make in the Special Account (Sec. 1, paragraphs 2[a], [b] and
[c], Annex to Memo. Agreement of April 27, 1951). Later, on the basis of a
supplemental agreement (No. 2, Counterpart Project No. 409 — Pump
Irrigation), the Pump Irrigation Trust Fund was established in the Philippine
National Bank, to which all authorized releases to the ISU 3 from the Counterpart
Fund — Special Account, to finance the peso-cost of the Irrigation Pump
Project, were transferred. This is the fund on which the disputed writ of
execution for money judgment rendered against the ISU, is being enforced.
A reading of the records and documents submitted to the Court of Appeals will
readily show that the sales of irrigation pumps to farmers by ISU are governed
by the terms of the Supplemental Agreement No. 2 to Counterpart Project No.
409 (signed by representatives of the Philippine and U. S. governments)
hereunder copied in full:
C. Disposition of Proceeds from Payments under Contracts of Sale
1. Under the Guiding Principles of the Irrigation Pump Project, pumps are sold to
farmers' associations under conditional sales contracts. Periodic payments to
ISU by each association are required. The total payment required under the
contract is stated in the contract and is equal to the sum of (a) the landed cost of
equipment at the installation site, (b) the cost of installation and construction
including survey and design, (c) the cost of fuel and oil financed for the first crop
season, if any, (d) ten per cent of the total of a and b to cover the cost of
administration, technical assistance furnished by the ISU, inspection and
collection, and (e) the compensating use tax to the Philippine Government.
Interest is also payable under each contract at the rate of six percent per annum
on any unpaid balance of the total amount of the contract.
2. All principal and interest payments received by the ISU from farmers'
associations shall be deposited immediately in the Trust Fund. The separate
account established by the project agreement for Counterpart Project 409,
entitled "Irrigation Pump Sales Proceeds Account" is hereby abolished and any
deposits therein will be immediately transferred to the Trust Fund.
3. Whenever the total value of all deposits made to the Trust Fund from contract
principal and interest payments exceeds the value of total releases made to the
Trust Fund from the Counterpart Fund-Special Account, these excess deposits
shall be transferred from the Trust Fund to the Counter Fund-Special Account.
Such transfers shall be considered as "proceeds of sale" and "advance
deposits" as provided in Annex Section 1, (b) and (c) of the Bilateral Agreement
between the Republic of the Philippines and the United States of America.
It was also provided therein that the payments by the farmers' associations on
conditional sales agreements specified in paragraph C-2, above, will be
considered in the preparation, and shall form part, of the ISU annual budget,
which will finance the costs of supply and equipment purchases, the installation
and construction of pump units, and the operating expenses of ISU for which
appropriated funds are not available. (Para. B-1).
It is clear from the foregoing that the ISU is not only an office in the Government
of the Republic of the Philippines, created to promote a specific economic policy
of said government, but also that its activity (of selling irrigation pumps to
farmers on installment basis) is not intended to earn profit or financial gain to its
operator. The mere fact that interests are being collected on the balance of the
unpaid cost of the purchased pumps does not convert this economic project of
the government into a corporate activity. As previously pointed out, the
installment payments and interests receivable from the farmers are to be used to
replenish the counterpart funds utilized in furtherance of the operation of the
project.
Although evidently acknowledging the nature of the Pump Irrigation Trust Fund
as a public fund, the Court of Appeals nevertheless sustained the garnishment
order, on the ground that the ISU, by engaging in the private business of
purchasing and selling irrigation pumps on installment basis, has waived its
governmental immunity and, by implication, consented to the suit.
It is apparent that this decision of the Court of Appeals suffers from the
erroneous assumption that because the State has waived its immunity, its
property and funds become liable to seizure under the legal process. This
emphatically is not the law (Merritt vs. Insular Government, 34 Phil. 311).
Even though the rule as to immunity of a state from suit is relaxed, the power of
the courts ends when the judgment is rendered. Although the liability of the state
has been judicially ascertained, the state is at liberty to determine for itself
whether to pay the judgment or not, and execution can not issue on a judgment
against the state. Such statutes do not authorize a seizure of state property to
satisfy judgments recovered, and only convey implication that the legislature will
recognize such judgment as final and make provision for the satisfaction thereof.
(49 Am. Jur., Sec. 104, pp. 312-320.)
Judgments against a state, in cases where it has consented to be sued,
generally operate merely to liquidate and establish plaintiff's claim in the
absence of express provision; otherwise they can not be enforced by processes
of law; and it is for the legislature to provide for their payment in such manner as
it sees fit. (59 C.J. sec. 501, p. 331; 81 C.J.S., sec. 232, p. 1343.)

