dyG.R. No.

164749

ROMULO ABROGAR and ERLINDA ABROGAR, Petitioners

vs
COSMOS BOTTLING COMPANY and INTERGAMES, INC., Respondents

DECISION

BERSAMIN, J.:

This case involves a claim for damages arising from the negligence causing the death of a
participant in an organized marathon bumped by a passenger jeepney on the route of the race. The
issues revolve on whether the organizer and the sponsor of the marathon were guilty of negligence,
and, if so, was their negligence the proximate cause of the death of the participant; on whether the
negligence of the driver of the passenger jeepney was an efficient intervening cause; on whether the
doctrine of assumption of risk was applicable to the fatality; and on whether the heirs of the fatality
can recover damages for loss of earning capacity of the latter who, being then a minor, had no
gainful employment.

The Case

By this appeal, the parents of the late Rommel Abrogar (Rommel), a marathon runner, seek the
review and reversal of the decision promulgated on March l 0, 2004,  whereby the Court of Appeals
1

(CA) reversed and set aside the judgment rendered in their favor on May 10, 1991 by the Regional
Trial Court (RTC), Branch 83, in Quezon City  finding and declaring respondents Cosmos Bottling
2

Company (Cosmos), a domestic soft-drinks company whose products included Pop Cola, and
Intergames, Inc. (Intergames), also a domestic corporation organizing and supervising the 1st Pop
Cola Junior Marathon" held on June 15, 1980 in Quezon City, solidarily liable for damages arising
from the untimely death of Rommel, then a minor 18 years of age,  after being bumped by a
3

recklessly driven passenger jeepney along the route of the marathon.

Antecedents

The CA narrated the antecedents in the assailed judgment,  viz.:

4

[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly with Intergames, organized an
endurance running contest billed as the "1st Pop Cola Junior Marathon" scheduled to be held on
June 15, 1980. The organizers plotted a 10-kilometer course starting from the premises of the
Interim Batasang Pambansa (IBP for brevity), through public roads and streets, to end at the
Quezon Memorial Circle. Plaintiffs' son Rommel applied with the defendants to be allowed to
participate in the contest and after complying with defendants' requirements, his application was
accepted and he was given an official number. Consequently, on June 15, 1980 at the designated
time of the marathon, Rommel joined the other participants and ran the course plotted by the
defendants. As it turned out, the plaintiffs' (sic) further alleged, the defendants failed to provide
adequate safety and precautionary measures and to exercise the diligence required of them by the
nature of their undertaking, in that they failed to insulate and protect the participants of the marathon
from the vehicular and other dangers along the marathon route. Rommel was bumped by a jeepney
that was then running along the route of the marathon on Don Mariano Marcos A venue (DMMA for
brevity), and in spite of medical treatment given to him at the Ospital ng Bagong Lipunan, he died
later that same day due to severe head injuries.
On October 28, 1980, the petitioners sued the respondents in the then Court of First Instance of
Rizal (Quezon City) to recover various damages for the untimely death of Rommel (i.e., actual and
compensatory damages, loss of earning capacity, moral damages, exemplary damages, attorney's
fees and expenses oflitigation).5

Cosmos denied liability, insisting that it had not been the organizer of the marathon, but only its
sponsor; that its participation had been limited to providing financial assistance to Intergames;  that
6

the financial assistance it had extended to Intergames, the sole organizer of the marathon, had been
in answer to the Government's call to the private sector to help promote sports development and
physical fitness;  that the petitioners had no cause of action against it because there was no privity of
7

contract between the participants in the marathon and Cosmos; and that it had nothing to do with the
organization, operation and running of the event. 8

As counterclaim, Cosmos sought attorney's fees and expenses of litigation from the petitioners for
their being unwarrantedly included as a defendant in the case. It averred a cross-claim against
Intergames, stating that the latter had guaranteed to hold Cosmos "completely free and harmless
from any claim or action for liability for any injuries or bodily harm which may be sustained by any of
the entries in the '1st Pop Cola Junior Marathon' or for any damage to the property or properties of
third parties, which may likewise arise in the course of the race."  Thus, Cosmos sought to hold
9

Intergames solely liable should the claim of the petitioners prosper. 10

On its part, Intergames asserted that Rommel's death had been an accident exclusively caused by
the negligence of the jeepney driver; that it was not responsible for the accident; that as the
marathon organizer, it did not assume the responsibilities of an insurer of the safety of the
participants; that it nevertheless caused the participants to be covered with accident insurance, but
the petitioners refused to accept the proceeds thereof;  that there could be no cause of action
11

against it because the acceptance and approval of Rommel's application to join the marathon had
been conditioned on his waiver of all rights and causes of action arising from his participation in the
marathon;  that it exercised due diligence in the conduct of the race that the circumstances called for
12

and was appropriate, it having availed of all its know-how and expertise, including the adoption and
implementation of all known and possible safety and precautionary measures in order to protect the
participants from injuries arising from vehicular and other forms of accidents;  and, accordingly, the
13

complaint should be dismissed.

In their reply and answer to counterclaim, the petitioners averred that contrary to its claims,
Intergames did not provide adequate measures for the safety and protection of the race participants,
considering that motor vehicles were traversing the race route and the participants were made to run
along the flow of traffic, instead of against it; that Intergames did not provide adequate traffic
marshals to secure the safety and protection of the participants;  that Intergames could not limit its
14

liability on the basis of the accident insurance policies it had secured to cover the race participants;
that the waiver signed by Rommel could not be a basis for denying liability because the same was
null and void for being contrary to law, morals, customs and public policy;  that their complaint
15

sufficiently stated a cause of action because in no way could they be held liable for attorney's fees,
litigation expenses or any other relief due to their having abided by the law and having acted
honestly, fairly, in good faith by according to Intergames its due, as demanded by the facts and
circumstances. 16

At the pre-trial held on April 12, 1981, the parties agreed that the principal issue was whether or not
Cosmos and lntergames were liable for the death of Rommel because of negligence in conducting
the marathon. 17

Judgment of the RTC

In its decision dated May 10, 1991,  the RTC ruled as follows:
18

WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo Abrogar and

Erlinda Abrogar and against defendants Cosmos Bottling Company, Inc. and Intergames, Inc.,
ordering both defendants, jointly and severally, to pay and deliver to the plaintiffs the amounts of
Twenty Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱28,061.63) as actual
damages; One Hundred Thousand Pesos (₱100,000.00) as moral damages; Fifty Thousand Pesos
(₱50,000.00) as exemplary damages and Ten Percent (10%) of the total amount of One Hundred
Seventy Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱178,061,63) or Seventeen
Thousand Eight Hundred Six Pesos and Sixteen Centavos (₱17,806.16) as attorney's fees.

On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant Intergames, Inc, is
hereby ordered to reimburse to the former any and all amounts which may be recovered by the
plaintiffs from it by virtue of this Decision.

SO ORDERED.

The RTC observed that the safeguards allegedly instituted by Intergames in conducting the
marathon had fallen short of the yardstick to satisfy the requirements of due diligence as called for
by and appropriate under the circumstances; that the accident had happened because of inadequate
preparation and Intergames' failure to exercise due diligence;  that the respondents could not be
19

excused from liability by hiding behind the waiver executed by Rommel and the permission given to
him by his parents because the waiver could only be effective for risks inherent in the marathon,
such a:s stumbling, heat stroke, heart attack during the race, severe exhaustion and similar
occurrences;  that the liability of the respondents towards the participants and third persons was
20

solidary, because Cosmos, the sponsor of the event, had been the principal mover of the event, and,
as such, had derived benefits from the marathon that in turn had carried responsibilities towards the
participants and the public; that the respondents' agreement to free Cosmos from any liability had
been an agreement binding only between them, and did not bind third persons; and that Cosmos
had a cause of action against Intergames for whatever could be recovered by the petitioners from
Cosmos. 21

Decision of the CA

All the parties appealed to the CA.

The petitioners contended that the RTC erred in not awarding damages for loss of earning capacity
on the part of Rommel for the reason that such damages were not recoverable due to Rommel not
yet having finished his schooling; and that it would be premature to award such damages upon the
assumption that he would finish college and be gainfully employed. 22

On their part, Cosmos and Intergames separately raised essentially similar errors on the part of the
RTC, to wit: (1) in holding them liable for the death of Rommel; (2) in finding them negligent in
conducting the marathon; (3) in holding that Rommel and his parents did not assume the risks of the
marathon; (4) in not holding that the sole and proximate cause of the death of Rommel was the
negligence of the jeepney driver; and (5) in making them liable, jointly and solidarily, for damages,
attorney's fees and expenses of litigation.23

The CA reduced the issues to four, namely:

1. Whether or not appellant Intergames was negligent in its conduct of the "1st Pop Cola Junior
Marathon" held on June 15, 1980 and if so, whether its negligence was the proximate cause of the
death of Rommel Abrogar.

2. Whether or not appellant Cosmos can be held jointly and solidarily liable with appellant
Intergames for the death of Rommel Abrogar, assuming that appellant Intergames is found to have
been negligent in the conduct of the Pop Cola marathon and such negligence was the proximate
cause of the death of Rommel Abrogar.

3. Whether or not the appellants Abrogar are entitled to be compensated for the "loss of earning
capacity" of their son Rommel.

4. Whether or not the appellants Abrogar are entitled to the actual, moral, and exemplary damages
granted to them by the Trial Court. 24

In its assailed judgment promulgated on March 10, 2004,  the CA ruled as follows:
25

As to the first issue, this Court finds that appellant Intergames was not negligent in organizing the
said marathon.

Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct to human affairs, would do, or doing something
which a prudent and reasonable man would not do.

The whole theory of negligence presuppose some uniform standard of behavior which must be an
external and objective one, rather than the individual judgment good or bad, of the particular actor; it
must be, as far as possible, the same for all persons; and at the same time make proper allowance
for the risk apparent to the actor for his capacity to meet it, and for the circumstances under which
he must act.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and of the acts involved in the
particular case.

In the case at bar, the trial court erred in finding that the appellant Intergames failed to satisfy the
requirements of due diligence in the conduct of the race.

The trial court in its decision said that the accident in question could have been avoided if the route
of the marathon was blocked off from the regular traffic, instead of allowing the runners to run
together with the flow of traffic. Thus, the said court considered the appellant Intergames at fault for
proceeding with the marathon despite the fact that the Northern Police District, MPF, Quezon City
did not allow the road to be blocked off from traffic.

This Court finds that the standard of conduct used by the trial court is not the ordinary conduct of a
prudent man in such a given situation. According to the said court, the only way to conduct a safe
road race is to block off the traffic for the duration of the event and direct the cars and public utilities
to take alternative routes in the meantime that the marathon event is being held. Such standard is
too high and is even inapplicable in the case at bar because, there is no alternative route from IBP to
Don Mariano Marcos to Quezon City Hall.
The Civil Code provides that if the law or contract does not state the diligence which is to be
observed in the performance of an obligation that which is expected of a good father of the family
shall only be required. Accordingly, appellant Intergames is only bound to exercise the degree of
care that would be exercised by an ordinarily careful and prudent man in the same position and
circumstances and not that of the cautious man of more than average prudence. Hence, appellant
Intergames is only expected to observe ordinary diligence and not extraordinary diligence.

In this case, the marathon was allowed by the Northern Police District, MPF, Quezon City on the
condition that the road should not be blocked off from traffic. Appellant Intergames had no choice. It
had to comply with it or else the said marathon would not be allowed at all.

The trial court erred in contending that appellant Intergames should have looked for alternative
places in Metro Manila given the condition set by the Northern Police District, MPF, Quezon City;
precisely because as Mr. Jose Castro has testified the said route was found to be the best route
after a careful study and consideration of all the factors involved. Having conducted several
marathon events in said route, appellant Intergames as well as the volunteer groups and the other
agencies involved were in fact familiar with the said route. And assuming that there was an
alternative place suitable for the said race, the question is would they be allowed to block off the said
road from traffic?

Also, the trial court erred in stating that there was no adequate number of marshals, police officers
and personnel to man the race so as to prevent injury to the participants.

The general rule is that the party who relies on negligence for his cause of action has the burden of
proving the existence of the same, otherwise his action fails.

Here, the appellants-spouses failed to prove that there was inadequate number of marshals, police
officers, and personnel because they failed to prove what number is considered adequate.

This court considers that seven (7) traffic operatives, five (5) motorcycle policemen, fifteen (15)
patrolmen deployed along the route, fifteen (15) boyscouts, twelve (12) CA Ts, twenty (20) barangay
tanods, three (3) ambulances and three (3) medical teams were sufficient to stage a safe marathon.

Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of those constituting
the volunteer help during the marathon is not fatal to the case considering that one of the volunteers,
Victor Landingin of the Citizens Traffic Action (CTA) testified in court that CTA fielded five units on
June 15, 1980, assigned as follows: (1) at the sphere head; (2) at the finish line; (3) tail ender; (4) &
(5) roving.

The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana, head of the traffic
policemen assigned at the marathon, that he showed up only at the finish line means that he did not
bother to check on his men and did not give them appropriate instructions. P/Lt. Lipana in his
testimony explained that he did not need to be in the start of the race because he had predesignated
another capable police officer to start the race.

In addition, this Court finds that the precautionary measures and preparations adopted by appellant
Intergames were sufficient considering the circumstances surrounding the case.

Appellant Intergames, using its previous experiences in conducting safe and successful road races,
took all the necessary precautions and made all the preparations for the race. The initial
preparations included: determination of the route to be taken; and an ocular inspection of the same
to see if it was well-paved, whether it had less corners for easy communication and coordination,
and whether it was wide enough to accommodate runners and transportation. Appellant Intergames
choose the Don Mariano Marcos Avenue primarily because it was well-paved; had wide lanes to
accommodate runners and vehicular traffic; had less corners thus facilitating easy communication
and coordination among the organizers and cooperating agencies; and was familiar to the race
organizers and operating agencies. The race covered a ten-kilometer course from the IBP lane to
the Quezon City Hall Compound passing through the Don Mariano Marcos A venue, which
constituted the main stretch of the route. Appellant Intergames scheduled the marathon on a Sunday
morning, when traffic along the route was at its lightest. Permission was sought from the then
Quezon City Mayor Adelina Rodriguez for the use of the Quezon City Hall Grandstand and the street
fronting it as the finish line. Police assistance was also obtained to control and supervise the traffic.
The Quezon City Traffic Detachment took charge of traffic control by assigning policemen to the
traffic route. The particular unit assigned during the race underwent extensive training and had been
involved in past marathons, including marathons in highly crowded areas. The Philippine Boy Scouts
tasked to assist the police and monitor the progress of the race; and Citizens Traffic Action Group
tasked with the monitoring of the race, which assigned five units consisting of ten operatives, to
provide communication and assistance were likewise obtained. Finally, medical equipments and
personnel were also requested from Camp Aguinaldo, the Philippine Red Cross and the Hospital ng
Bagong Lipunan.

Neither does this Court find the appellant Intergames' conduct of the marathon the proximate cause
of the death of Rommel Abrogar. Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces injury, and without
which the result would not have occurred.

It appears that Rommel Abrogar, while running on Don Mariano Marcos A venue and after passing
the Philippine Atomic Energy Commission Building, was bumped by a jeepney which apparently was
racing against a minibus and the two vehicles were trying to crowd each other. In fact, a criminal
case was filed against the jeepney driver by reason of his having killed Rommel Abrogar.

This proves that the death of Rommel Abrogar was caused by the negligence of the jeepney driver.
Rommel Abrogar cannot be faulted because he was performing a legal act; the marathon was
conducted with the permission and approval of all the city officials involved. He had the right to be
there. Neither can the appellant Intergames be faulted, as the organizer of the said marathon,
because it was not negligent in conducting the marathon.

Given the facts of this case, We believe that no amount of precaution can prevent such an accident.
Even if there were fences or barriers to separate the lanes for the runners and for the vehicles, it
would not prevent such an accident in the event that a negligent driver loses control of his vehicle.
And even if the road was blocked off from traffic, it would still not prevent such an accident, if a
jeepney driver on the other side of the road races with another vehicle loses control of his wheel and
as a result hits a person on the other side of the road. Another way of saying this is: A defendant's
tort cannot be considered a legal cause of plaintiffs damage if that damage would have occurred just
the same even though the defendant's tort had not been committed.