It needs no stressing that to allow the levying under execution of the ISU funds
would amount to diverting them from the purpose originally contemplated by the
P.I.U.S. Bilateral Agreement, and would amount to a disbursement without any
proper appropriation as required by law.

A second infirmity of the decision under appeal originates from its ignoring the
fact that the initial complaint against the Irrigation Service Unit was that it had
induced the Handong Irrigation Association, Inc., to invade and occupy the land
of the plaintiff Ildefonso Ortiz. The ISU liability thus arose from tort and not from
contract; and it is a well-entrenched rule in this jurisdiction, embodied in Article
2180 of the Civil Code of the Philippines, that the State is liable only for torts
caused by its special agents, specially commissioned to carry out the acts
complained of outside of such agent's regular duties (Merritt vs. Insular
Government, supra; Rosete vs. Auditor General, 81 Phil. 453). There being no
proof that the making of the tortious inducement was authorized, neither the
State nor its funds can be made liable therefor.

WHEREFORE, the decision of the Court of Appeals under review is reversed

and set aside, and the order of garnishment issued by the Sheriff of Manila on
the Pump Irrigation Trust Fund in the account of the Irrigation Service Unit, with
the Philippine National Bank, is hereby declared null and void. The writ of
preliminary injunction heretofore issued is made permanent. No costs.
LUIS MA. ARANETA, petitioner,
vs.
ANTONIO R. DE JOYA, respondent.

Araneta, Mendoza & Papa for petitioner.

Jose F. Espinosa for respondent.

CASTRO, J.:p

Petition for review of the decision of the Court of Appeals in CA-G.R. 34277-R ordering Luis Ma. Araneta
(hereinafter referred to as the petitioner) to indemnify Antonio R. de Joya (hereinafter referred to as the
respondent) for one-third of the sum of P5,043.20 which the latter was adjudged to pay the Ace Advertising
Agency, Inc., the plaintiff in the recovery suit below.
Sometime in November 1952 the respondent, then general manager of the Ace
Advertising, proposed to the board of directors  that an employee, Ricardo
1
Taylor, be sent to the United States to take up special studies in television. The
board, however, failed to act on the proposal. Nevertheless, in September 1953
the respondent sent Taylor abroad. J. Antonio Araneta, a company director,
inquired about the trip and was assured by the respondent that Taylor's
expenses would be defrayed not by the company but by other parties. This was
thereafter confirmed by the respondent in a memorandum.
While abroad, from September 1, 1953 to March 15, 1954, Taylor continued to
receive his salaries. The items corresponding to his salaries appeared in
vouchers prepared upon the orders of, and approved by, the respondent and
were included in the semi-monthly payroll checks for the employees of the
corporation. The petitioner signed three of these checks on November 27,
December 15 and December 29, 1953. The others were signed by either the
respondent, or Vicente Araneta (company treasurer) who put up part of the bill
connected with Taylor's trip and also handed him letters for delivery in the
United States. The Ace Advertising disbursed P5,043.20, all told, on account of
Taylor's travel and studies.
On August 23, 1954 the Ace Advertising filed a complaint with the court of first
instance of Manila against the respondent for recovery of the total sum
disbursed to Taylor, alleging that the trip was made without its knowledge,
authority or ratification. The respondent, in his answer, denied the charge and
claimed that the trip was nonetheless ratified by the company's board of
directors, and that in any event under the by-laws he had the discretion, as
general manager, to authorize the trip which was for the company's benefit..
A 3rd-party complaint was also filed by the respondent against Vicente Araneta,
the petitioner and Ricardo Taylor. The respondent proved that Vicente Araneta,
as treasurer of the firm, signed a check representing the company's share of the
transportation expense of Taylor to the United States, and that a series of
payroll checks from September 15, 1953 to December 31, 1953, inclusive, which
included the salaries of Taylor, was signed by Vicente Araneta and the petitioner
who is a vice-president of the company. Both Aranetas disowned any personal
liability, claiming that they signed the checks in good faith as they were
approved by the respondent..
On April 13, 1964 the trial court rendered judgment ordering the respondent to
pay the Ace Advertising "the sum of P5,043.20 with interest at the legal rate
from August 23, 1954 until full payment," and dismissing the 3rd-party
complaint.
The respondent appealed to the Court of Appeals, which on August 2, 1965,
rendered a decision affirming the trial court's judgment in favor of the Ace
Advertising but reversing the dismissal of the 3rd-party complaint. The appellate
court found as a fact that Taylor's trip had been neither authorized nor ratified by
the company.
The appellate court's full statement of its categorical and unequivocal findings of
fact on the nature and extent of the participation of the petitioner as well as
Vicente Araneta is hereunder quoted:
The evidence not only is clear, but is even not disputed at all by Vicente and
Luis Araneta who neither of them took the witness stand to refute appellant's
evidence, that as to Vicente it was to him that appellant first broached the
subject-matter of sending Taylor to America, that Vicente Araneta evinced
unusual interest, and went to the extent of entrusting Taylor with letters for
delivery to certain principals of Gregorio Araneta, Inc. in the United States, and
he even signed the check for P105.20 to cover expenses for his tax clearance,
documentary stamps and passport fees, in connection with the trip, on 8
September, 1953, and then on 5 October, 1953, still another check for P868.00
which was half the amount for his plane ticket; and as to Luis Araneta, it not at
all being disputed that when Taylor was already in America, his salaries while
abroad were paid on vouchers and checks signed either by him or by Vicente, or
by appellant himself; because of all these, the conclusion is forced upon this
Court that it could not but have been but that both Vicente and Luis were
informed and gave their approval to Taylor's trip, and to the payment of his trip
expenses and salaries during his absence, from corporate funds; if this was the
case as it was, there can be no question but that they two were also privy to the
unauthorized disbursement of the corporate moneys jointly with the appellant;
what had happened was in truth and in fact a venture by them given their stamp
of approval; and as it was an unauthorized act of expenditure of corporate funds,
and it was these three without whose acts the same could not have happened,
the juridical situation was a simple quasi-delict by them committed upon the
corporation, for which solidary liability should have been imposed upon all in the
first place, Art. 2194, New Civil Code; and only De Joya having been sued and
made liable by the corporation, it was the right of the latter to ask that his two
joint tortfeasors be made to shoulder their proportional responsibility. (emphasis
supplied)
The basic legal issue is whether the petitioner is guilty of a quasi-delict as held
below.

It is our view, and we so hold, that the judgment of the Court of Appeals should
be upheld. The petitioner's assertion that he signed the questioned payroll
checks in good faith has not been substantiated, he in particular not having
testified or offered testimony to prove such claim. Upon the contrary, in spite of
his being a vice-president and director of the Ace Advertising, the petitioner
remained passive, throughout the period of Taylor's stay abroad, concerning the
unauthorized disbursements of corporate funds for the latter. This plus the fact
that he even approved thrice payroll checks for the payment of Taylor's salary,
demonstrate quite distinctly that the petitioner neglected to perform his duties
properly, to the damage of the firm of which he was an officer. The fact that he
was occupying a contractual position at the Ace Advertising is of no moment.
The existence of a contract between the parties, as has been repeatedly held by
this Court, constitutes no bar to the commission of a tort by one against the
other and the consequent recovery of damages. 2

ACCORDINGLY, the judgment of the Court of Appeals is affirmed, at petitioner's

cost.
FELIX LANUZO, plaintiff-appellee,
vs.
SY BON PING and SALVADOR MENDOZA, defendants-appellants.

MELENCIO-HERRERA, J.:

Appeal certified to Us by the Court of Appeals   as it involves pure legal

1

questions.
On November 25, 1969, a Complaint for damages was instituted in the Court of
First Instance of Camarines Sur (Civil Case No. 6847) by plaintiff Felix Lanuzo
against Sy Bon Ping, the owner and operator of a freight truck bearing Plate No.
T-57266, and his driver, Salvador Mendoza. As alleged therein, at about five
o'clock in the afternoon of July 24, 1969, while Salvador Mendoza was driving
the truck along the national highway in the Barrio of San Ramon, Nabua,
Camarines Sur, and because of his reckless negligence, we rammed into the
residential house and store of plaintiff. As a result, the house and store were
completely razed to the ground causing damage to plaintiff in the total amount of
P13,000.00. Plaintiff averred that by reason thereof he became destitute as he
lost his means of livelihood from the store which used to give him a monthly
income of P300.00.
The defendants moved to dismiss on the ground that another action, Criminal
Case No. 4250 for Damage to Property through Reckless Imprudence, was
pending in the Municipal Court of Nabua, Camarines Sur, between the same
parties for the same cause. Plaintiff opposed the dismissal stressing that he had
made an express reservation in the criminal case to institute a civil action for
damages separate and distinct from the criminal suit.
The lower Court denied the Motion to Dismiss for lack of merit.
On August 13, 1970, the trial Court rendered a default judgment in plaintiff's
favor, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered (a) ordering the defendants to pay
jointly and severally the amount of P13,000.00 as damages, resulting to the loss
of the store including the merchandise for sale therein, the residential house of
mixed materials, furnitures, clothing and households fixtures; (b) ordering the
said defendants to pay jointly and severally P300.00 monthly from July 24, 1969
which represents plaintiff's monthly income from his store until the whole amount
of P13,000.00 is fully paid; and (c) for attorney's fees an amount equivalent to
20% of the total amount claimed by the plaintiff, plus the costs of this suit.
Defendants' "Motion for Reconsideration and/or New Trial and To Set Aside
Order of Default" was denied.
Upon elevation by the defendants of the case to the Court of Appeals (CA-G.R.
No. 48399-R) they urged that the civil action was prematurely instituted in view
of Rule 111, section 3, providing in part that "after the criminal action has been
commenced the civil action cannot be instituted until final judgment has been
rendered in the criminal action." Additionally, they contended that even
assuming their liability, the lower Court nevertheless committed an error in
holding them jointly and severally liable.
On February 20, 1980, the Court of Appeals certified the case to this instance on
pure questions of law.
We start from the fundamental premise, clearly enunciated as early as the case
of Barredo vs. Garcia, et al.,   that:
2