This Court also finds the doctrine of assumption of risk applicable in the case at bar. As explained by
a well-known authority on torts:

"The general principle underlying the defense of assumption of risk is that a plaintiff who voluntarily
assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot
recover for such harm. The defense may arise where a plaintiff, by contract or otherwise, expressly
agrees to accept a risk or harm arising from the defendant's conduct, or where a plaintiff who fully
understands a risk or harm caused by the defendant's conduct, or by a condition created by the
defendant, voluntarily chooses to enter or remain, or to permit his property to enter or remain, within
the area of such risk, under circumstances manifesting his willingness to accept the risk.

xxxx

"Assumption of the risk in its primary sense arises by assuming through contract, which may be
implied, the risk of a known danger. Its essence is venturousness. It implies intentional exposure to a
known danger; It embraces a mental state of willingness; It pertains to the preliminary conduct of
getting into a dangerous employment or relationship, it means voluntary incurring the risk of an
accident, which may or may not occur, and which the person assuming the risk may be careful to
avoid; and it defeats recovery because it is a previous abandonment of the right to complain if an
accident occurs.

"Of course, if the defense is predicated upon an express agreement the agreement must be valid,
and in the light of this qualification the rule has been stated that a plaintiff who, by contract or
otherwise, expressly agreed to accept a risk of harm arising from the defendant's negligent or
reckless conduct, cannot recover for such harm unless the agreement is invalid as contrary to public
policy.

xxxx

"The defense of assumption of risk presupposes: (1) that the plaintiff had actual knowledge of the
danger; (2) that he understood and appreciated the risk from the danger; and (3) that he voluntarily
exposed himself to such risk. x x x

"The term 'risk' as used in this connection applies to known dangers, and not to things from which
danger may possibly flow. The risk referred to is the particular risk, or one of the risks, which the
plaintiff accepted within the context of the situation in which he placed himself and the question is
whether the specific conduct or condition which caused the injury was such a risk."

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar, surveyed
the route of the marathon and even attended a briefing before the race. Consequently, he was
aware that the marathon would pass through a national road and that the said road would not be
blocked off from traffic. And considering that he was already eighteen years of age, had voluntarily
participated in the marathon, with his parents' consent, and was well aware of the traffic hazards
along the route, he thereby assumed all the risks of the race. This is precisely why permission from
the participant's parents, submission of a medical certificate and a waiver of all rights and causes of
action arising from the participation in the marathon which the participant or his heirs may have
against appellant Intergames were required as conditions in joining the marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver signed by Rommel
Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack and other similar
risks. It did not consider vehicular accident as one of the risks included in the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the waiver included vehicular accidents
for the simple reason that it was a road race run on public roads used by vehicles. Thus, it cannot be
denied that vehicular accidents are involved. It was not a track race which is held on an oval and
insulated from vehicular traffic. In a road race, there is always the risk of runners being hit by motor
vehicles while they train or compete. That risk is inherent in the sport and known to runners. It is a
risk they assume every time they voluntarily engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest, he assumes the
ordinary risks of such game or contest so as to preclude recovery from the promoter or operator of
the game or contest for injury or death resulting therefrom. Proprietors of amusements or of places
where sports and games are played are not insurers of safety of the public nor of their patrons.

In McLeod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen years
of age, of ordinary intelligence and physique, who entered a race conducted by a department store,
the purpose of which was to secure guinea fowl which could be turned in for cash prizes, had
assumed the ordinary risks incident thereto and was barred from recovering against the department
store for injuries suffered when, within catching distance, he stopped to catch a guinea, and was
tripped or stumbled and fell to the pavement, six or eight others falling upon him. The court further
said: "In this (the race) he was a voluntary participant. xxx The anticipated danger was as obvious to
him as it was to appellant (the department store). While not an adult, he was practically 17 years of
age, of ordinary intelligence, and perfectly able to determine the risks ordinarily incident to such
games. An ordinary boy of that age is practically as well advised as to the hazards of baseball,
basketball, football, foot races and other games of skill and endurance as is an adult

x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the winner
of which was to represent the country in the annual Spirit of Pheidippides Marathon Classic in
Greece, if he equals or breaks the 29-minute mark for the 10-km. race. Thus, Rommel Abrogar
having voluntarily participated in the race, with his parents' consent, assumed all the risks of the
race.

Anent the second issue, this Court finds that appellant Cosmos must also be absolved from any
liability in the instant case.

This Court finds that the trial court erred in holding appellant Cosmos liable for being the principal
mover and resultant beneficiary of the event.

In its decision it said that in view of the fact that appellant Cosmos will be deriving certain benefits
from the marathon event, it has the responsibility to ensure the safety of all the participants and the
public. It further said that the stipulations in the contract entered into by the two appellants, Cosmos
and Intergames, relieving the former from any liability does not bind third persons.

This Court does not agree with the reasoning of the trial court. The sponsorship contract entered
between appellant Cosmos and appellant Intergames specifically states that:

1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of FIFTY FIVE
THOUSAND PESOS (₱55,000.00) representing full sponsorship fee and in consideration thereof,
INTERGAMES shall organize and stage a marathon race to be called '1st POP COLA JUNIOR
MARATHON.

xxxx

3. INTER GAMES shall draw up all the rules of the marathon race, eligibility requirements of
participants as well as provide all the staff required in the organization and actual staging of the race.
It is understood that all said staff shall be considered under the direct employ of INTERGAMES
which shall have full control over them.

xxxx

5. INTERGAMES shall secure all the necessary permits, clearances, traffic and police assistance in
all the areas covered by the entire route of the '1st POP COLA JUNIOR MARATHON.

12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely free and harmless
from any claim or action for liability for any injuries or bodily harm which may be sustained by any of
the entries in the '1st POP COLA JUNIOR MARATHON', or for any damages to the property or
properties of third parties, which may likewise arise in the course of the race.

From the foregoing, it is crystal clear that the role of the appellant Cosmos was limited to providing
financial assistance in the form of sponsorship. Appellant Cosmos' sponsorship was merely in
pursuance to the company's commitment for spo1is development of the youth as well as for
advertising purposes. The use of the name Cosmos was done for advertising purposes only; it did
not mean that it was an organizer of the said marathon. As pointed out by Intergames' President,
Jose Castro Jr., appellant Cosmos did not even have the right to suggest the location and the
number of runners.

To hold a defendant liable for torts, it must be clearly shown that he is the proximate cause of the
harm done to the plaintiff. The nexus or connection of the cause and effect, between a negligent act
and the damage done, must be established by competent evidence.

In this case, appellant Cosmos was not negligent in entering into a contract with the appellant
Intergames considering that the record of the latter was clean and that it has conducted at least thirty
(30) road races.

Also there is no direct or immediate causal connection between the financial sponsorship and the
death of Rommel Abrogar. The singular act of providing financial assistance without participating in
any manner in the conduct of the marathon cannot be palmed off as such proximate cause. In fact,
the appellant spouses never relied on any representation that Cosmos organized the race. It was not
even a factor considered by the appellants-spouses in allowing their son to join said marathon.

In view of the fact that both defendants are not liable for the death of Rommel Abrogar, appellants-
spouses are not entitled to actual, moral, exemplary damages as well as for the "loss of earning
capacity" of their son. The third and fourth issues are thus moot and academic.

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from must be, as it
hereby is, REVERSED and SET ASIDE, and another entered DISMISSING the complaint a quo.
The appellants shall bear their respective costs.

SO ORDERED. 26

Issues

In this appeal, the petitioners submit that the CA gravely erred:

A.
x x x in reversing the RTC Decision, (and) in holding that respondent Intergames was not negligent
considering that:

1. Respondent Intergames failed to exercise the diligence of a good father of the family in the
conduct of the marathon in that it did not block off from traffic the marathon route; and

2. Respondent Intergames' preparations for the race, including the number of marshal during the
marathon, were glaringly inadequate to prevent the happening of the injury to its participants.

B.

x x x in reversing the RTC Decision, (and) in holding that the doctrine of assumption of risk finds
application to the case at bar even though getting hit or run over by a vehicle is not an inherent risk
in a marathon race. Even assuming arguendo that deceased Abrogar made such waiver as claimed,
still there can be no valid waiver of one's right to life and limb for being against public policy.

C.

x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from liability to
petitioners on the sole ground that respondent Cosmos' contract with respondent Intergames
contained a stipulation exempting the former from liability.

D.

x x x m reversing the RTC Decision and consequently holding respondents free from liability, (and)
in not awarding petitioners with actual, moral and exemplary damages for the death of their child,
Rommel Abrogar. 27

Ruling of the Court

The appeal is partly meritorious.

Review of factual issues is allowed because of

the conflict between the findings of fact
by the RTC and the CA on the issue of negligence

The petitioners contend that Intergames was negligent; that Cosmos as the sponsor and Intergames
as the organizer of the marathon both had the obligation to provide a reasonably safe place for the
conduct of the race byblocking the route of the race from vehicular traffic and by providing adequate
manpower and personnel to ensure the safety of the participants; and that Intergames had foreseen
the harm posed by the situation but had not exercised the diligence of a good father of a family to
avoid the risk;  hence, for such omission, Intergames was negligent.
28 29

Refuting, Cosmos and Intergames submit that the latter as the organizer was not negligent because
it had undertaken all the precautionary measures to ensure the safety of the race; and that there was
no duty on the part of the latter as the organizer to keep a racecourse "free and clear from
reasonably avoidable elements that would [occasion] or have the probable tendency, to occasion
injury."
30
The issue of whether one or both defendants were negligent is a mixed issue of fact and law. Does
this not restrict the Court against reviewing the records in this appeal on certiorari in order to settle
the issue?

The Court can proceed to review the factual findings of the CA as an exception to the general rule
that it should not review issues of fact on appeal on certiorari. We have recognized exceptions to the
rule that the findings of fact of the CA are conclusive and binding in the following instances: (1) when
the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the CA went beyond the issues of the case, or its findings
are contrary to the admissions of both the appellant and the appellee; (7) when the findings are
contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main
and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on
the supposed absence of evidence and contradicted by the evidence on record; and (11) when the
CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.  Considering that the CA arrived at factual findings
31

contrary to those of the trial court, our review of the records in this appeal should have to be made.

Negligence is the failure to observe for the protection of the interests of another person that degree
of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury.  Under Article 1173 of the Civil Code, it consists of the "omission of that
32

diligence which is required by the nature of the obligation and corresponds with the circumstances of
the person, of the time and of the place."  The Civil Code makes liability for negligence clear under
33

Article 2176,  and Article 20.

34 35

To determine the existence of negligence, the following time-honored test has been set in Picart v.
Smith:36

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The
law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculation cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is this: Conduct is said to
be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against
its consequences.  (bold underscoring supplied for emphasis)
37

A careful review of the evidence presented, particularly the testimonies of the relevant witnesses, in
accordance with the foregoing guidelines reasonably leads to the conclusion that the safety and
precautionary measures undertaken by Intergames were short of the diligence demanded by the
circumstances of persons, time and place under consideration. Hence, Intergames as the organizer
was guilty of negligence.

The race organized by Intergames was a junior marathon participated in by young persons aged 14
to 18 years. It was plotted to cover a distance of 10 kilometers, starting from the IBP Lane,  then
38

going towards the Batasang Pambansa, and on to the circular route towards the Don Mariano
Marcos Highway,  and then all the way back to the Quezon City Hall compound where the finish line
39

had been set.  In staging the event, Intergames had no employees of its own to man the race,  and
40 41

relied only on the "cooperating agencies" and volunteers who had worked with it in previous
races.  The cooperating agencies included the Quezon City police, barangay tanods, volunteers
42

from the Boy Scouts of the Philippines, the Philippine National Red Cross, the Citizens Traffic Action
Group, and the medical teams of doctors and nurses coming from the Office of the Surgeon General
and the Ospital ng Bagong Lipunan.  According to Jose R. Castro, Jr., the President of Intergames,
43

the preparations for the event included conducting an ocular inspection of the route of the
race,  sending out letters to the various cooperating agencies,  securing permits from proper
44 45

authorities,  putting up directional signs,  and setting up the water stations.

46 47 48

We consider the "safeguards" employed and adopted by Intergames not adequate to meet the
requirement of due diligence.

For one, the police authorities specifically prohibited Intergames from blocking Don Mariano Marcos
Highway in order not to impair road accessibility to the residential villages located beyond the IBP
Lanc. 49

However, contrary to the findings of the CA,  Intergames had a choice on where to stage the
50

marathon, considering its admission of the sole responsibility for the conduct of the event, including
the choice of location.

Moreover, the CA had no basis for holding that "the said route was found to be the best route after a
careful study and consideration of all the factors involved."  Castro, Jr. himself attested that the route
51

had been the best one only within the vicinity of the Batasan Pambansa, to wit:

COURT

q Was there any specific reason from ... Was there any specific reason why you used this route from
Batasan to City Hall? Was there any special reason?

a We have, your Honor, conducted for example the Milo Marathon in that area in the Batasan
Pambansa and we found it to be relatively safer than any other areas within the vicinity. As a matter
of fact, we had more runners in the Milo Marathon at that time and nothing happened, your Honor. 52

The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then to Quezon City Hall)
was not the only route appropriate for the marathon. In fact, Intergames came under no obligation to
use such route especially considering that the participants, who were young and inexperienced
runners, would be running alongside moving vehicles.
Intergames further conceded that the marathon could have been staged on a blocked-off route like
Roxas Boulevard in Manila where runners could run against the flow of vehicular traffic.  Castro, Jr.
53

stated in that regard:

COURT TO WITNESS

q What law are you talking about when you say I cannot violate the law?

a The police authority, your Honor, would not grant us permit because that is one of the conditions
that if we are to conduct a race we should run the race in accordance with the flow of traffic.

q Did you not inform the police this is in accordance with the standard safety measures for a
marathon race?

a I believed we argued along that line but but (sic) again, if we insist the police again would not grant
us any permit like ... except in the case of Roxas Boulevard when it is normally closed from 8
a.m. when you can run against the flow of traffic.

q You were aware for a runner to run on the same route of the traffic would be risky because he
would not know what is coming behind him?

a I believed we talked of the risk, your Honor when the risk has been minimized to a certain level.
Yes, there is greater risk when you run with the traffic than when you run against the traffic to a
certain level, it is correct but most of the races in Manila or elsewhere are being run in accordance
with the flow of the traffic.

xxxx

ATTY. VINLUAN

q Following the observation of the Court, considering the local condition, you will agree with me the
risks here are greater than in the United States where drivers on the whole follow traffic rules?

a That is correct.

q And because of that fact, it is with all the more reason that you should take all necessary
precautions to insure the safety of the runners?

a That is correct. 54

xxxx

COURT:

xxxx

Q In your case in all the marathons that you had managed, how many cases have you encountered
where the routes are blocked off for vehicular traffic?
A These are the International Marathon, Philippines Third World Marathon and the Milo Marathon.
We are blocking them to a certain length of time.

Q What was the purpose of blocking the routes? Is it for the safety of the runners or just a matter of
convenience?

A In blocking off the route, Your Honor, it is light easier for the runners to run without impediments to
be rendered by the people or by vehicles and at the same time it would be also advantageous if the
road will be blocked off for vehicle traffic permitted to us by the traffic authorities.

Q So, in this case, you actually requested for the traffic authorities to block off the route?

A As far as I remember we asked Sgt. Pascual to block off the route but considering that it is the
main artery to Fairview Village, it would not be possible to block off the route since it will cause a lot
of inconvenience for the other people in those areas and jeepney drivers.

Q In other words, if you have your way you would have opted to block off the route.

A Yes, Your Honor.

Q But the fact is that the people did not agree.

A Yes, Your Honor, and it is stated in the permit given to us. 55

Based on the foregoing testimony of Castro, Jr., Intergames had full awareness of the higher risks
involved in staging the race alongside running vehicles, and had the option to hold the race in a
route where such risks could be minimized, if not eliminated. But it did not heed the danger already
foreseen, if not expected, and went ahead with staging the race along the plotted route on Don
Mariano Marcos Highway on the basis of its supposedly familiarity with the route. Such familiarity of
the organizer with the route and the fact that previous races had been conducted therein without any
untoward incident  were not in themselves sufficient safeguards. The standards for avoidance of
56

injury through negligence further required Intergames to establish that it did take adequate measures
to avert the foreseen danger, but it failed to do so.

Another failing on the part of Intergames was the patent inadequacy of the personnel to man the
route. As borne by the records, Intergames had no personnel of its own for that purpose, and relied
exclusively on the assistance of volunteers, that is, "seven (7) traffic operatives, five (5) motorcycle
policemen, fifteen (15) patrolmen deployed along the route, fifteen (15) boy scouts, twelve (12)
CATs, twenty (20) barangay tanods, three (3) ambulances and three (3) medical teams"  to ensure
57

the safety of the young runners who would be running alongside moving vehicular traffic, to make
the event safe and well coordinated.

Although the party relying on negligence as his cause of action had the burden of proving the
existence of the same, Intergames' coordination and supervision of the personnel sourced from the
cooperating agencies did not satisfy the diligence required by the relevant circumstances. In this
regard, it can be pointed out that the number of deployed personnel, albeit sufficient to stage the
marathon, did not per se ensure the safe conduct of the race without proof that such deployed
volunteers had been properly coordinated and instructed on their tasks.