A distinction exists between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa-extracontractual. The same negligent act
causing damages may produce civil liability arising from a crime under article
100 of the Revised Penal Code, or create an action for cuasi-delito or culpa
extracontractual under articles 1902-1910 of the Civil Code. Plaintiffs were free
to choose which remedy to enforce.
Plaintiff's reservation before the Municipal Court in the criminal case of his right
to institute a civil action separately is quoted hereunder in full:
UNDERSIGNED offended party in the above-entitled case before this Honorable
Court respectfully alleges:
1. That this action which was commenced by the Chief of Police included in the
complaint the claim of the undersigned for civil liability;
2. That the undersigned is reserving his right to institute the civil action for
damages, docketed as Civil Case No. 6847 of the Court of First Instance of
Camarines Sur, against accused herein and his employer;
WHEREFORE, it is respectfully prayed that reservation be made of record
therein and that the civil aspect of the above-entitled case be not included
herein.
xxx xxx xxx 3
The terms of plaintiff's reservation clearly and unmistakably make out a case for
quasi-delict. This is also evident from the recitals in plaintiff's Complaint averring
the employer-employee relationship between the appellants, alleging that
damages to the house and store were caused by the fact that Salvador
Mendoza had driven the truck "recklessly, with gross negligence and
imprudence, without observance of traffic rules and regulations and without
regard to the safety of persons and property", and praying that appellants be WHEREFORE, the appealed decision is hereby affirmed. Costs against
held jointly and solidarity liable for damages. These are, basically, what should defendants-appellants.
be alleged in actions based on quasi-delict.  4

SO ORDERED.
As it is quite apparent that plaintiff had predicated his present claim for damages
on quasi-delict, he is not barred from proceeding with this independent civil suit.
The institution of a criminal action cannot have the effect of interrupting the civil
action based on quasi-delict.   And the separate civil action for quasi-delict may
5

proceed independently and regardless of the result of the criminal case,   except
6

that a plaintiff cannot recover damages twice for the same act or commission of
the defendant. 7

The civil action referred to in Sections 3(a) and (b) of Rule 111 of the Rules of
Court, which should be suspended after the institution of the criminal action, is
that arising from delict, and not the civil action based on quasi-delict or culpa
aquiliana.

We come now to the subject of liability of the appellants herein. For his own
negligence in recklessly driving the truck owned and operated by his employer,
the driver, Salvador Mendoza, is primarily liable under Article 2176 of the Civil
Code. On the other hand, the liability of his employer, Sy Bon Ping, is also
primary and direct under Article 2180 of the same Code, which explicitly
provides:

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

For failure of the appellant Sy Bon Ping to rebut the legal presumption of his
negligence in the selection and supervision of this employee,   he is likewise
8

responsible for the damages caused by the negligent act of his employee
(driver) Salvador Mendoza, and his liability is primary and solidary.

... What needs only to be alleged under the aforequoted provision (Article 2180,
Civil Code) is that the employee (driver) has, by his negligence (quasi-delict)
caused damage to make the employer, likewise, responsible for the tortious act
of the employee, and his liability is, as earlier observed, primary and solidary 9

But although the employer is solidarity liable with the employee for damages, the
employer may demand reimbursement from his employee (driver) for whatever
amount the employer will have to pay the offended party to satisfy the latter's
claim. 
10
 PRIMA MALIPOL, in her own behalf and as guardian ad litem of her minor children,
LYDIA MALIJAN, JOSEFINA MALIJAN, TEODORA MALIJAN, and SEBASTIAN
MALIJAN, plaintiffs-appellees, vs. LILY LIM TAN and ERNESTO LABSAN, Defendants-
Appellants.

Edgardo Moncada for plaintiffs-appellees.

Achacoso, Ocampo and Simbulan for defendants-appellants.

ZALDIVAR, J.:chanrobles virtual law library

Appeal on questions of law from the decision dated July 1, 1966, a judgment by default,
and from the order dated October 10, 1966, of the Court of First Instance of Batangas in
its Civil Case No. 1732 which denied defendants-appellants' motion to lift the order of
default and for a new trial and which considered the judgment by default as standing with
full force and effect.chanroblesvirtualawlibrarychanrobles virtual law library
In the evening of February 6, 1965, at about 8:35 o'clock, Pantaleon Malijan, who was
walking with his companion Leonardo Amante on the shoulder of the road in Barrio San
Felix, Sto. Tomas, Batangas, was hit by a gasoline tanker and was thrown to the ground.
While he was sprawling on the ground Malijan was run over by the tanker's right wheel
that got detached from its axle. Malijan's companion, with the aid of the barrio captain,
brought Malijan to the San Pablo City Hospital where he died that same night, the cause
of death being "possible traumatic cerebral hemorrhage due to vehicular
accident."chanrobles virtual law library
The gasoline tanker with Plate No. T-52573, series of 1964, driven at the time of the
accident by herein appellant Ernesto Labsan, was being used in connection with the
gasoline business of the owner, the herein appellant Lily Lim
Tan.chanroblesvirtualawlibrarychanrobles virtual law library
Representations and demands for payment of damage having been ignored by
appellants, appellees filed on May 18, 1966 a complaint in the Court of First Instance of
Batangas praying that appellants be condemned to pay, jointly and severally, the
damages as specified in said complaint. The appellees are the mother and the minor
brothers and sisters of the deceased Pantaleon
Malijan.chanroblesvirtualawlibrarychanrobles virtual law library
Appellants were duly served with summons on May 19, 1966, but they failed to file their
answer within the reglementary period. Upon appellees' motion of June 8, 1966 the trial
court, in an order dated June 10, 1966, declare the appellants in default, and appellees
were permitted to present their evidence in the absence of the appellants. The trial court
rendered a decision, dated July 1, 1966, the dispositive portion of which reads as
follows:
WHEREFORE, finding the averments in the complaint as supported by
the evidence to be reasonable and justified, judgment is hereby
rendered in favor of the plaintiffs and against the defendants. The
defendant driver, Ernesto Labsan, is ordered (1) to pay the sum of
P2,100.00 to the plaintiffs for expenses for hospitalization, medical
treatment, vigil and burial of Pantaleon Malijan; (2) to pay to the
plaintiffs the sum of P6,000.00 for the death of said victim; (3) to pay to
the plaintiffs the sum of P20,000.00 for the loss of earnings of said
deceased for a period of five years; (4) to pay to the plaintiffs the sum of
P5,000.00 for moral damages; (5) to pay to the plaintiffs the sum of
P2,000.00 for attorney's fees and P500.00 for incidental and litigation
expenses; and (6) to pay the costs of the suit. Should Ernesto Labsan
not be able to pay the foregoing damages, they shall be paid for by
defendant Lily Lim Tan, who by law, being the owner and operator of
the gasoline tanker that featured in the accident, is subsidiarily liable.
Copy of the decision was received by the appellees August on 23,
1966.chanroblesvirtualawlibrarychanrobles virtual law library
A motion for execution was filed on August 26, 1966 by appellees but the trial court held
its resolution in abeyance until September 22, 1966 when the judgment would become
final.chanroblesvirtualawlibrarychanrobles virtual law library
On September 21, 1966 appellants filed a verified motion to lift the order of default and
for a new trial, alleging that they were deprived of their day in court when the order of
default was issued and a decision rendered after; that they had good and valid defenses,
namely: (a) that the accident which gave rise to the case was due to force majeure; (b)
that appellant Ernesto Labsan was without fault in the accident that gave rise to the
case; and (c) that appellant Lily Lim Tan had exercised the due diligence required of a
good father of a family to prevent damage. Finding said motion to be without merit, the
trial court denied the same on October 10, 1966. Hence, this appeal wherein appellants
made assignment of errors, as follows:
(a) The trial court erred in finding that appellants took the complaint for
granted by reason of the fact that appellants referred to their lawyer the
complaint for answer only after the lapse of eleven (11) days from
receipt thereof ;chanrobles virtual law library
(b) The trial court erred in not holding that the mistake committed by the
late Atty. Daniel Chavez in giving the wrong date of receipt by
appellants of the summons and the complaint to Atty. Romulo R. de
Castro on June 10, 1966 due to the abnormal mental condition of the
late Atty. Daniel Chavez on June 10, 1966 which thereafter resulted in
the commission of suicide by the latter on June 17, 1966, constitutes
the mistake and accident in law which warrant the relief from default
and the granting of the new trial;chanrobles virtual law library
(c) The trial court erred in not holding that the fact that appellants,
through Atty. Romulo R. de Castro, filed on June 10, 1966 a motion for
extension of time to file answer, and thereafter actually did file their
answer to the complaint on June 20, 1966 wherein they alleged good,