That the proper coordination and instruction were crucial elements for the safe conduct of the race
was well known to Intergames. Castro, Jr. stated as much, to wit:
ATTY. LOMBOS:

xxxx

Q You also said that if you block off one side of the road, it is possible that it would be more
convenient to hold the race in that matter. Will you tell the Honorable Court if it is possible also to
hold a race safely if the road is not blocked off?

A Yes, sir.

Q How is it done.

A You can still run a race safely even if it is partially blocked off as long as you have the necessary
cooperation with the police authorities, and the police assigned along the route of the race and the
police assigned would be there, this will contribute the safety of the participants, and also the
vehicular division, as long as there are substantial publicities in the newspapers, normally they will
take the precautions in the use of the particular route of the race.

Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you have this traffic
assistance or coordination even if the route is blocked or not blocked?

A It is preferable to have the route blocked but in some cases, it would be impossible for the portions
of the road to be blocked totally. The route of the race could still be safe for runners if a proper
coordination or the agencies are notified especially police detailees to man the particular stage. 58

Sadly, Intergames' own evidence did not establish the conduct of proper coordination and
instruction. Castro, Jr. described the action plan adopted by Intergames in the preparation for the
race, as follows:

COURT

a Did you have any rehearsal let us say the race was conducted on June 15, now before June 15
you call a meeting of all these runners so you can have more or less a map-up and you would
indicate or who will be stationed in their places etc. Did you have such a rehearsal?

WITNESS

a It is not being done, your honor, but you have to specify them. You meet with the group and you
tell them that you wanted them to be placed in their particular areas which we pointed out to them for
example in the case of the Barangay Tanod, I specifically assigned them in the areas and we sat
down and we met.

COURT

q Did you have any action, plan or brochure which would indicate the assignment of each of the
participating group?

WITNESS

a Normally, sir, many of the races don't have that except when they called them to meeting either as
a whole group or the entire cooperating agency or meet them per group.
COURT

q Did you have a check list of the activities that would have to be entered before the actual marathon
some kind of system where you will indicate this particular activity has to be checked etc. You did
not have that?

WITNESS

q Are you asking, your honor, as a race director of I will check this because if I do that, I won't have a
race because that is not being done by any race director anywhere in the world?

COURT

I am interested in your planning activities.

q In other words, what planning activities did you perform before the actual marathon?

a The planning activities we had, your honor, was to coordinate with the different agencies involved
informing them where they would be more or less placed.

COURT

q Let us go to ... Who was supposed to be coordinating with you as to the citizens action group who
was your ... you were referring to a person who was supposed to be manning these people and who
was the person whom you coordinate with the Traffic Action Group?

WITNESS

a I can only remember his name ... his family name is Esguerra.

q How about with the Tanods?

a With the Tanods his name is Pedring Serrano.

q And with the Boys Scouts? (sic)

a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.

COURT

q When did you last meet rather how many times did you meet with Esguerra before the marathon
on June 15?

WITNESS

a The Citizens Traffic Action Group, your honor, had been with me m previous races.

COURT
q I am asking you a specific question. I am not interested in the Citizen Traffic Action Group. The
marathon was on June 15, did you meet with him on June 14, June 13 or June 12?

a We met once, your honor, I cannot remember the date.

q You don't recall how many days before?

a I cannot recall at the moment.

q How about with Mr. Serrano, how many times did you meet with him before the race?

a If my mind does not fail me, your honor, I met him twice because he lives just within our area and
we always see each other.

q How about with Panelo, how many times did you meet him?

a With Mr. Panelo, I did not meet with them, your honor.

q Was there an occasion where before the race you met with these three people together since you
did not meet with Panelo anytime? Was there anytime where you met with Serrano and Esguerra
together?

WITNESS

a No, your honor.

COURT

g When you met once with Esguerra, where did you meet? What place?

a I cannot recall at the moment, your honor, since it was already been almost six years ago.

g How about Serrano, where did you meet him?

a We met in my place.

q From your house? He went in your house?

a Yes, your honor.

q So you did not have let us say a ... you don't have records of your meetings with these people?

WITNESS

a With the Citizens Traffic Action, your honor?

COURT

a Yes.
WITNESS

a I don't have, your honor.

COURT

q Because you are familiar, I was just thinking this is an activity which requires planning etc., what I
was thinking when you said this was never done in any part of the world but all activities it has to be
planned. There must be some planning, now are you saying that in this particular case you had no
written plan or check list of activities what activities have to be implemented on a certain point and
time, who are the persons whom you must meet in a certain point and time.

WITNESS

a Normally, we did not have that, your honor, except the check list of all the things that should be
ready at a particular time prior to the race and the people to be involved and we have a check list to
see to it that everything would be in order before the start of the race.

COURT

Proceed.

ATTY. VINLUAN

q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of the Police
Department who were supposed to supervise the police officers assigned to help during the race?

a I did not meet with him, sir.

q You did not meet with him?

a I did not meet with him.

q In fact, ever before or during the race you had no occasion to talk to Lt. Depano. Is that correct?

a That is correct, sir.

ATTY. VINLUAN

Based on the question of the Court and your answer to the question of the Court, are you trying to
say that this planning before any race of all these groups who have committed to help in the race,
this is not done in any part of the world?

WITNESS

a In the latter years when your race became bigger and bigger, this is being done now slowly.

ATTY. VINLUAN
q But for this particular race you will admit that you failed to do it when you have to coordinate and
even have a dry run of the race you failed to do all of that in this particular race, yes or no?

a Because there was ...

COURT

It was already answered by him when I asked him. The Court has ... Everybody has a copy how of
this time planner. Any activity or even meeting a girlfriend or most people plan.

A TTY. F .M. LOMBOS

If your honor please, before we proceed ...

WITNESS

In the latter years, your honor, when your race became bigger and bigger, this is being done now
slowly.

q For this particular race you will admit that you failed to do it?

a Because there was no need, sir. 59

Probably sensing that he might have thereby contradicted himself, Castro, Jr. clarified on re-direct
examination:

ATTY. LOMBOS

Q Now, you also responded to a question during the same hearing and this appears on page 26 of
the transcript that you did not hold any rehearsal or dry run for this particular marathon. Could you
tell the Court why you did not hold any such rehearsal or dry run?

A Because I believe there was no need for us to do that since we have been doing this for many
years and we have been the same people, same organization with us for so many years conducting
several races including some races in that area consisting of longer distances and consisting of
more runners, a lot more runners in that areay (sic) so these people, they know exactly what to do
and there was no need for us to have a rehearsal. I believe this rehearsal would only be applicable if
I am new and these people are new then, we have to rehearse.

ATTY. LOMBOS

q You also stated Mr. Castro that you did not have any action plan or brochure which you would
indicate, an assignment of each of the participating group as to what to do during the race. Will you
please explain what you meant when you said you have no action plan or brochure?

WITNESS

a What I mean of action plan, I did not have any written action plan but I was fully aware of what to
do. I mean, those people did not just go there out of nowhere. Obviously, there was an action on my
part because I have to communicate with them previously and to tell them exactly what the race is all
about; where to start; where it would end, and that is the reason why we have the ambulances, we
have the Boy Scouts, we have the CT A, we have the police, so it was very obvious that there was a
plan of action but not written because I know pretty well exactly what to do. I was dealing with people
who have been doing this for a long period of time. 60

While the level of trust Intergames had on its volunteers was admirable, the coordination among the
cooperating agencies was predicated on circumstances unilaterally assumed by Intergames. It was
obvious that Intergames' inaction had been impelled by its belief that it did not need any action plan
because it had been dealing with people who had been manning similar races for a long period of
time.

The evidence presented undoubtedly established that Intergames' notion of coordination only
involved informing the cooperating agencies of the date of the race, the starting and ending points of
the route, and the places along the route to man. Intergames did not conduct any general assembly
with all of them, being content with holding a few sporadic meetings with the leaders of the
coordinating agencies. It held no briefings of any kind on the actual duties to be performed by each
group of volunteers prior to the race. It did not instruct the volunteers on how to minimize, if not
avert, the risks of danger in manning the race, despite such being precisely why their assistance had
been obtained in the first place.

Intergames had no right to assume that the volunteers had already been aware of what exactly they
would be doing during the race. It had the responsibility and duty to give to them the proper
instructions despite their experience from the past races it had organized considering that the
particular race related to runners of a different level of experience, and involved different weather
and environmental conditions, and traffic situations. It should have remembered that the personnel
manning the race were not its own employees paid to perform their tasks, but volunteers whose
nature of work was remotely associated with the safe conduct of road races. Verily, that the
volunteers showed up and assumed their proper places or that they were sufficient in number was
not really enough. It is worthy to stress that proper coordination in the context of the event did not
consist in the mere presence of the volunteers, but included making sure that they had been
properly instructed on their duties and tasks in order to ensure the safety of the young runners.

It is relevant to note that the participants of the 1st Pop Cola Junior Marathon were mostly minors
aged 14 to 18 years joining a race of that kind for the first time. The combined factors of their youth,
eagerness and inexperience ought to have put a reasonably prudent organizer on higher guard as to
their safety and security needs during the race, especially considering Intergames' awareness of the
risks already foreseen and of other risks already known to it as of similar events in the past
organizer. There was no question at all that a higher degree of diligence was required given that
practically all of the participants were children or minors like Rommel; and that the law imposes a
duty of care towards children and minors even if ordinarily there was no such duty under the same
circumstances had the persons involved been adults of sufficient discretion.  In that respect,
61

Intergames did not observe the degree of care necessary as the organizer, rendering it liable for
negligence. As the Court has emphasized in Corliss v. The Manila Railroad Company,  where the
62

danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary
care under the circumstances.  63

The circumstances of the persons, time and place required far more than what Intergames
undertook in staging the race. Due diligence would have made a reasonably prudent organizer of the
race participated in by young, inexperienced or beginner runners to conduct the race in a route
suitably blocked off from vehicular traffic for the safety and security not only of the participants but
the motoring public as well. Since the marathon would be run alongside moving vehicular traffic, at
the very least, Intergames ought to have seen to the constant and closer coordination among the
personnel manning the route to prevent the foreseen risks from befalling the participants. But this it
sadly failed to do.

II

The negligence of Intergames as the organizer

was the proximate cause of the death of Rommel

As earlier mentioned, the CA found that Rommel, while running the marathon on Don Mariano
Marcos A venue and after passing the Philippine Atomic Energy Commission Building, was bumped
by a passenger jeepney that was racing with a minibus and two other vehicles as if trying to crowd
each other out. As such, the death of Rommel was caused by the negligence of the jeepney driver.

Intergames staunchly insists that it was not liable, maintaining that even assuming arguendo that it
was negligent, the negligence of the jeepney driver was the proximate cause of the death of
Rommel; hence, it should not be held liable.

Did the negligence of Intergames give rise to its liability for the death of ommel notwithstanding the
negligence of the jeepney driver?

In order for liability from negligence to arise, there must be not only proof of damage and negligence,
but also proof that the damage was the consequence of the negligence. The Court has said in Vda.
de Gregorio v. Go Chong Bing: 64

x x x Negligence as a source of obligation both under the civil law and in American cases was
carefully considered and it was held:

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally or some person for whose acts it
must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage." (Taylor vs. Manila
Electric Railroad and Light Co., supra, p. 15.)

In accordance with the decision of the Supreme Court of Spain, in order that a person may be held
guilty for damage through negligence, it is necessary that there be an act or omission on the part of
the person who is to be charged with the liability and that damage is produced by the said act or
omission.  (Emphasis supplied)
65

We hold that the negligence of Intergames was the proximate cause despite the intervening
negligence of the jeepney driver.

Proximate cause is "that which, in natural and continuous sequence, unbroken by any new cause,
produces an event, and without which the event would not have occurred."  In Vda. de Bataclan, et
66

al. v. Medina,  the Court, borrowing from American Jurisprudence, has more extensively
67

defined proximate cause thusly:
"* * * 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom." 68

To be considered the proximate cause of the injury, the negligence need not be the event closest in
time to the injury; a cause is still proximate, although farther in time in relation to the injury, if the
happening of it set other foreseeable events into motion resulting ultimately in the
damage.  According to an authority on civil law: "A prior and remote cause cannot be made the
69 70

basis of an action, if such remote cause did nothing more than furnish the condition or give rise to
the occasion by which the injury was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated and efficient cause, even though such
injury would not have happened but for such condition or occasion. If no damage exists in the
condition except because of the independent cause, such condition was not the proximate cause.
And if an independent negligent act or defective condition sets into operation the circumstances
which result in injury because of the prior defective condition, such act or condition is the proximate
cause."

Bouvier adds:

In many cases important questions arise as to which, in the chain of acts tending to the production of
a given state of things, is to be considered the responsible cause. It is not merely distance of place
or of causation that renders a cause remote. The cause nearest in the order of causation, without
any efficient concurring cause to produce the result, may be considered the direct cause. In the
course of decisions of cases in which it is necessary to determine which of several causes is so far
responsible for the happening of the act or injury complained of, what is known as the doctrine of
proximate cause is constantly resorted to in order to ascertain whether the act, omission, or
negligence of the person whom it is sought to hold liable was in law and in fact responsible for the
result which is the foundation of the action.71

xxxx

The question of proximate cause is said to be determined, not by the existence or non-existence of
intervening events, but by their character and the natural connection between the original act or
omission and the injurious consequences. When the intervening cause is set in operation by the
original negligence, such negligence is still the proximate cause; x x x If the party guilty of the first
act of negligence might have anticipated the intervening cause, the connection is not broken; x x x.
Any number of causes and effects may intervene, and if they arc such as might with reasonable
diligence have been foreseen, the last result is to be considered as the proximate result. But
whenever a new cause intervenes, which is not a consequence of the first wrongful cause, which is
not under control of the wrongdoer, which could not have been foreseen by the exercise of
reasonable diligence, and except for which the final injurious consequence could not have
happened, then such injurious consequence must be deemed too remote; x x x.  (bold underscoring
72

supplied for emphasis)

An examination of the records in accordance with the foregoing concepts supports the conclusions
that the negligence of Intergames was the proximate cause of the death of Rommel; and that the
negligence of the jeepney driver was not an efficient intervening cause.

First of all, Intergames' negligence in not conducting the race in a road blocked off from vehicular
traffic, and in not properly coordinating the volunteer personnel manning the marathon route
effectively set the stage for the injury complained of. The submission that Intergames had previously
conducted numerous safe races did not persuasively demonstrate that it had exercised due
diligence because, as the trial court pointedly observed, "[t]hey were only lucky that no accident
occurred during the previous marathon races but still the danger was there." 73

Secondly, injury to the participants arising from an unfortunate vehicular accident on the route was
an event known to and foreseeable by Intergames, which could then have been avoided if only
Intergames had acted with due diligence by undertaking the race on a blocked-off road, and if only
Intergames had enforced and adopted more efficient supervision of the race through its volunteers.

And, thirdly, the negligence of the jeepney driver, albeit an intervening cause, was not efficient
enough to break the chain of connection between the negligence of Intergames and the injurious
consequence suffered by Rommel. An intervening cause, to be considered efficient, must be "one
not produced by a wrongful act or omission, but independent of it, and adequate to bring the
injurious results. Any cause intervening between the first wrongful cause and the final injury which
might reasonably have been foreseen or anticipated by the original wrongdoer is not such an
efficient intervening cause as will relieve the original wrong of its character as the proximate cause
of the final injury."
74

In fine, it was the duty of Intergames to guard Rommel against the foreseen risk, but it failed to do
so.

III

The doctrine of assumption of risk

had no application to Rommel

Unlike the R TC, the CA ruled that the doctrine of assumption of risk applied herein; hence, it
declared Intergames and Cosmos not liable. The CA rendered the following rationalization to
buttress its ruling, to wit:

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar, surveyed
the route of the marathon and even attended a briefing before the race. Consequently, he was
aware that the marathon would pass through a national road and that the said road would not be
blocked off from traffic. And considering that he was already eighteen years of age, had voluntarily
participated in the marathon, with his parents' consent, and was well aware of the traffic hazards
along the route, he thereby assumed all the risks of the race. This is precisely why permission from
the participant's parents, submission of a medical certificate and a waiver of all rights and causes of
action arising from the participation in the marathon which the participant or his heirs may have
against appellant Intergames were required as conditions in joining the marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver signed by Rommel
Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack and other similar
risks. It did not consider vehicular accident as one of the risks included in the said waiver.
This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the waiver included vehicular accidents
for the simple reason that it was a road race run on public roads used by vehicles. Thus, it cannot be
denied that vehicular accidents are involved. It was not a track race which is held on an oval and
insulated from vehicular traffic. In a road race, there is always the risk of runners being hit by motor
vehicles while they train or compete. That risk is inherent in the sport and known to runners. It is a
risk they assume every time they voluntarily engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest, he assumes the
ordinary risks of such game or contest so as to preclude recovery from the promoter or operator of
the game or contest for injury or death resulting therefrom. Proprietors of amusements or of places
where sports and games are played are not insurers of safety of the public nor of their patrons.

In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen years
of age, of ordinary intelligence and physique, who entered a race conducted by a department store,
the purpose of which was to secure guinea fowl which could be turned in for cash prizes, had
assumed the ordinary risks incident thereto and was barred from recovering against the department
store for injuries suffered when, within catching distance, he stopped to catch a guinea, and was
tripped or stumbled and fell to the pavement, six or eight others falling upon him. The comi further
said: "In this (the race) he was a voluntary participant. x x x The anticipated danger was as obvious
to him as it was to appellant (the department store). While not an adult, he was practically 17 years
of age, of ordinary intelligence, and perfectly able to determine the risks ordinarily incident to such
games. An ordinary boy of that age is practically as well advised as to the hazards of baseball,
basketball, football, foot races and other games of skill and endurance as is an adult

x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the winner
of which was to represent the country in the annual Spirit of Pheidippides Marathon Classic in
Greece, if he equals or breaks the 29-minute mark for the 19-km. race. Thus, Rommel Abrogar
having voluntarily participated in the race, with his parents' consent, assumed all the risks of the
race.75

The doctrine of assumption of risk means that one who voluntarily exposes himself to an obvious,
known and appreciated danger assumes the risk of injury that may result therefrom.  It rests on the
76

fact that the person injured has consented to relieve the defendant of an obligation of conduct
toward him and to take his chance of injury from a known risk, and whether the former has exercised
proper caution or not is immaterial.  In other words, it is based on voluntary consent, express or
77

implied, to accept danger of a known and appreciated risk; it may sometimes include acceptance of
risk arising from the defendant's negligence, but one does not ordinarily assume risk of any
negligence which he does not know and appreciate.78 As a defense in negligence cases, therefore,
the doctrine requires the concurrence of three elements, namely: (1) the plaintiff must know that the
risk is present; (2) he must further understand its nature; and (3) his choice to incur it must be free
and voluntary.  According to Prosser:  "Knowledge of the risk is the watchword of assumption of
79 80

risk."

Contrary to the notion of the CA, the concurrence of the three elements was not shown to exist.
Rommel could not have assumed the risk of death when he participated in the race because death
was neither a known nor normal risk incident to running a race. Although he had surveyed the route
prior to the race and should be presumed to know that he would be running the race alongside
moving vehicular traffic, such knowledge of the general danger was not enough, for some authorities
have required that the knowledge must be of the specific risk that caused the harm to him.  In
81

theory, the standard to be applied is a subjective one, and should be geared to the particular plaintiff
and his situation, rather than that of the reasonable person of ordinary prudence who appears in
contributory negligence.  He could not have appreciated the risk of being fatally struck by any
82

moving vehicle while running the race. Instead, he had every reason to believe that the organizer
had taken adequate measures to guard all participants against any danger from the fact that he was
participating in an organized marathon. Stated differently, nobody in his right mind, including minors
like him, would have joined the marathon if he had known of or appreciated the risk of harm or even
death from vehicular accident while running in the organized running event. Without question, a
marathon route safe and free from foreseeable risks was the reasonable expectation of every runner
participating in an organized running event.

Neither was the waiver by Rommel, then a minor, an effective form of express or implied consent in
the context of the doctrine of assumption of risk. There is ample authority, cited in Prosser,  to the
83

effect that a person does not comprehend the risk involved in a known situation because of his
youth,  or lack of information or experience,  and thus will not be taken to consent to assume the
84 85

risk.

Clearly, the doctrine of assumption of risk does not apply to bar recovery by the petitioners.

IV

Cosmos is not liable for the negligence

of Intergames as the organizer

Nonetheless, the CA did not err in absolving Cosmos from liability.

The sponsorship of the marathon by Cosmos was limited to financing the race. Cosmos did nothing
beyond that, and did not involve itself at all in the preparations for the actual conduct of the race.
This verity was expressly confirmed by Intergames, through Castro, Jr., who declared as follows:

COURT

q Do you discuss all your preparation with Cosmos Bottling Company?

a As far as the Cosmos Bottling Company (sic) was a sponsor as to the actual conduct of the race, it
is my responsibility. The conduct of the race is my responsibility. The sponsor has nothing to do as
well as its code of the race because they are not the ones running. I was the one running. The
responsibility of Cosmos was just to provide the sponsor's money.

COURT

q They have no right to who (sic) suggest the location, the number of runners, you decide these
yourself without consulting them?

a Yes, your honor. 86

We uphold the finding by the CA that the role of Cosmos was to pursue its corporate commitment to
sports development of the youth as well as to serve the need for advertising its business. In the
absence of evidence showing that Cosmos had a hand in the organization of the race, and took part
in the determination of the route for the race and the adoption of the action plan, including the safety
and security measures for the benefit of the runners, we cannot but conclude that the requirement
for the direct or immediate causal connection between the financial sponsorship of Cosmos and the
death of Rommel simply did not exist. Indeed, Cosmos' mere sponsorship of the race was, legally
speaking, too remote to be the efficient and proximate cause of the injurious consequences.

Damages

Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit upon crimes and quasi-
delicts can recover from the defendant, viz.:

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary that
such damages have been foreseen or could have reasonably been foreseen by the defendant.

Accordingly, Intergames was liable for all damages that were the natural and probable
consequences of its negligence. In its judgment, the RTC explained the award of damages in favor
of the petitioners, as follows:

As borne by the evidence on record, the plaintiffs incurred medical, hospitalization and burial
expenses for their son in this aggregate amount of ₱28,061.65 (Exhibits "D'', "D-1" and "D-2"). In
instituting this case, they have paid their lawyer ₱5,000 as initial deposit, their arrangement being
that they would pay attorney's fees to the extent of 10% of whatever amount would be awarded to
them in this case.

For the loss of a son, it is unquestionable that plaintiffs suffered untold grief which should entitle
them to recover moral damages, and this Court believes that if only to assuage somehow their
untold grief but not necessarily to compensate them to the fullest, the nominal amount of ₱l00,00.00
should be paid by the defendants.

For failure to adopt elementary and basic precautionary measure to insure the safety of the
participants so that sponsors and organizers of sports events should exercise utmost diligence in
preventing injury to the participants and the public as well, exemplary damages should also be paid
by the defendants and this Court considers the amount of ₱50,000.00

as reasonable. 87

Although we will not disturb the foregoing findings and determinations, we need to add to the
justification for the grant of exemplary damages. Article 2231 of the Civil Code stipulates that
exemplary damages are to be awarded in cases of quasi-delict if the defendant acted with gross
negligence. The foregoing characterization by the RTC indicated that Intergames' negligence was
gross. We agree with the characterization. Gross negligence, according to Mendoza v. Spouses
Gomez,  is the absence of care or diligence as to amount to a reckless disregard of the safety of
88

persons or property; it evinces a thoughtless disregard of consequences without exerting any effort
to avoid them. Indeed, the failure of Intergames to adopt the basic precautionary measures for the
safety of the minor participants like Rommel was in reckless disregard of their safety. Conduct is
reckless when it is an extreme departure from ordinary care, in a situation in which a high degree of
danger is apparent; it must be more than any mere mistake resulting from inexperience, excitement,
or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention.  The RTC
89

did not recognize the right of the petitioners to recover the loss of earning capacity of Rommel. It
should have, for doing so would have conformed to jurisprudence whereby the Court has
unhesitatingly allowed such recovery in respect of children, students and other non-working or still
unemployed victims. The legal basis for doing so is Article 2206 (l) of the Civil Code, which
stipulates that 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."

Indeed, damages for loss of earning capacity may be awarded to the heirs of a deceased non-
working victim simply because earning capacity, not necessarily actual earning, may be lost.

In Metro Manila Transit Corporation v. Court of Appeals,  damages for loss of earning capacity were
90

granted to the heirs of a third-year high school student of the University of the Philippines Integrated
School who had been killed when she was hit and run over by the petitioner's passenger bus as she
crossed Katipunan Avenue in Quezon City. The Court justified the grant in this wise:

Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn
money. Evidence must be presented that the victim, if not yet employed at the time of death, was
reasonably certain to complete training for a specific profession. In People v. Teehankee, no award
of compensation for loss of earning capacity was granted to the heirs of a college freshman because
there was no sufficient evidence on record to show that the victim would eventually become a
professional pilot. But compensation should be allowed for loss of earning capacity resulting from the
death of a minor who has not yet commenced employment or training for a specific profession if
sufficient evidence is presented to establish the amount thereor.  (bold underscoring supplied for
91

emphasis)

In People v. Sanchez,  damages for loss of earning capacity was also allowed to the heirs of the
92

victims of rape with homicide despite the lack of sufficient evidence to establish what they would
have earned had they not been killed. The Court rationalized its judgment with the following
observations:

Both Sarmenta and Gomez were senior agriculture students at UPLB, the country's leading
educational institution in agriculture.  As reasonably assumed by the trial court, both victims would
1âwphi1

have graduated in due course. Undeniably, their untimely death deprived them of their future time
and earning capacity. For these deprivation, their heirs are entitled to compensation. xxxx. However,
considering that Sarmenta and Gomez would have graduated in due time from a reputable
university, it would not be unreasonable to assume that in 1993 they would have earned more than
the minimum wage. All factors considered, the Court believes that it is fair and reasonable to fix the
monthly income that the two would have earned in 1993 at ₱8,000.000 per month (or
₱96,000.00/year) and their deductible living and other incidental expenses at ₱3,000.00 per month
(or ₱36,000.00/year).  (bold underscoring supplied for emphasis)
93

In Perena v. Zarate,  the Court fixed damages for loss of earning capacity to be paid to the heirs of
94

the 15-year-old high school student of Don Bosco Technical Institute killed when a moving train hit
the school van ferrying him to school while it was traversing the railroad tracks. The RTC and the CA
had awarded damages for loss of earning capacity computed on the basis of the minimum wage in
effect at the time of his death. Upholding said findings, the Court opined:

x x x, the fact that Aaron was then without a history of earnings should not be taken against his
parents and in favor of the defendants whose negligence not only cost Aaron his life and his right to
work and earn money, but also deprived his parents of their right to his presence and his services as
well. x x x. Accordingly, we emphatically hold in favor of the indemnification for Aaron's loss of
earning capacity despite him having been unemployed, because compensation of this nature is
awarded not for loss of time or earnings but for loss of the deceased's power or ability to earn
money.

The petitioners sufficiently showed that Rommel was, at the time of his untimely but much lamented
death, able-bodied, in good physical and mental state, and a student in good standing.  It should be
95

reasonable to assume that Rommel would have finished his schooling and would turn out to be a
useful and productive person had he not died. Under the foregoing jurisprudence, the petitioners
should be compensated for losing Rommel's power or ability to earn. The basis for the computation
of earning capacity is not what he would have become or what he would have wanted to be if not for
his untimely death, but the minimum wage in effect at the time of his death. The formula for this
purpose is:

Net Earning Capacity = Life Expectancy x [Gross Annual Income less Necessary Living Expenses ] 96

Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age of the deceased.
Since Rommel was 18 years of age at the time of his death, his life expectancy was 41 years. His
projected gross annual income, computed based on the minimum wage for workers in the non-
agricultural sector in effect at the time of his death,  then fixed at ₱l4.00/day, is ₱5,535.83. Allowing
97

for necessary living expenses of 50% of his projected gross annual income, his total net earning
capacity is ₱l13,484.52.

Article 2211 of the Civil Code expressly provides that interest, as a part of damages, may be
awarded in crimes and quasi-delicts at the discretion of the court. The rate of interest provided under
Article 2209 of the Civil Code is 6% per annum in the absence of stipulation to the contrary. The
legal interest rate of 6% per annum is to be imposed upon the total amounts herein awarded from
the time of the judgment of the RTC on May 10, 1991 until finality of judgment.  Moreover, pursuant
98

to Article 2212  of the Civil Code, the legal interest rate of 6o/o per annum is to be further imposed
99

on the interest earned up to the time this judgment of the Court becomes final and executory until its
full satisfaction. 100

Article 2208 of the Civil Code expressly allows the recovery of attorney's fees and expenses of
litigation when exemplary damages have been awarded.  Thus, we uphold the RTC's allocation of
1âwphi1

attorney's fees in favor of the petitioners equivalent to 10% of the total amount to be recovered,
inclusive of the damages for loss of earning capacity and interests, which we consider to be
reasonable under the circumstances.

WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on March 10, 2004 to the

extent that it absolved COSMOS BOTTLING COMPANY, INC. from liability; REVERSES and SETS
ASIDE the decision as to INTERGAMES, INC., and REINSTATES as to it the judgment rendered on
May 10, 1991 by the Regional Trial Court, Branch 83, in Quezon City subject to
the MODIFICATIONS that INTERGAMES, INC. is ORDERED TO PAY to the petitioners, in addition
to the aw3:rds thereby allowed: (a) the sum of ₱l13,484.52 as damages for the loss of Rommel
Abrogar's earning capacity; (b) interest of 6% per annum on the actual damages, moral damages,
exemplary damages and loss of earning capacity reckoned from May 10, 1991 until full payment; (c)
compounded interest of 6% per annum from the finality of this decision until full payment; and (d)
costs of suit.

SO ORDERED.
 G.R. No. 189081, August 10, 2016

GLORIA S. DY, Petitioner, v. PEOPLE OF THE PHILIPPINES, MANDY

COMMODITIES CO., INC., REPRESENTED BY ITS PRESIDENT, WILLIAM
MANDY, Respondent.

DECISION

JARDELEZA, J.:

Our law states that every person criminally liable for a felony is also civilly liable. This
civil liability ex delicto may be recovered through a civil action which, under our Rules
of Court, is deemed instituted with the criminal action. While they are actions
mandatorily fused,1 they are, in truth, separate actions whose existences are not
dependent on each other. Thus, civil liability ex delicto survives an acquittal in a
criminal case for failure to prove guilt beyond reasonable doubt. However, the Rules of
Court limits this mandatory fusion to a civil action for the recovery of civil liability ex
delicto. It, by no means, includes a civil liability arising from a different source of
obligation, as in the case of a contract. Where the civil liability is ex contractu, the court
hearing the criminal case has no authority to award damages.

The Case

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court. Petitioner
Gloria S. Dy (petitioner) seeks the reversal of the decision of the Court of Appeals (CA)
dated February 25, 2009 (Assailed Decision)2 ordering her to pay Mandy Commodities
Company, Inc. (MCCI) in the amount of P21,706,281.00.3 chanrobleslaw

The Facts

Petitioner was the former General Manager of MCCI. In the course of her employment,
petitioner assisted MCCI in its business involving several properties. One such business
pertained to the construction of warehouses over a property (Numancia Property) that
MCCI leased from the Philippine National Bank (PNB). Sometime in May 1996, in pursuit
of MCCI's business, petitioner proposed to William Mandy (Mandy), President of MCCI,
the purchase of a property owned by Pantranco. As the transaction involved a large
amount of money, Mandy agreed to obtain a loan from the International China Bank of
Commerce (ICBC). Petitioner represented that she could facilitate the approval of the
loan. True enough, ICBC granted a loan to MCCI in the amount of P20,000,000.00,
evidenced by a promissory note. As security, MCCI also executed a chattel mortgage
over the warehouses in the Numancia Property. Mandy entrusted petitioner with the
obligation to manage the payment of the loan.4 chanrobleslaw

In February 1999, MCCI received a notice of foreclosure over the mortgaged property
due to its default in paying the loan obligation.5 In order to prevent the foreclosure,
Mandy instructed petitioner to facilitate the payment of the loan. MCCI, through Mandy,
issued 13 Allied Bank checks and 12 Asia Trust Bank checks in varying amounts and in
different dates covering the period from May 18, 1999 to April 4, 2000.6 The total
amount of the checks, which were all payable to cash, was P21,706,281.00. Mandy
delivered the checks to petitioner. Mandy claims that he delivered the checks with the
instruction that petitioner use the checks to pay the loan.7 Petitioner, on the other
hand, testified that she encashed the checks and returned the money to Mandy.8 ICBC
eventually foreclosed the mortgaged property as MCCI continued to default in its
obligation to pay. Mandy claims that it was only at this point in time that he discovered
that not a check was paid to ICBC.9 chanrobleslaw

Thus, on October 7, 2002, MCCI, represented by Mandy, filed a Compiamt-Affidavit

for Estafa10 before the Office of the City Prosecutor of Manila. On March 3, 2004, an
Information11 was filed against petitioner before the Regional Trial Court (RTC) Manila.