valid and meritorious defenses against the claim of plaintiffs in the
complaint, should warrant favorable consideration of appellants' motion
to lift order of default and for new trial; andchanrobles virtual law library
(d) The trial court erred in not holding that the fact that appellants'
motion to lift order of default and for new trial.
1. In support of their first assignment of error, counsel for appellants contends that the
finding of the trial court, that the appellants took the complaint for granted when they
referred the complaint to their lawyer only on the eleventh day after receipt thereof, was
unwarranted, because appellants had 15 days from receipt of the summons and
complaint to answer and their lawyer, the late Atty. Daniel Chavez, after the complaint
was referred to him on the eleventh day, had still four days to file the answer, which he
could very well do inasmuch as he was well acquainted with the facts because he was
the lawyer of appellant Ernesto Labsan in Criminal Case No. 2200 of Court of First
Instance of Batangas for homicide thru reckless imprudence - which case arose from the
very accident subject of appellees' complaint; that appellant Lily Lim Tan, furthermore,
had instructed her employee, Eleuterio Dizon, to handcarry the summons and to deliver
it to nobody except to Atty. Chavez; that Atty. Chavez, in a distance telephone
conversation with appellant Lily Lim Tan, assured the latter that he would attend to the
complaint.chanroblesvirtualawlibrarychanrobles virtual law library
We do not find merit in the contention of counsel for appellants. It is within the sound
discretion of the court to set aside an order of default and to permit a defendant to file his
answer and to be heard on the merits even after the reglementary period for the filing of
the answer has expired, but it is not error, or an abuse of discretion, on the part of the
court to refuse to set aside its order of default and to refuse to accept the answer where
it finds no justifiable reason for the delay in the filing of the answer. In the motions for
reconsideration of an order of default, the moving party has the burden of showing such
diligence as would justify his being excused from not filing the answer with the
reglementary period as provided by the Rules of Court, otherwise these guidelines for an
orderly and expeditious procedure would be rendered meaningless.  1 Unless it is shown
clearly that a party has justifiable reason for the delay the court will not ordinarily
exercise its discretion in his favor. 2chanrobles virtual law library
In the instant case, We agree with the trial court that appellants have not shown that they
exercised such diligence as an ordinary prudent person would exercise, to have the
answer filed within the reglementary period. Appellant Lily Lim Tan admitted in her
affidavit 3 that she received the summons and copy of the complaint on May 19, 1966,
and that having read the complaint she found out that she was being sued, together with
her driver, for damages in connection with the accident of February 6, 1965 at Sto.
Tomas, Batangas. The damages asked in the complaint amounts to P36,600.00. The
summons required them to answer the complaint within 15 days from receipt thereof,
and warned them that should they fail to answer within said period the plaintiffs would
take judgment against them for the relief demanded in the complaint. The damages
demanded was not a negligible sum, and appellant Lily Lim Tan, who is a business
woman, should have considered the matter a serious one. Ordinary prudence would
dictate that she should concern herself about the matter, that she should refer said
complaint with the least possible delay to her lawyer. But, for reasons she did not
explain, she referred the complaint to her lawyer only after the lapse of ten (10) days
from receipt thereof, i.e., on May 30, 1966. She should have considered that four days
might not be sufficient time for her lawyer to prepare and file the
answer.chanroblesvirtualawlibrarychanrobles virtual law library
Appellants, however, contend that their lawyer, Atty. Chavez, could very well prepare the
answer within the remaining four days of the reglementary period, for he was conversant
with the facts of the case. Be that as it may, the fact was that Atty. Chavez failed to file
the answer. Because Atty. Chavez assured her, in their long distance telephone
conversation that he would take care the complaint, appellant Lily Lim Tan took for
granted that the answer would be filed on time. Said appellant should have checked
before the expiration of the period for filing the answer whether the complaint was really
taken care of, or not. But this, appellant Lily Lim Tan failed to do, and this is another
instance showing her lack of concern over the complaint. There was, therefore, no
showing of due diligence on the part of appellants which would excuse their failure to file
their answer on time. There is no showing either that the other appellant, Ernesto
Labsan, had taken any step to have an answer filed in his behalf - evidently he was
relying on his employer.chanroblesvirtualawlibrarychanrobles virtual law library
2. In support of the second assignment of error, appellants contend that the facts show
that on June 10, 1966, Atty. Chavez, who was then acting strangely, endorsed the
summons and complaint to Atty. Romulo R. de Castro; that upon inquiry by Atty. de
Castro from Atty. Chavez the latter informed him that the summons was served on