After a full-blown trial, the RTC Manila rendered a decision12 dated November 11, 2005
(RTC Decision) acquitting petitioner. The RTC Manila found that while petitioner
admitted that she received the checks, the prosecution failed to establish that she was
under any obligation to deliver them to ICBC in payment of MCCFs loan. The trial court
made this finding on the strength of Mandy's admission that he gave the checks to
petitioner with the agreement that she would encash them. Petitioner would then pay
ICBC using her own checks. The trial court further made a finding that Mandy and
petitioner entered into a contract of loan.13 Thus, it held that the prosecution failed to
establish an important element of the crime of estafa—misappropriation or conversion.
However, while the RTC Manila acquitted petitioner, it ordered her to pay the amount of
the checks. The dispositive portion of the RTC Decision states —
WHEREFORE, the prosecution having failed to establish the guilt of the accused beyond
reasonable doubt, judgment is hereby rendered ACQUITTING the accused of the offense
charged. With costs de officio.

The accused is however civilly liable to the complainant for the amount of
P21,706,281.00.

SO ORDERED.14 chanroblesvirtuallawlibrary

Petitioner filed an appeal15 of the civil aspect of the RTC Decision with the CA. In the
Assailed Decision,16 the CA found the appeal without merit. It held that the acquittal of
petitioner does not necessarily absolve her of civil liability. The CA said that it is settled
that when an accused is acquitted on the basis of reasonable doubt, courts may still
find him or her civilly liable if the evidence so warrant. The CA explained that the
evidence on record adequately prove that petitioner received the checks as a loan from
MCCI. Thus, preventing the latter from recovering the amount of the checks would
constitute unjust enrichment. Hence, the Assailed Decision ruled
WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated
November 11, 2005 of the Regional Trial Court, Manila, Branch 33 in Criminal Case No.
04-224294 which found Gloria Dy civilly liable to William Mandy is AFFIRMED.

SO ORDERED.17 chanroblesvirtuallawlibrary

The CA also denied petitioner's motion for reconsideration in a resolution18 dated August

3, 2009.

Hence, this Petition for Review on Certiorari (Petition). Petitioner argues that since she
was acquitted for failure of the prosecution to prove all the elements of the crime
charged, there was therefore no crime committed.19 As there was no crime, any civil
liability ex delicto cannot be awarded.
 The Issues

The central issue is the propriety of making a finding of civil liability in a criminal case
for estafa when the accused is acquitted for failure of the prosecution to prove all the
elements of the crime charged.

The Ruling of the Court

We grant the petition.

Civil Liability Arising From Crime

Our laws recognize a bright line distinction between criminal and civil liabilities. A crime
is a liability against the state. It is prosecuted by and for the state. Acts considered
criminal are penalized by law as a means to protect the society from dangerous
transgressions. As criminal liability involves a penalty affecting a person's liberty, acts
are only treated criminal when the law clearly says so. On the other hand, civil liabilities
take a less public and more private nature. Civil liabilities are claimed through civil
actions as a means to enforce or protect a right or prevent or redress a wrong.20 They
do not carry with them the imposition of imprisonment as a penalty. Instead, civil
liabilities are compensated in the form of damages.

Nevertheless, our jurisdiction recognizes that a crime has a private civil component.
Thus, while an act considered criminal is a breach of law against the State, our legal
system allows for the recovery of civil damages where there is a private person injured
by a criminal act. It is in recognition of this dual nature of a criminal act that our
Revised Penal Code provides that every person criminally liable is also civilly
liable.21 This is the concept of civil liability ex delicto.

This is echoed by the New Civil Code when it recognizes acts or omissions punished by
law as a separate source of obligation.22 This is reinforced by Article 30 of the same
code which refers to the filing of a separate civil action to demand civil liability arising
from a criminal offense.23 chanrobleslaw

The Revised Penal Code fleshes out this civil liability in Article 10424 which states that it
includes restitution, reparation of damage caused and indemnification for consequential
damages.

Rules of procedure for criminal and civil actions involving the same act or omission

The law and the rules of procedure provide for a precise mechanism in instituting a civil
action pertaining to an act or omission which is also subject of a criminal case. Our
Rules of Court prescribes a kind of fusion such that, subject to certain defined
qualifications, when a criminal action is instituted, the civil action for the recovery of
the civil liability arising from the offense is deemed instituted as well.25
cralawredchanrobleslaw

However, there is an important difference between civil and criminal proceedings that
require a fine distinction as to how these twin actions shall proceed. These two
proceedings involve two different standards of proof. A criminal action requires proof of
guilt beyond reasonable doubt while a civil action requires a lesser quantum of proof,
that of preponderance of evidence. This distinction also agrees with the essential
principle in our legal system that while a criminal liability carries with it a corresponding
civil liability, they are nevertheless separate and distinct. In other words, these two
liabilities may co-exist but their existence is not dependent on each other.26 chanrobleslaw

The Civil Code states that when an accused in a criminal prosecution is acquitted on the
ground that his guilt has not been proven beyond reasonable doubt, a civil action for
damages for the same act or omission may be filed. In the latter case, only
preponderance of evidence is required.27 This is supported by the Rules of Court which
provides that the extinction of the criminal action does not result in the extinction of the
corresponding civil action.28 The latter may only be extinguished when there is a
"finding in a final judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist."29 Consistent with this, the Rules of Court
requires that in judgments of acquittal the court must state whether "the evidence of
the prosecution absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if
the act or omission from which the civil liability might arise did not exist."30
chanrobleslaw

Thus, whether an exoneration from the criminal action should affect the corresponding
civil action depends on the varying kinds of acquittal. In Manantan v. Court of
Appeals,31 we explained —
Our law recognizes two kinds of acquittal, with different effects on the civil liability of
the accused. First is an acquittal on the ground that the accused is not the author of the
act or omission complained of. This instance closes the door to civil liability, for a
person who has been found to be not the perpetrator of any act or omission cannot and
can never be held liable for such act or omission. There being no delict civil liability ex
delicto is out of the question, and the civil action, if any, which may be instituted must
be based on grounds other than the delict complained of. This is the situation
contemplated in Rule 111 of the Rules of Court. The second instance is an acquittal
based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of
the accused has not been satisfactorily established, he is not exempt from civil liability
which may be proved by preponderance of evidence only. This is the situation
contemplated in Article 29 of the Civil Code, where the civil action for damages is "for
the same act or omission." Although the two actions have different purposes, the
matters discussed in the civil case are similar to those discussed in the criminal case.
However, the judgment In the criminal proceeding cannot be read in evidence In the
civil action to establish any fact there determined, even though both actions involve the
same act or omission. The reason for this rule is that the parties are not the same and
secondarily, different rules of evidence are applicable. Hence, notwithstanding herein
petitioner's acquittal, the Court of Appeals in determining whether Article 29 applied,
was not precluded from looking into the question of petitioner's negligence or reckless
imprudence.32 chanroblesvirtuallawlibrary

In Dayap v. Sendiong,33 we further said —

The acquittal of the accused does not automatically preclude a judgment against him on
the civil aspect of the case. The extinction of the penal action does not carry with it the
extinction of the civil liability where: (a) the acquittal is based on reasonable doubt as
only preponderance of evidence is required; (b) the court declares that the liability of
the accused is only civil; and (c) the civil liability of the accused does not arise from or
is not based upon the crime of which the accused is acquitted. However, the civil action
based on delict may be deemed extinguished if mere is a finding on the final judgment
in the criminal action that the act or omission from which the civil liability may arise did
not exist or where the accused did not commit the acts or omission imputed to him.34 chanroblesvirtuallawlibrary

Hence, a civil action filed for the purpose of enforcing civil liability ex delicto, even if
mandatorily instituted with the corresponding criminal action, survives an acquittal
when it is based on the presence of reasonable doubt. In these instances, while the
evidence presented does not establish the fact of the crime with moral certainty, the
civil action still prevails for as long as the greater weight of evidence tilts in favor of a
finding of liability. This means that while the mind of the court cannot rest easy in
penalizing the accused for the commission of a crime, it nevertheless finds that he or
she committed or omitted to perform acts which serve as a separate source of
obligation. There is no sufficient proof that the act or omission is criminal beyond
reasonable doubt, but there is a preponderance of evidence to show that the act or
omission caused injury which demands compensation.

Civil Liability Ex Delicto in Estafa Cases

Our laws penalize criminal fraud which causes damage capable of pecuniary estimation
through estafa under Article 315 of the Revised Penal Code. In general, the elements
of estafa are:ChanRoblesVirtualawlibrary

(1) That the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit;
and
(2) That damage or prejudice capable of pecuniary estimation is caused to the offended party
or third person.
The essence of the crime is the unlawful abuse of confidence or deceit in order to cause
damage. As this Court previously held, "the element of fraud or bad faith is
indispensable."35 Our law abhors the act of defrauding another person by abusing his
trust or deceiving him, such that, it criminalizes this kind of fraud.

Article 315 of the Revised Penal Code identifies the circumstances which
constitute estafa. Article 315, paragraph 1 (b) states that estafa is committed by abuse
of confidence —
Art. 315. Swindling (estafa)  - x x x (b) By misappropriating or converting, to the
prejudice of another, money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under any other obligation
involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property.
In this kind of estafa, the fraud which the law considers as criminal is the act of
misappropriation or conversion. When the element of misappropriation or conversion is
missing, there can be no estafa. In such case, applying the foregoing discussions on
civil liability ex delicto, there can be no civil liability as there is no act or omission from
which any civil liability may be sourced. However, when an accused is acquitted
because a reasonable doubt exists as to the existence of misappropriation or
conversion, then civil liability may still be awarded. This means that, while there is
evidence to prove fraud, such evidence does not suffice to convince the court to the
point of moral certainty that the act of fraud amounts to estafa. As the act was
nevertheless proven, albeit without sufficient proof justifying the imposition of any
criminal penalty, civil liability exists.
In this case, the RTC Manila acquitted petitioner because the prosecution failed to
establish by sufficient evidence the element of misappropriation or conversion. There
was no adequate evidence to prove that Mandy gave the checks to petitioner with the
instruction that she will use them to pay the ICBC loan. Citing Mandy's own testimony
in open court, the RTC Manila held that when Mandy delivered the checks to petitioner,
their agreement was that it was a "sort of loan."36 In the dispositive portion of the RTC
Decision, the RTC Manila ruled that the prosecution "failed to establish the guilt of the
accused beyond reasonable doubt."37 It then proceeded to order petitioner to pay the
amount of the loan.

The ruling of the RTC Manila was affirmed by the CA. It said that "[t]he acquittal of
Gloria Dy is anchored on the ground that her guilt was not proved beyond reasonable
doubt - not because she is not the author of the act or omission complained of. x x x
The trial court found no trickery nor deceit in obtaining money from the private
complainant; instead, it concluded that the money obtained was undoubtedly a loan."38

Our jurisprudence on this matter diverges.

Earlier cases ordered the dismissal of the civil action for recovery of civil liability ex
delicto whenever there is a finding that there was no estafa but rather an obligation to
pay under a contract. In People v. Pantig,39 this Court affirmed the ruling of the lower
court acquitting Pantig, but revoked the portion sentencing him to pay the offended
party the amount of money alleged to have been obtained through false and fraudulent
representations, thus —
The trial court found as a fact that the sum of P1,200, ordered to be paid in the
judgment of acquittal, was received by the defendant-appellant as loan. This finding is
inconsistent with the existence of the criminal act charged in the information. The
liability of the defendant for the return of the amount so received arises from a
civil contract, not from a criminal act, and may not be enforced in the criminal
case.

The portion of the judgment appealed from, which orders the defendant-appellant to
pay the sum of Pi ,200 to the offended party, is hereby revoked, without prejudice to
the filing of a civil action for the recovery of the said amount.40
chanroblesvirtuallawlibrary

41
This was also the import of the ruling in People v. Singson.  In that case, this Court
found that "the evidence [was] not sufficient to establish the existence of fraud or
deceit on the part of the accused. x x x And when there is no proven deceit or fraud,
there is no crime of estafa."42 While we also said that the established facts may prove
Singson's civil liability (obligation to pay under a contract of sale), we nevertheless
made no finding of civil liability because "our mind cannot rest easy on the certainty of
guilt"43 considering the above finding. The dispositive portion stated that Singson is
acquitted "without prejudice to any civil liability which may be established in a civil case
against her."44
chanrobleslaw

However, our jurisprudence on the matter appears to have changed in later years.

In Eusebio-Calderon v. People,45 this Court affirmed the finding of the CA that Calderon

"did not employ trickery or deceit in obtaining money from the private complainants,
instead, it concluded that the money obtained was undoubtedly loans for which
[Calderon] paid interest."46 Thus, this Court upheld Calderon's acquittal of estafa, but
found her civilly liable for the principal amount borrowed from the private
complainants.47 chanrobleslaw

The ruling was similar in People v. Cuyugan.48 In that case, we acquitted Cuyugan
of estafa for failure of the prosecution to prove fraud. We held that the transaction
between Cuyugan and private complainants was a loan to be used by Cuyugan in her
business. Thus, this Court ruled that Cuyugan has the obligation, which is civil in
character, to pay the amount borrowed.49 chanrobleslaw

We hold that the better rule in ascertaining civil liability in estafa cases is that
pronounced in Pantig and Singson. The rulings in these cases are more in accord with
the relevant provisions of the Civil Code, and the Rules of Court. They are also logically
consistent with this Court's pronouncement in Manantan.

Under Pantig and Singson, whenever the elements of estafa are not established, and

that the delivery of any personal property was made pursuant to a contract, any civil
liability arising from the estafa cannot be awarded in the criminal case. This is because
the civil liability arising from the contract is not civil liability ex delicto, which arises
from the same act or omission constituting the crime. Civil liability ex delicto is the
liability sought to be recovered in a civil action deemed instituted with the criminal
case.

The situation envisioned in the foregoing cases, as in this case, is civil liability ex
contractu where the civil liability arises from an entirely different source of obligation.
Therefore, it is not the type of civil action deemed instituted in the criminal case, and
consequently must be filed separately. This is necessarily so because whenever the
court makes a finding that the elements of estafa do not exist, it effectively says that
there is no crime. There is no act or omission that constitutes criminal fraud. Civil
liability ex delicto cannot be awarded as it cannot be sourced from something that does
not exist.

When the court finds that the source of obligation is in fact, a contract, as in a contract
of loan, it takes a position completely inconsistent with the presence of estafa.
In estafa, a person parts with his money because of abuse of confidence or deceit. In a
contract, a person willingly binds himself or herself to give something or to render some
service.50 In estafa, the accused's failure to account for the property received amounts
to criminal fraud. In a contract, a party's failure to comply with his obligation is only a
contractual breach. Thus, any finding that the source of obligation is a contract
negates estafa. The finding, in turn, means that there is no civil liability ex delicto.
Thus, the rulings in the foregoing cases are consistent with the concept of fused civil
and criminal actions, and the different sources of obligations under our laws.

We apply this doctrine to the facts of this case. Petitioner was acquitted by the RTC
Manila because of the absence of the element of misappropriation or conversion. The
RTC Manila, as affirmed by the CA, found that Mandy delivered the checks to petitioner
pursuant to a loan agreement. Clearly, there is no crime of estafa. There is no proof of
the presence of any act or omission constituting criminal fraud. Thus, civil liability ex
delicto cannot be awarded because there is no act or omission punished by law which
can serve as the source of obligation. Any civil liability arising from the loan takes the
nature of a civil liability ex contractu. It does not pertain to the civil action deemed
instituted with the criminal case.

In Manantan, this Court explained the effects of this result on the civil liability deemed
instituted with the criminal case. At the risk of repetition, Manantan held that when
there is no delict, "civil liability ex delicto is out of the question, and the civil action, if
any, which may be instituted must be based on grounds other than
the delict complained of."51 In Dy's case, the civil liability arises out of contract—a
different source of obligation apart from an act or omission punished by law—and must
be claimed in a separate civil action.

Violation of Due Process

We further note that the evidence on record never fully established the terms of this
loan contract. As the trial before the RTC Manila was focused on proving estafa, the
loan contract was, as a consequence, only tangentially considered. This provides
another compelling reason why the civil liability arising from the loan should be
instituted in a separate civil case. A civil action for collection of sum of money filed
before the proper court will provide for a better venue where the terms of the loan and
other relevant details may be received. While this may postpone a warranted recovery
of the civil liability, this Court deems it more important to uphold the principles
underlying the inherent differences in the various sources of obligations under our law,
and the rule that fused actions only refer to criminal and civil actions involving the
same act or omission. These legal tenets play a central role in this legal system. A
confusion of these principles will ultimately jeopardize the interests of the parties
involved. Actions focused on proving estafa is not the proper vehicle to thresh out civil
liability arising from a contract.52 The Due Process Clause of the Constitution dictates
that a civil liability arising from a contract must be litigated in a separate civil action.

Section 1 of the Bill of Rights states that no person shall be deprived of property
without due process of law. This provision protects a person's right to both substantive
and procedural due process. Substantive due process looks into the validity of a law
and protects against arbitrariness.53 Procedural due process, on the other hand,
guarantees procedural fairness.54 It requires an ascertainment of "what process is due,
when it is due, and the degree of what is due."55 This aspect of due process is at the
heart of this case.

In general terms, procedural due process means the right to notice and hearing.56 More
specifically, our Rules of Court provides for a set of procedures through which a person
may be notified of the claims against him or her as well as methods through which he
or she may be given the adequate opportunity to be heard.

The Rules of Court requires that any person invoking the power of the judiciary to
protect or enforce a right or prevent or redress a wrong57 must file an initiatory
pleading which embodies a cause of action,58 which is defined as the act or omission by
which a party violates a right of another.59 The contents of an initiatory pleading
alleging a cause of action will vary depending on the source of the obligation involved.
In the case of an obligation arising from a contract, as in this case, the cause of action
in an initiatory pleading will involve the duties of the parties to the contract, and what
particular obligation was breached. On the other hand, when the obligation arises from
an act or omission constituting a crime, the cause of action must necessarily be
different. In such a case, the initiatory pleading will assert as a cause of action the act
or omission of respondent, and the specific criminal statute he or she violated. Where
the initiatory pleading fails to state a cause of action, the respondent may file a motion
to dismiss even before trial.60 These rules embody the fundamental right to notice
under the Due Process Clause of the Constitution.

In a situation where a court (in a fused action for the enforcement of criminal and civil
liability) may validly order an accused-respondent to pay an obligation arising from a
contract, a person's right to be notified of the complaint, and the right to have the
complaint dismissed if there is no cause of action, are completely defeated. In this
event, the accused-respondent is completely unaware of the nature of the liability
claimed against him or her at the onset of the case. The accused-respondent will not
have read any complaint stating the cause of action of an obligation arising from a
contract. All throughout the trial, the accused-respondent is made to believe that
should there be any civil liability awarded against him or her, this liability is rooted from
the act or omission constituting the crime. The accused-respondent is also deprived of
the remedy of having the complaint dismissed through a motion to dismiss before trial.
In a fused action, the accused-respondent could not have availed of this remedy
because he or she was not even given an opportunity to ascertain what cause of action
to look for in the initiatory pleading. In such a case, the accused-respondent is
blindsided. He or she could not even have prepared the appropriate defenses and
evidence to protect his or her interest. This is not the concept of fair play embodied in
the Due Process Clause. It is a clear violation of a person's right to due process.

The Rules of Court also allows a party to a civil action certain remedies that enable him
or her to effectively present his or her case. A party may file a cross-claim, a
counterclaim or a third-party complaint.61 The Rules of Court prohibits these remedies
in a fused civil and criminal case.62 The Rules of Court requires that any cross-claim,
counterclaim or third-party complaint must be instituted in a separate civil action.63 In a
legal regime where a court may order an accused in a fused action to pay civil liability
arising from a contract, the accused-respondent is completely deprived of the remedy
to file a cross-claim, a counterclaim or a third-party complaint. This—coupled with an
accused-respondent's inability to adequately prepare his or her defense because of lack
of adequate notice of the claims against him or her—prevents the accused-respondent
from having any right to a meaningful hearing. The right to be heard under the Due
Process Clause requires not just any kind of an opportunity to be heard. It mandates
that a party to a case must have the chance to be heard in a real and meaningful
sense. It does not require a perfunctory hearing, but a court proceeding where the
party may adequately avail of the procedural remedies granted to him or her. A court
decision resulting from this falls short of the mandate of the Due Process Clause.

Indeed, the language of the Constitution is clear. No person shall be deprived of

property without due process of law. Due Process, in its procedural sense, requires, in
essence, the right to notice and hearing. These rights are further fleshed out in the
Rules of Court. The Rules of Court enforces procedural due process because, to repeat
the words of this Court in Secretary of Justice v. Lantion, it provides for "what process
is due, when it is due, and the degree of what is due."64 A court ordering an accused in
a fused action to pay his or her contractual liability deprives him or her of his or her
property without the right to notice and hearing as expressed in the procedures and
remedies under the Rules of Court. Thus, any court ruling directing an accused in a
fused action to pay civil liability arising from a contract is one that completely
disregards the Due Process Clause. This ruling must be reversed and the Constitution
upheld.

Conclusion

The lower courts erred when they ordered petitioner to pay her civil obligation arising
from a contract of loan in the same criminal case where she was acquitted on the
ground that there was no crime. Any contractual obligation she may have must be
litigated in a separate civil action involving the contract of loan. We clarify that in cases
where the accused is acquitted on the ground that there is no crime, the civil action
deemed instituted with the criminal case cannot prosper precisely because there is no
delict from which any civil obligation may be sourced. The peculiarity of this case is the
finding that petitioner, in fact, has an obligation arising from a contract. This civil action
arising from the contract is not necessarily extinguished. It can be instituted in the
proper court through the proper civil action.

We note that while there is no written contract of loan in this case, there is an oral
contract of loan which must be brought within six years.65 Under the facts of the case, it
appears that any breach in the obligation to pay the loan may have happened between
1996 and 1999, or more than six years since this case has been instituted. This
notwithstanding, we find that the civil action arising from the contract of loan has not
yet prescribed. Article 1150 of the Civil Code states —
Art. 1150. The time for prescription for all kinds of actions, when there is no special
provision which ordains otherwise, shall be counted from the day they may be brought.
We held in numerous cases that it is the legal possibility of bringing the action that
determines the starting point for the computation of the period of prescription.67 We
highlight the unique circumstances surrounding this case. As discussed in this decision,
there has been diverse jurisprudence as to the propriety of ordering an accused to pay
an obligation arising from a contract in the criminal case where the accused was
acquitted on the ground that there is no crime. Litigants, such as MCCI, cannot be
blamed for relying on prior rulings where the recovery on a contract of loan in a
criminal case for estafa was allowed. We have found the opportunity to clarify this
matter through this decision. As it is only now that we delineate the rules governing the
fusion of criminal and civil actions pertaining to estafa, it is only upon the promulgation
of this judgment that litigants have a clear understanding of the proper recourse in
similar cases. We therefore rule that insofar as MCCI is concerned, the filing of an
action, if any (that may be sourced from the contract of loan), becomes a legal
possibility only upon the finality of this decision which definitively ruled upon the
principles on fused actions.

We add, however, that upon finality of this decision, prospective litigants should
become more circumspect in ascertaining their course of action in similar cases.
Whenever a litigant erroneously pursues an estafa case, and the accused is
subsequently acquitted because the obligation arose out of a contract, the prescriptive
period will still be counted from the time the cause of action arose. In this eventuality,
it is probable that the action has already prescribed by the time the criminal case shall
have been completed. This possibility demands that prospective litigants do not
haphazardly pursue the filing of an estafa case in order to force an obligor to pay his or
her obligation with the threat of criminal conviction. It compels litigants to be honest
and fair in their judgment as to the proper action to be filed. This ruling should deter
litigants from turning to criminal courts as their collection agents, and should provide a
disincentive to the practice of filing of criminal cases based on unfounded grounds in
order to provide a litigant a bargaining chip in enforcing contracts.

WHEREFORE, in view of the foregoing, the Petition is GRANTED. The Decision of the
CA dated February 25, 2009 is REVERSED. This is however, without prejudice to any
civil action which may be filed to claim civil liability arising from the contract.

SO ORDERED.
G.R. No. 109125 December 2, 1994

ANG YU ASUNCION, ARTHUR GO AND KEH TIONG, petitioners,

vs.
THE HON. COURT OF APPEALS and BUEN REALTY DEVELOPMENT
CORPORATION, respondents.

Antonio M. Albano for petitioners.

Umali, Soriano & Associates for private respondent.

VITUG, J.:

Assailed, in this petition for review, is the decision of the Court of Appeals, dated 04 December
1991, in CA-G.R. SP No. 26345 setting aside and declaring without force and effect the orders of
execution of the trial court, dated 30 August 1991 and 27 September 1991, in Civil Case No. 87-
41058.

The antecedents are recited in good detail by the appellate court thusly:

On July 29, 1987 a Second Amended Complaint for Specific Performance was filed
by Ang Yu Asuncion and Keh Tiong, et al., against Bobby Cu Unjieng, Rose Cu
Unjieng and Jose Tan before the Regional Trial Court, Branch 31, Manila in Civil
Case No. 87-41058, alleging, among others, that plaintiffs are tenants or lessees of
residential and commercial spaces owned by defendants described as Nos. 630-638
Ongpin Street, Binondo, Manila; that they have occupied said spaces since 1935 and
have been religiously paying the rental and complying with all the conditions of the
lease contract; that on several occasions before October 9, 1986, defendants
informed plaintiffs that they are offering to sell the premises and are giving them
priority to acquire the same; that during the negotiations, Bobby Cu Unjieng offered a
price of P6-million while plaintiffs made a counter offer of P5-million; that plaintiffs
thereafter asked the defendants to put their offer in writing to which request
defendants acceded; that in reply to defendant's letter, plaintiffs wrote them on
October 24, 1986 asking that they specify the terms and conditions of the offer to
sell; that when plaintiffs did not receive any reply, they sent another letter dated
January 28, 1987 with the same request; that since defendants failed to specify the
terms and conditions of the offer to sell and because of information received that
defendants were about to sell the property, plaintiffs were compelled to file the
complaint to compel defendants to sell the property to them.

Defendants filed their answer denying the material allegations of the complaint and
interposing a special defense of lack of cause of action.

After the issues were joined, defendants filed a motion for summary judgment which
was granted by the lower court. The trial court found that defendants' offer to sell was
never accepted by the plaintiffs for the reason that the parties did not agree upon the
terms and conditions of the proposed sale, hence, there was no contract of sale at
all. Nonetheless, the lower court ruled that should the defendants subsequently offer
their property for sale at a price of P11-million or below, plaintiffs will have the right of
first refusal. Thus the dispositive portion of the decision states:

WHEREFORE, judgment is hereby rendered in favor of the

defendants and against the plaintiffs summarily dismissing the
complaint subject to the aforementioned condition that if the
defendants subsequently decide to offer their property for sale for a
purchase price of Eleven Million Pesos or lower, then the plaintiffs
has the option to purchase the property or of first refusal, otherwise,
defendants need not offer the property to the plaintiffs if the purchase
price is higher than Eleven Million Pesos.

SO ORDERED.

Aggrieved by the decision, plaintiffs appealed to this Court in

CA-G.R. CV No. 21123. In a decision promulgated on September 21, 1990 (penned
by Justice Segundino G. Chua and concurred in by Justices Vicente V. Mendoza and
Fernando A. Santiago), this Court affirmed with modification the lower court's
judgment, holding:

In resume, there was no meeting of the minds between the parties

concerning the sale of the property. Absent such requirement, the
claim for specific performance will not lie. Appellants' demand for
actual, moral and exemplary damages will likewise fail as there exists
no justifiable ground for its award. Summary judgment for defendants
was properly granted. Courts may render summary judgment when
there is no genuine issue as to any material fact and the moving party
is entitled to a judgment as a matter of law (Garcia vs. Court of
Appeals, 176 SCRA 815). All requisites obtaining, the decision of the
court a quo is legally justifiable.

WHEREFORE, finding the appeal unmeritorious, the judgment

appealed from is hereby AFFIRMED, but subject to the following
modification: The court a quo in the aforestated decision gave the
plaintiffs-appellants the right of first refusal only if the property is sold
for a purchase price of Eleven Million pesos or lower; however,
considering the mercurial and uncertain forces in our market
economy today. We find no reason not to grant the same right of first
refusal to herein appellants in the event that the subject property is
sold for a price in excess of Eleven Million pesos. No pronouncement
as to costs.

SO ORDERED.

The decision of this Court was brought to the Supreme Court by petition for review
on certiorari. The Supreme Court denied the appeal on May 6, 1991 "for insufficiency
in form and substances" (Annex H, Petition).

On November 15, 1990, while CA-G.R. CV No. 21123 was pending consideration by
this Court, the Cu Unjieng spouses executed a Deed of Sale (Annex D, Petition)
transferring the property in question to herein petitioner Buen Realty and
Development Corporation, subject to the following terms and conditions:
 1. That for and in consideration of the sum of FIFTEEN MILLION
PESOS (P15,000,000.00), receipt of which in full is hereby
acknowledged, the VENDORS hereby sells, transfers and conveys
for and in favor of the VENDEE, his heirs, executors, administrators
or assigns, the above-described property with all the improvements
found therein including all the rights and interest in the said property
free from all liens and encumbrances of whatever nature, except the
pending ejectment proceeding;

2. That the VENDEE shall pay the Documentary Stamp Tax,

registration fees for the transfer of title in his favor and other
expenses incidental to the sale of above-described property including
capital gains tax and accrued real estate taxes.

As a consequence of the sale, TCT No. 105254/T-881 in the name of the Cu Unjieng
spouses was cancelled and, in lieu thereof, TCT No. 195816 was issued in the name
of petitioner on December 3, 1990.

On July 1, 1991, petitioner as the new owner of the subject property wrote a letter to
the lessees demanding that the latter vacate the premises.

On July 16, 1991, the lessees wrote a reply to petitioner stating that petitioner
brought the property subject to the notice of lis pendens regarding Civil Case No. 87-
41058 annotated on TCT No. 105254/T-881 in the name of the Cu Unjiengs.

The lessees filed a Motion for Execution dated August 27, 1991 of the Decision in
Civil Case No. 87-41058 as modified by the Court of Appeals in CA-G.R. CV No.
21123.

On August 30, 1991, respondent Judge issued an order (Annex A, Petition) quoted
as follows:

Presented before the Court is a Motion for Execution filed by plaintiff

represented by Atty. Antonio Albano. Both defendants Bobby Cu
Unjieng and Rose Cu Unjieng represented by Atty. Vicente Sison and
Atty. Anacleto Magno respectively were duly notified in today's
consideration of the motion as evidenced by the rubber stamp and
signatures upon the copy of the Motion for Execution.

The gist of the motion is that the Decision of the Court dated
September 21, 1990 as modified by the Court of Appeals in its
decision in CA G.R. CV-21123, and elevated to the Supreme Court
upon the petition for review and that the same was denied by the
highest tribunal in its resolution dated May 6, 1991 in G.R. No.
L-97276, had now become final and executory. As a consequence,
there was an Entry of Judgment by the Supreme Court as of June 6,
1991, stating that the aforesaid modified decision had already
become final and executory.

It is the observation of the Court that this property in dispute was the
subject of the Notice of Lis Pendens and that the modified decision of
this Court promulgated by the Court of Appeals which had become
 final to the effect that should the defendants decide to offer the
property for sale for a price of P11 Million or lower, and considering
the mercurial and uncertain forces in our market economy today, the
same right of first refusal to herein plaintiffs/appellants in the event
that the subject property is sold for a price in excess of Eleven Million
pesos or more.

WHEREFORE, defendants are hereby ordered to execute the

necessary Deed of Sale of the property in litigation in favor of
plaintiffs Ang Yu Asuncion, Keh Tiong and Arthur Go for the
consideration of P15 Million pesos in recognition of plaintiffs' right of
first refusal and that a new Transfer Certificate of Title be issued in
favor of the buyer.

All previous transactions involving the same property notwithstanding

the issuance of another title to Buen Realty Corporation, is hereby set
aside as having been executed in bad faith.

SO ORDERED.

On September 22, 1991 respondent Judge issued another order, the dispositive
portion of which reads:

WHEREFORE, let there be Writ of Execution issue in the above-

entitled case directing the Deputy Sheriff Ramon Enriquez of this
Court to implement said Writ of Execution ordering the defendants
among others to comply with the aforesaid Order of this Court within
a period of one (1) week from receipt of this Order and for defendants
to execute the necessary Deed of Sale of the property in litigation in
favor of the plaintiffs Ang Yu Asuncion, Keh Tiong and Arthur Go for
the consideration of P15,000,000.00 and ordering the Register of
Deeds of the City of Manila, to cancel and set aside the title already
issued in favor of Buen Realty Corporation which was previously
executed between the latter and defendants and to register the new
title in favor of the aforesaid plaintiffs Ang Yu Asuncion, Keh Tiong
and Arthur Go.