appellants on May 30, 1966; that appellant Lily Lim Tan, who was assured by Atty.
Chavez in their long distance telephone conversation that the complaint would be
attended to, could not, by the exercise of ordinary diligence, have foreseen, and avoided,
the circumstance that at the time she referred the summons to Atty. Chavez, the latter
was already in an abnormal condition which later resulted in his committing suicide on
June 17, 1966; that it was Atty. Chavez's abnormal condition and his having given to
Atty. de Castro the wrong date of the receipt of the summons by the appellees that
caused the delay in the filing of the answer; that said circumstances constituted mistake
and accident which entitled appellants to relief from default and a grant of new
trial.chanroblesvirtualawlibrarychanrobles virtual law library
Appellants' contention that the delay in filing the answer was due to mistake and accident
is untenable.chanroblesvirtualawlibrarychanrobles virtual law library
The mistake, according to appellants, consisted in Atty. Chavez's having told Atty. de
Castro on June 10, 1966 that appellants received the summons and complaint on May
30, 1966. Even if Atty. Chavez had told Atty. de Castro the correct date, that is, that
appellants received the summons on May 19, 1966, the answer could not have been
filed on time by Atty. de Castro, because the reglementary period for filing the answer
expired on June 3, 1966, and it was already June 10, 1966, when the complaint was
endorsed by Atty. Chavez to Atty. de Castro.chanroblesvirtualawlibrarychanrobles virtual
law library
The accident, according to appellants' counsel, consisted in Atty. Chavez's being in an
abnormal condition at the time the complaint was given to him on May 30, 1966. This
claim of appellants is not supported by the record.chanroblesvirtualawlibrarychanrobles
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The record does not show that Atty. Chavez was suffering from an abnormal mind on
May 30, 1966. His actuations on May 30 were those that could be expected of a normal
person. Atty. Chavez asked the employee of appellant Lily Lim Tan about the date when
his employer received the summons and complaint, and because the employee could
not give him the desired information Atty. Chavez placed a long distance telephone call
to appellant Lily Lim Tan to ask about said date. This action of Atty. Chavez showed that
he was very much aware that the reglementary period within which the answer should be
filed was to be computed from the date of the receipt of the summons and the complaint.
It also showed that Atty. Chavez knew the easiest and the most practical means to get
the information that he needed - that was by a long distance telephone call to his client,
Lily Lim Tan. These actuations of Atty. Chavez showed that he knew the importance of
the matter at hand, and he was exercising the ordinary and reasonable care over the
interests of his client. These specific actions of Atty. Chavez indicated that as of May 30,
1966 he had a sound mind.chanroblesvirtualawlibrarychanrobles virtual law library
It is claimed by appellants that on June 10, 1966 Atty. Chavez endorsed the complaint to
Atty. de Castro, and told the latter that the summons and complaint were received by the
appellants on May 30, 1966. It is further claimed by appellants that this information given
by Atty. Chavez - that the summons and complaint were received by the appellants on
May 30, 1966 - was the mistake that caused the delay of the filing of the answer. But it
should be noted that on June 10, 1966 when Atty. Chavez endorsed the complaint to
Atty. de Castro and informed the latter that the summons and complaint were received
by the appellants on May 30, 1966, the period within which the answer should be filed
had already expired - the expiry date being June 3, 1966. There is no showing that
between May 30, when Atty. Chavez received the summons and complaint from the
employee of Lily Lim Tan, and June 3, 1973 Atty. Chavez was incapacitated to file the
answer. And so it is clear that before the case was endorsed to Atty. de Castro, the
appellants were already in default. The failure to file the answer on time may well be
attributed to the mistake or "negligence of Atty. Chavez. The appellants are bound by the
mistakes, and may suffer by the negligence, of their lawyer. In fact, on June 8, 1966, or
two days before Atty. Chavez endorsed the case to Atty. de Castro, the appellees had
filed a motion in court to declare the defendants (now the appellants) in default. The
moves taken by Atty. de Castro - in filing a motion for extension of time to file an answer
on June 10, 1966, and in finally filing an answer on June 20, 1966 - were already
late.chanroblesvirtualawlibrarychanrobles virtual law library
The fact that Atty. Chavez committed suicide on June 17, 1966 does not necessarily
prove that he was abnormal, incompetent or insane on May 30, 1966. Although there is a
judicial declaration that a sane man would not commit suicide, cognizance is
nevertheless taken of the fact that circumstances at some given time may impel a person
to commit suicide. 4 The probative value of suicide in determining the sanity of a person
is dependent on the factual situation in each case. Such matters as the reasons for the
act of self-destruction, the circumstances indicating the person's state of mind at the
time, and other pertinent facts must be considered. The appellants had not indicated to