SO ORDERED.

On the same day, September 27, 1991 the corresponding writ of execution (Annex
C, Petition) was issued.1

On 04 December 1991, the appellate court, on appeal to it by private respondent, set aside and
declared without force and effect the above questioned orders of the court a quo.

In this petition for review on certiorari, petitioners contend that Buen Realty can be held bound by the
writ of execution by virtue of the notice of lis pendens, carried over on TCT No. 195816 issued in the
name of Buen Realty, at the time of the latter's purchase of the property on 15 November 1991 from
the Cu Unjiengs.

We affirm the decision of the appellate court.

A not too recent development in real estate transactions is the adoption of such arrangements as the
right of first refusal, a purchase option and a contract to sell. For ready reference, we might point out
some fundamental precepts that may find some relevance to this discussion.

An obligation is a juridical necessity to give, to do or not to do (Art. 1156, Civil Code). The obligation
is constituted upon the concurrence of the essential elements thereof, viz: (a) The vinculum
juris or juridical tie which is the efficient cause established by the various sources of obligations
(law, contracts, quasi-contracts, delicts and quasi-delicts); (b) the object which is the prestation or
conduct; required to be observed (to give, to do or not to do); and (c) the subject-persons who,
viewed from the demandability of the obligation, are the active (obligee) and the passive (obligor)
subjects.

Among the sources of an obligation is a contract (Art. 1157, Civil Code), which is a meeting of minds
between two persons whereby one binds himself, with respect to the other, to give something or to
render some service (Art. 1305, Civil Code). A contract undergoes various stages that include its
negotiation or preparation, its perfection and, finally, its consummation. Negotiation covers the
period from the time the prospective contracting parties indicate interest in the contract to the time
the contract is concluded (perfected). The perfection of the contract takes place upon the
concurrence of the essential elements thereof. A contract which is consensual as to perfection is so
established upon a mere meeting of minds, i.e., the concurrence of offer and acceptance, on the
object and on the cause thereof. A contract which requires, in addition to the above, the delivery of
the object of the agreement, as in a pledge or commodatum, is commonly referred to as
a real contract. In a solemn contract, compliance with certain formalities prescribed by law, such as
in a donation of real property, is essential in order to make the act valid, the prescribed form being
thereby an essential element thereof. The stage of consummation begins when the parties perform
their respective undertakings under the contract culminating in the extinguishment thereof.

Until the contract is perfected, it cannot, as an independent source of obligation, serve as a binding
juridical relation. In sales, particularly, to which the topic for discussion about the case at bench
belongs, the contract is perfected when a person, called the seller, obligates himself, for a price
certain, to deliver and to transfer ownership of a thing or right to another, called the buyer, over
which the latter agrees. Article 1458 of the Civil Code provides:

Art. 1458. By the contract of sale one of the contracting parties obligates himself to
transfer the ownership of and to deliver a determinate thing, and the other to pay
therefor a price certain in money or its equivalent.

A contract of sale may be absolute or conditional.

When the sale is not absolute but conditional, such as in a "Contract to Sell" where invariably the
ownership of the thing sold is retained until the fulfillment of a positive suspensive condition
(normally, the full payment of the purchase price), the breach of the condition will prevent the
obligation to convey title from acquiring an obligatory force.  In Dignos vs. Court of Appeals (158
2

SCRA 375), we have said that, although denominated a "Deed of Conditional Sale," a sale is still
absolute where the contract is devoid of any proviso that title is reserved or the right to unilaterally
rescind is stipulated, e.g., until or unless the price is paid. Ownership will then be transferred to the
buyer upon actual or constructive delivery (e.g., by the execution of a public document) of the
property sold. Where the condition is imposed upon the perfection of the contract itself, the failure of
the condition would prevent such perfection.  If the condition is imposed on the obligation of a party
3

which is not fulfilled, the other party may either waive the condition or refuse to proceed with the sale
(Art. 1545, Civil Code).4
An unconditional mutual promise to buy and sell, as long as the object is made determinate and the
price is fixed, can be obligatory on the parties, and compliance therewith may accordingly be
exacted. 5

An accepted unilateral promise which specifies the thing to be sold and the price to be paid, when

coupled with a valuable consideration distinct and separate from the price, is what may properly be
termed a perfected contract of option. This contract is legally binding, and in sales, it conforms with
the second paragraph of Article 1479 of the Civil Code, viz:

Art. 1479. . . .

An accepted unilateral promise to buy or to sell a determinate thing for a price certain
is binding upon the promissor if the promise is supported by a consideration distinct
from the price. (1451a) 6

Observe, however, that the option is not the contract of sale itself.  The optionee has the right, but
7

not the obligation, to buy. Once the option is exercised timely, i.e., the offer is accepted before a
breach of the option, a bilateral promise to sell and to buy ensues and both parties are then
reciprocally bound to comply with their respective undertakings. 8

Let us elucidate a little. A negotiation is formally initiated by an offer. An imperfect

promise (policitacion) is merely an offer. Public advertisements or solicitations and the like are
ordinarily construed as mere invitations to make offers or only as proposals. These relations, until a
contract is perfected, are not considered binding commitments. Thus, at any time prior to the
perfection of the contract, either negotiating party may stop the negotiation. The offer, at this stage,
may be withdrawn; the withdrawal is effective immediately after its manifestation, such as by its
mailing and not necessarily when the offeree learns of the withdrawal (Laudico vs. Arias, 43 Phil.
270). Where a period is given to the offeree within which to accept the offer, the following rules
generally govern:

(1) If the period is not itself founded upon or supported by a consideration, the offeror is still free and
has the right to withdraw the offer before its acceptance, or, if an acceptance has been made, before
the offeror's coming to know of such fact, by communicating that withdrawal to the offeree (see Art.
1324, Civil Code; see also Atkins, Kroll & Co. vs. Cua, 102 Phil. 948, holding that this rule is
applicable to a unilateral promise to sell under Art. 1479, modifying the previous decision in South
Western Sugar vs. Atlantic Gulf, 97 Phil. 249; see also Art. 1319, Civil Code; Rural Bank of
Parañaque, Inc., vs. Remolado, 135 SCRA 409; Sanchez vs. Rigos, 45 SCRA 368). The right to
withdraw, however, must not be exercised whimsically or arbitrarily; otherwise, it could give rise to a
damage claim under Article 19 of the Civil Code which ordains that "every person must, in the
exercise of his rights and in the performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith."

(2) If the period has a separate consideration, a contract of "option" is deemed perfected, and it
would be a breach of that contract to withdraw the offer during the agreed period. The option,
however, is an independent contract by itself, and it is to be distinguished from the projected main
agreement (subject matter of the option) which is obviously yet to be concluded. If, in fact, the
optioner-offeror withdraws the offer before its acceptance (exercise of the option) by the optionee-
offeree, the latter may not sue for specific performance on the proposed contract ("object" of the
option) since it has failed to reach its own stage of perfection. The optioner-offeror, however, renders
himself liable for damages for breach of the option. In these cases, care should be taken of the real
nature of the consideration given, for if, in fact, it has been intended to be part of the consideration
for the main contract with a right of withdrawal on the part of the optionee, the main contract could
be deemed perfected; a similar instance would be an "earnest money" in a contract of sale that can
evidence its perfection (Art. 1482, Civil Code).

In the law on sales, the so-called "right of first refusal" is an innovative juridical relation. Needless to
point out, it cannot be deemed a perfected contract of sale under Article 1458 of the Civil Code.
Neither can the right of first refusal, understood in its normal concept, per se be brought within the
purview of an option under the second paragraph of Article 1479, aforequoted, or possibly of an offer
under Article 1319  of the same Code. An option or an offer would require, among other things,  a
9 10

clear certainty on both the object and the cause or consideration of the envisioned contract. In a right
of first refusal, while the object might be made determinate, the exercise of the right, however, would
be dependent not only on the grantor's eventual intention to enter into a binding juridical relation with
another but also on terms, including the price, that obviously are yet to be later firmed up. Prior
thereto, it can at best be so described as merely belonging to a class of preparatory juridical
relations governed not by contracts (since the essential elements to establish the vinculum
juris would still be indefinite and inconclusive) but by, among other laws of general application, the
pertinent scattered provisions of the Civil Code on human conduct.

Even on the premise that such right of first refusal has been decreed under a final judgment, like
here, its breach cannot justify correspondingly an issuance of a writ of execution under a judgment
that merely recognizes its existence, nor would it sanction an action for specific performance without
thereby negating the indispensable element of consensuality in the perfection of contracts.  It is not
11

to say, however, that the right of first refusal would be inconsequential for, such as already intimated
above, an unjustified disregard thereof, given, for instance, the circumstances expressed in Article
19  of the Civil Code, can warrant a recovery for damages.
12

The final judgment in Civil Case No. 87-41058, it must be stressed, has merely accorded a "right of
first refusal" in favor of petitioners. The consequence of such a declaration entails no more than what
has heretofore been said. In fine, if, as it is here so conveyed to us, petitioners are aggrieved by the
failure of private respondents to honor the right of first refusal, the remedy is not a writ of execution
on the judgment, since there is none to execute, but an action for damages in a proper forum for the
purpose.

Furthermore, whether private respondent Buen Realty Development Corporation, the alleged
purchaser of the property, has acted in good faith or bad faith and whether or not it should, in any
case, be considered bound to respect the registration of the lis pendens in Civil Case No. 87-41058
are matters that must be independently addressed in appropriate proceedings. Buen Realty, not
having been impleaded in Civil Case No. 87-41058, cannot be held subject to the writ of execution
issued by respondent Judge, let alone ousted from the ownership and possession of the property,
without first being duly afforded its day in court.

We are also unable to agree with petitioners that the Court of Appeals has erred in holding that the
writ of execution varies the terms of the judgment in Civil Case No. 87-41058, later affirmed in CA-
G.R. CV-21123. The Court of Appeals, in this regard, has observed:

Finally, the questioned writ of execution is in variance with the decision of the trial
court as modified by this Court. As already stated, there was nothing in said
decision   that decreed the execution of a deed of sale between the Cu Unjiengs and
13

respondent lessees, or the fixing of the price of the sale, or the cancellation of title in
the name of petitioner (Limpin vs. IAC, 147 SCRA 516; Pamantasan ng Lungsod ng
Maynila vs. IAC, 143 SCRA 311; De Guzman vs. CA, 137 SCRA 730; Pastor vs. CA,
122 SCRA 885).
It is likewise quite obvious to us that the decision in Civil Case No. 87-41058 could not have decreed
at the time the execution of any deed of sale between the Cu Unjiengs and petitioners.

WHEREFORE, we UPHOLD the Court of Appeals in ultimately setting aside the questioned Orders,
dated 30 August 1991 and 27 September 1991, of the court a quo. Costs against petitioners.

SO ORDERED.
G.R. No. L-36840 May 22, 1973

PEOPLE'S CAR INC., plaintiff-appellant,

vs.
COMMANDO SECURITY SERVICE AGENCY, defendant-appellee.

TEEHANKEE, J.:

In this appeal from the adverse judgment of the Davao court of first instance limiting plaintiff-
appellant's recovery under its complaint to the sum of P1,000.00 instead of the actual damages of
P8,489.10 claimed and suffered by it as a direct result of the wrongful acts of defendant security
agency's guard assigned at plaintiff's premises in pursuance of their "Guard Service Contract", the
Court finds merit in the appeal and accordingly reverses the trial court's judgment.

The appeal was certified to this Court by a special division of the Court of Appeals on a four-to-one
vote as per its resolution of April 14, 1973 that "Since the case was submitted to the court a quo for
decision on the strength of the stipulation of facts, only questions of law can be involved in the
present appeal."

The Court has accepted such certification and docketed this appeal on the strength of its own finding
from the records that plaintiff's notice of appeal was expressly to this Court (not to the appellate
court)" on pure questions of law"  and its record on appeal accordingly prayed that" the
1

corresponding records be certified and forwarded to the Honorable Supreme Court."  The trial court
2

so approved the same  on July 3, 1971 instead of having required the filing of a petition for review of
3

the judgment sought to be appealed from directly with this Court, in accordance with the provisions
of Republic Act 5440. By some unexplained and hitherto undiscovered error of the clerk of court,
furthermore, the record on appeal was erroneously forwarded to the appellate court rather than to
this Court.

The parties submitted the case for judgment on a stipulation of facts. There is thus no dispute as to
the factual bases of plaintiff's complaint for recovery of actual damages against defendant, to wit,
that under the subsisting "Guard Service Contract" between the parties, defendant-appellee as a
duly licensed security service agency undertook in consideration of the payments made by plaintiff to
safeguard and protect the business premises of (plaintiff) from theft, pilferage, robbery, vandalism
and all other unlawful acts of any person or person prejudicial to the interest of (plaintiff)."
4

On April 5, 1970 at around 1:00 A.M., however, defendant's security guard on duty at plaintiff's
premises, "without any authority, consent, approval, knowledge or orders of the plaintiff and/or
defendant brought out of the compound of the plaintiff a car belonging to its customer, and drove
said car for a place or places unknown, abandoning his post as such security guard on duty inside
the plaintiff's compound, and while so driving said car in one of the City streets lost control of said
car, causing the same to fall into a ditch along J.P. Laurel St., Davao City by reason of which the
plaintiff's complaint for qualified theft against said driver, was blottered in the office of the Davao City
Police Department." 5

As a result of these wrongful acts of defendant's security guard, the car of plaintiff's customer,
Joseph Luy, which had been left with plaintiff for servicing and maintenance, "suffered extensive
damage in the total amount of P7,079."  besides the car rental value "chargeable to defendant" in the
6

sum of P1,410.00 for a car that plaintiff had to rent and make available to its said customer to enable
him to pursue his business and occupation for the period of forty-seven (47) days (from April 25 to
June 10, 1970) that it took plaintiff to repair the damaged car,  or total actual damages incurred by
7

plaintiff in the sum of P8,489.10.

Plaintiff claimed that defendant was liable for the entire amount under paragraph 5 of their contract
whereunder defendant assumed "sole responsibility for the acts done during their watch hours" by its
guards, whereas defendant contended, without questioning the amount of the actual damages
incurred by plaintiff, that its liability "shall not exceed one thousand (P1,000.00) pesos per guard
post" under paragraph 4 of their contract.

The parties thus likewise stipulated on this sole issue submitted by them for adjudication, as follows:

Interpretation of the contract, as to the extent of the liability of the defendant to the
plaintiff by reason of the acts of the employees of the defendant is the only issue to
be resolved.

The defendant relies on Par. 4 of the contract to support its contention while the
plaintiff relies on Par. 5 of the same contract in support of its claims against the
defendant. For ready reference they are quoted hereunder:

'Par. 4. — Party of the Second Part (defendant) through the

negligence of its guards, after an investigation has been conducted
by the Party of the First Part (plaintiff) wherein the Party of the
Second Part has been duly represented shall assume full
responsibilities for any loss or damages that may occur to any
property of the Party of the First Part for which it is accountable,
during the watch hours of the Party of the Second Part, provided the
same is reported to the Party of the Second Part within twenty-four
(24) hours of the occurrence, except where such loss or damage is
due to force majeure, provided however that after the proper
investigation to be made thereof that the guard on post is found
negligent and that the amount of the loss shall not exceed ONE
THOUSAND (P1,000.00) PESOS per guard post.'

'Par. 5 — The party of the Second Part assumes the responsibility for
the proper performance by the guards employed, of their duties and
(shall) be solely responsible for the acts done during their watch
hours, the Party of the First Part being specifically released from any
and all liabilities to the former's employee or to the third parties
arising from the acts or omissions done by the guard during their tour
of
duty.' ...
8

The trial court, misreading the above-quoted contractual provisions, held that "the liability of the
defendant in favor of the plaintiff falls under paragraph 4 of the Guard Service Contract" and
rendered judgment "finding the defendant liable to the plaintiff in the amount of P1,000.00 with
costs."

Hence, this appeal, which, as already indicated, is meritorious and must be granted.

Paragraph 4 of the contract, which limits defendant's liability for the amount of loss or damage to any
property of plaintiff to "P1,000.00 per guard post," is by its own terms applicable only for loss or
damage 'through the negligence of its guards ... during the watch hours" provided that the same is
duly reported by plaintiff within 24 hours of the occurrence and the guard's negligence is verified
after proper investigation with the attendance of both contracting parties. Said paragraph is
manifestly inapplicable to the stipulated facts of record, which involve neither property of plaintiff that
has been lost or damaged at its premises nor mere negligence of defendant's security guard on
duty.