the trial court any circumstance from which the trial court could form an opinion of the
mental condition of Atty. Chavez before he committed suicide. The trial court, therefore,
did not err when it did not favorably consider the claim of the appellant that their failure to
file their answer to the complaint was due to accident or mistake, as contemplated in
Section 3 of Rule 18 of the Rules of Court.chanroblesvirtualawlibrarychanrobles virtual
law library
3. In support of the third assignment of error, appellants argue that acting on the wrong
information given by Atty. Chavez, Atty. Romulo de Castro filed on June 10, 1966 a
motion for an extension of 20 days within which to file an answer and that he did file the
answer with good, valid and meritorious defenses on June 20, 1966; that on June 27,
1966 when appellees were allowed to present their evidence ex-parte, the motion for
extension of time and the answer already formed part of the records of the case; that
inasmuch as the late filing of the answer was due to accident and mistake, and
appellants had good, valid, and meritorious defenses, the motion to lift the order of
default and for new trial should have been favorably considered by the court.  5chanrobles
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Let it be noted that the lower court rendered its decision on July 1, 1966, and the
appellees received notice of said decision on August 23, 1966. The decision would have
become final on September 22, 1966. On September 21, 1966 the appellants filed their
motion to lift the order of default and for new trial. The motion of the appellants therefore,
was in the nature of a motion for a new trial based on fraud, accident, mistake or
excusable negligence under paragraph (a) of Section 1 of Rule 37 of the Rules of Court.
Under Section 2 of said Rule 37 the moving party must show that he has a meritorious
defense. The facts constituting the movant's good and substantial defense, which he
may prove if the petition were granted, must be shown in the affidavit which should
accompany the motion for a new trial. 6 In the instant case, the motion to lift the order of
default and for new trial as well as the affidavit of merits accompanying the motion did
not contain clear statements of the facts constituting a good and valid defense which the
appellants might prove if they were given a chance to introduce evidence. The
allegations in the motion that defendants have good and valid defenses, namely: that the
accident which gave rise to the case was force majeure; that defendant Ernesto Labsan
is absolutely without fault in the accident that gave rise to the case; and that defendant
Lily Lim Tan has exercised due diligence required of a good father of a family to prevent
damage 7, are mere conclusions which did not provide the court with any basis for
determining the nature and merit of the probable defense. An affidavit of merit should
state facts, and not mere opinion or conclusions of
law.chanroblesvirtualawlibrarychanrobles virtual law library
Hence the trial court correctly denied the motion to set aside order of default and for new
trial.chanroblesvirtualawlibrarychanrobles virtual law library
We must, however, point out a flaw in the decision of the lower court. It is stated in the
decision appealed from that the driver, Ernesto Labsan, was primarily liable for the
payment of damages adjudged therein, and the appellant Lily Lim Tan, being the owner
and operator of the gasoline tanker that figured in the accident, is subsidiarily liable, that
is, liable only in case Ernesto Labsan was not able to pay. This is not correct. The action
in the instant case was brought not to demand civil liability arising from a crime. The
complaint makes no mention of a crime having been committed, much less of the driver
Ernesto Labsan having been convicted of a crime. But there is an allegation in the
complaint that Ernesto Labsan was the authorized driver of the truck that figured in the
accident, which truck was operated by appellant Lily Lim Tan in connection with her
gasoline business. The prayer in the complaint, furthermore, sought to hold appellants
jointly and solidarily liable for damages. The instant action, therefore, was based, as the
complaint shows, on quasi delict. 8 Under Article 218 of the Civil Code, which treats
of quasi delicts, the liability of the owners and managers of an establishment or
enterprise for damages caused by their employees is primary and direct, not
subsidiary. 9 The employer, however, can demand from his employee reimbursement of
the amount which he paid under his liability. 10 The employer, appellant Lily Lim Tan,
must be held primarily and directly, not subsidiarily, liable for damages awarded in the
decision of the lower court. This is, of course, without prejudice to the right of appellant
Lily Lim Tan to demand from her co-appellant Ernesto Labsan reimbursement of the
damages that she would have to pay to appellees.chanroblesvirtualawlibrarychanrobles
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WHEREFORE, the decision of the Court of First Instance of Batangas, dated July 1,
1966, as modified in accordance with the observations We made in the preceding
paragraph, and the order, dated October 10, 1966, denying appellants' motion for the
lifting of the order of default and for new trial, in Civil Case No. 1732, are affirmed. Costs
against defendants-appellees.chanroblesvirtualawlibrarychanrobles virtual law library

It is so ordered.