Here, instead of defendant, through its assigned security guards, complying with its contractual
undertaking 'to safeguard and protect the business premises of (plaintiff) from theft, robbery,
vandalism and all other unlawful acts of any person or persons," defendant's own guard on duty
unlawfully and wrongfully drove out of plaintiffs premises a customer's car, lost control of it on the
highway causing it to fall into a ditch, thereby directly causing plaintiff to incur actual damages in the
total amount of P8,489.10.

Defendant is therefore undoubtedly liable to indemnify plaintiff for the entire damages thus incurred,
since under paragraph 5 of their contract it "assumed the responsibility for the proper performance
by the guards employed of their duties and (contracted to) be solely responsible for the acts done
during their watch hours" and "specifically released (plaintiff) from any and all liabilities ... to the third
parties arising from the acts or omissions done by the guards during their tour of duty." As plaintiff
had duly discharged its liability to the third party, its customer, Joseph Luy, for the undisputed
damages of P8,489.10 caused said customer, due to the wanton and unlawful act of defendant's
guard, defendant in turn was clearly liable under the terms of paragraph 5 of their contract to
indemnify plaintiff in the same amount.

The trial court's approach that "had plaintiff understood the liability of the defendant to fall under
paragraph 5, it should have told Joseph Luy, owner of the car, that under the Guard Service
Contract, it was not liable for the damage but the defendant and had Luy insisted on the liability of
the plaintiff, the latter should have challenged him to bring the matter to court. If Luy accepted the
challenge and instituted an action against the plaintiff, it should have filed a third-party complaint
against the Commando Security Service Agency. But if Luy instituted the action against the plaintiff
and the defendant, the plaintiff should have filed a crossclaim against the latter,"  was unduly
9

technical and unrealistic and untenable.

Plaintiff was in law liable to its customer for the damages caused the customer's car, which had been
entrusted into its custody. Plaintiff therefore was in law justified in making good such damages and
relying in turn on defendant to honor its contract and indemnify it for such undisputed damages,
which had been caused directly by the unlawful and wrongful acts of defendant's security guard in
breach of their contract. As ordained in Article 1159, Civil Code, "obligations arising from contracts
have the force of law between the contracting parties and should be complied with in good faith."

Plaintiff in law could not tell its customer, as per the trial court's view, that "under the Guard Service
Contract it was not liable for the damage but the defendant" — since the customer could not hold
defendant to account for the damages as he had no privity of contract with defendant. Such an
approach of telling the adverse party to go to court, notwithstanding his plainly valid claim, aside
from its ethical deficiency among others, could hardly create any goodwill for plaintiff's business, in
the same way that defendant's baseless attempt to evade fully discharging its contractual liability to
plaintiff cannot be expected to have brought it more business. Worse, the administration of justice is
prejudiced, since the court dockets are unduly burdened with unnecessary litigation.

ACCORDINGLY, the judgment appealed from is hereby reversed and judgment is hereby rendered
sentencing defendant-appellee to pay plaintiff-appellant the sum of P8,489.10 as and by way of
reimbursement of the stipulated actual damages and expenses, as well as the costs of suit in both
instances. It is so ordered.

ARTURO PELAYO, Plaintiff-Appellant, v. MARCELO LAURON, ET

AL., Defendants-Appellees.

J. H. Junquera, for Appellant.

Filemon Sotto, for Appellees.

SYLLABUS

1. RECIPROCAL OBLIGATION OF HUSBAND AND WIFE; SUPPORT. — Among the

reciprocal obligations existing between a husband and wife is that of support, which
obligation is established by law.

2. ID.; SUPPORT OF STRANGERS. — The law does not compel any person to support a
stranger unless such person bound himself to do so by an express contract.

3. ID.; SUPPORT OF WIFE. — Where a husband whom the law compels to support his
wife in living, the father and mother-in-law of the latter are under no liability to provide
for her.

DECISION

TORRES, J. :

On the 23d of November, 1906, Arturo Pelayo, a physician-residing in Cebu, filed a

complaint against Marcelo Lauron and Juana Abella setting forth that on or about the
13th of October of said year, at night, the plaintiff was called to the house of the
defendants, situated in San Nicolas, and that upon arrival he was requested by them to
render medical assistance to their daughter-in-law who was about to give birth to a
child; that therefore, and after consultation with the attending physician, Dr. Escano, it
was found necessary, on account of the difficult birth, to remove the fetus by means of
forceps which operation was performed by the plaintiff, who also had to remove the
after birth, in which service he was occupied until the following morning, and that
afterwards, on the same day, he visited the patient several times; that the just and
equitable value of the services rendered by him was P500, which the defendants refuse
to pay without alleging any good reason there for; that for said reason he prayed that
judgment be entered in his favor as against the defendants, or any of them, for the
sum of P500 and costs, together with any other relief that might be deemed proper.

In answer to the complaint counsel for the defendants denied all of the allegations
therein contained and alleged as a special defense, that their daughter-in-law had died
in consequence of the said childbirth, and that when she was alive she lived with her
husband independently and in a separate house without any relation whatever with
them, and that, if on the day when she gave birth she was in the house of the
defendants, her stay there was accidental and due to fortuitous circumstances;
therefore, he prayed that the defendants be absolved of the complaint with costs
against the plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the
demurrer, directing the defendants, on the 23d of January, 1907, to amend their
answer. In compliance with this order the defendants presented, on the same date,
their amended answer, denying each and every one of the allegations contained in the
complaint, and requesting that the same be dismissed with costs.

As a result of the evidence adduced by both parties, judgment was entered by the court
below on the 5th of April, 1907, whereby the defendants were absolved from the
former complaint, on account of the lack of sufficient evidence to establish a right of
action against the defendants, with costs against the plaintiff, who excepted to the said
judgment and in addition moved for a new trial on the ground that the judgment was
contrary to law; the motion was overruled and the plaintiff excepted and in due course
presented the corresponding bill of exceptions. The motion of the defendants requesting
that the declaration contained in the judgment that the defendants had demanded he
professional services of the plaintiff he eliminated therefrom, for the reason that,
according to the evidence, no such request had been made, was also denied, and to the
decision the defendants excepted.

Assuming that it is a real fact acknowledged by the defendants, that the plaintiff, by
virtue of having been sent for by the former, attended as physician and rendered
professional services to a daughter-in-law of the said defendants during a difficult and
laborious childbirth, in order to decide the claim of the said physician regarding the
recovery of his fees, it becomes necessary to decide who is bound to pay the bill,
whether the father and mother-in-law of the patient, or the husband of the latter.

According to article 1089 of the Civil Code, obligations are created by law, by contracts,
by quasi-contracts, and by illicit acts and omissions or by those in which any kind of
fault or negligence occurs.

Obligations arising from law are not presumed. Those expressly determined in the code
or in special laws, etc., are the only demandable ones. Obligations arising from
contracts have legal force between the contracting parties and must be fulfilled in
accordance with their stipulations. (Arts. 1090 and 1091.)

The rendering of medical assistance in case of illness is comprised among the mutual
obligations to which spouses are bound by way of mutual support. (Arts. 142 and
143.) .

If every obligation consists in giving, doing, or not doing something (art. 1088), and
spouses are mutually bound to support each other, there can be no question but that,
when either of them by reason of illness should be in need of medical assistance, the
other is under the unavoidable obligation to furnish the necessary services of a
physician in order that health may be restored, and he or she may be freed from the
sickness by which life is jeopardized; the party bound to furnish such support is
therefore liable for all expenses, including the fees of the medical expert for his
professional services. This liability originates from the above-cited mutual obligation
which the law has expressly established between the married couple.

In the face of the above legal precepts it is unquestionable that the person bound to
pay the fees due to the plaintiff for the professional services that he rendered to the
daughter-in-law of the defendants during her childbirth is the husband of the patient
and not her father and mother- in-law, the defendants herein. The fact that it was not
the husband who called the plaintiff and requested his assistance for his wife is no bar
to the fulfillment of the said obligation, as the defendants, in view of the imminent
danger to which the life of the patient was at that moment exposed, considered that
medical assistance was urgently needed, and the obligation of the husband to furnish
his wife with the indispensable services of a physician at such critical moments is
specially established by the law, as has been seen, and compliance therewith is
unavoidable; therefore, the plaintiff, who believes that he is entitled to recover his fees,
must direct his action against the husband who is under obligation to furnish medical
assistance to his lawful wife in such an emergency.

From the foregoing it, may readily be understood that it was improper to have brought
an action against the defendants simply because they were the parties who called the
plaintiff and requested him to assist the patient during her difficult confinement, and
also, possibly, because they were her father and mother-in-law and the sickness
occurred in their house. The defendants were not, nor are they now, under any
obligation by virtue of any legal provision, to pay the fees claimed, nor in consequence
of any contract entered into between them and the plaintiff from which such obligation
might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court
of Spain, while recognizing the validity and efficiency of a contract to furnish support
wherein a person bound himself to support another who was not his relative,
established the rule that the law does impose the obligation to pay for the support of a
stranger, but as the liability arose out of a contract, the stipulations of the agreement
must be upheld. (Decision of May 11 1897.)

Within the meaning of the law, the father and mother law are strangers with respect to
the obligation that devolves upon the husband to provide support, among which is the
furnishing of medical assistance to his wife at the time of her confinement; and, on the
other hand, it does not appear that a contract existed between the defendants and the
plaintiff physician, for which reason it is obvious that the former can not be compelled
to pay fees which they are under no liability to pay because it does not appear that they
consented to bind themselves.

The foregoing suffices to demonstrate that the first and second errors assigned to the
judgment below are unfounded, because, if the plaintiff has no right of action against
the defendants, it is needless to declare whether or not the use of forceps is a surgical
operation.

Therefore, in view of the considerations hereinbefore set forth, it is our opinion that the
judgment appealed from should be affirmed with the costs against the Appellant. So
ordered.
G.R. No. 182356               December 4, 2013

DRA, LEILA A DELA LLANO, Petitioner,

vs.
REBECCA BIONG, doing business under the name and style of Pongkay
Trading, Respondent.

DECISION

BRION, J.:

Very case essentially turns on two basic questions: questions of fact and questions of law.
Questions of fact are the parties and their counsel to respond to, based on what supporting facts the
legal questions require; the court can only draw conclusion from the facts or evidence adduced.
When the facts are lacking because of the deficiency of presented evidence, then the court can only
draw one conclusion: that the cause must fail for lack of evidentiary support.

The present case is one such case as Dra. Leila A dela Llana’s(petitioner) petition for review on
certorari  challenging the February 11, 2008 Decision  and the March 31, 2008 resolution  of the
1 2 3

Court of Appeals (CA) in CA-G.R. CV No. 89163.

The Factual Antecedents

On March 30, 2000, at around 11:00 p.m., Juan dela Llana was driving a 1997 Toyota Corolla car
along North Avenue, Quezon City. 4

His sister, Dra. dela Llana, was seated at the front passenger seat while a certain Calimlim was at
the backseat. 5

Juan stopped the car across the Veterans Memorial Hospital when the signal light turned red. A few
seconds after the car halted, a dump truck containing gravel and sand suddenly rammed the car’s
rear end, violently pushing the car forward. Due to the impact, the car’s rear end collapsed and its
rear windshield was shattered. Glass splinters flew, puncturing Dra. dela Llana. Apart from these
minor wounds, Dra. dela Llana did not appear to have suffered from any other visible physical
injuries.
6

The traffic investigation report dated March 30, 2000 identified the truck driver as Joel Primero. It
stated that Joel was recklessly imprudent in driving the truck.7

Joel later revealed that his employer was respondent Rebecca Biong, doing business under the
name and style of "Pongkay Trading" and was engaged in a gravel and sand business. 8

In the first week of May 2000, Dra. dela Llana began to feel mild to moderate pain on the left side of
her neck and shoulder. The pain became more intense as days passed by. Her injury became more
severe. Her health deteriorated to the extent that she could no longer move her left arm. On June 9,
2000, she consulted with Dr. Rosalinda Milla, a rehabilitation medicine specialist, to examine her
condition. Dr. Milla told her that she suffered from a whiplash injury, an injury caused by the
compression of the nerve running to her left arm and hand. Dr. Milla required her to undergo
physical therapy to alleviate her condition. Dra. dela Llana’s condition did not improve despite three
months of extensive physical therapy. 9
She then consulted other doctors, namely, Drs. Willie Lopez, Leonor Cabral-Lim and Eric Flores, in
search for a cure. Dr. Flores, a neuro-surgeon, finally suggested that she undergo a cervical spine
surgery to release the compression of her nerve. On October 19, 2000, Dr. Flores operated on her
spine and neck, between the C5 and the C6 vertebrae. 10

The operation released the impingement of the nerve, but incapacitated Dra. dela Llana from the
practice of her profession since June 2000 despite the surgery. 11

Dra. dela Llana, on October 16, 2000, demanded from Rebecca compensation for her injuries, but
Rebecca refused to pay. 12

Thus, on May 8, 2001, Dra. dela Llana sued Rebecca for damages before the Regional Trial Court
of Quezon City (RTC). She alleged that she lost the mobility of her arm as a result of the vehicular
accident and claimed ₱150,000.00 for her medical expenses (as of the filing of the complaint) and
an average monthly income of ₱30,000.00 since June 2000. She further prayed for actual, moral,
and exemplary damages as well as attorney’s fees. 13

In defense, Rebecca maintained that Dra. dela Llana had no cause of action against her as no
reasonable relation existed between the vehicular accident and Dra. dela Llana’s injury. She pointed
out that Dra. dela Llana’s illness became manifest one month and one week from the date of the
vehicular accident. As a counterclaim, she demanded the payment of attorney’s fees and costs of
the suit.
14

At the trial, Dra. dela Llana presented herself as an ordinary witness  and Joel as a hostile witness.
15 16

Dra. dela Llana reiterated that she lost the mobility of her arm because of the vehicular accident. To
prove her claim, she identified and authenticated a medical certificate dated November 20, 2000
issued by Dr. Milla. The medical certificate stated that Dra. dela Llana suffered from a whiplash
injury. It also chronicled her clinical history and physical examinations. 17

Meanwhile, Joel testified that his truck hit the car because the truck’s brakes got stuck.
18

In defense, Rebecca testified that Dra. dela Llana was physically fit and strong when they met
several days after the vehicular accident. She also asserted that she observed the diligence of a
good father of a family in the selection and supervision of Joel. She pointed out that she required
Joel to submit a certification of good moral character as well as barangay, police, and NBI
clearances prior to his employment. She also stressed that she only hired Primero after he
successfully passed the driving skills test conducted by Alberto Marcelo, a licensed driver-
mechanic. 19

Alberto also took the witness stand. He testified that he checked the truck in the morning of March
30, 2000. He affirmed that the truck was in good condition prior to the vehicular accident. He opined
that the cause of the vehicular accident was a damaged compressor. According to him, the absence
of air inside the tank damaged the compressor. 20

RTC Ruling

The RTC ruled in favor of Dra. dela Llana and held that the proximate cause of Dra. dela Llana’s
whiplash injury to be Joel’s reckless driving.
21
It found that a whiplash injury is an injury caused by the sudden jerking of the spine in the neck area.
It pointed out that the massive damage the car suffered only meant that the truck was over-
speeding. It maintained that Joel should have driven at a slower pace because road visibility
diminishes at night. He should have blown his horn and warned the car that his brake was stuck and
could have prevented the collision by swerving the truck off the road. It also concluded that Joel was
probably sleeping when the collision occurred as Joel had been driving for fifteen hours on that
fateful day. The RTC further declared that Joel’s negligence gave rise to the presumption that
Rebecca did not exercise the diligence of a good father of a family in Joel's selection and
supervision of Joel. Rebecca was vicariously liable because she was the employer and she
personally chose him to drive the truck. On the day of the collision, she ordered him to deliver gravel
and sand to Muñoz Market, Quezon City. The Court concluded that the three elements necessary to
establish Rebecca’s liability were present: (1) that the employee was chosen by the employer,
personally or through another; (2) that the services were to be rendered in accordance with orders
which the employer had the authority to give at all times; and (3) that the illicit act of the employee
was on the occasion or by reason of the functions entrusted to him. The RTC thus awarded Dra.
dela Llana the amounts of ₱570,000.00 as actual damages, ₱250,000.00 as moral damages, and
the cost of the suit. 22

CA Ruling

In a decision dated February 11, 2008, the CA reversed the RTC ruling. It held that Dra. dela Llana
failed to establish a reasonable connection between the vehicular accident and her whiplash injury
by preponderance of evidence. Citing Nutrimix Feeds Corp. v. Court of Appeals,  it declared that
23

courts will not hesitate to rule in favor of the other party if there is no evidence or the evidence is too
slight to warrant an inference establishing the fact in issue. It noted that the interval between the
date of the collision and the date when Dra. dela Llana began to suffer the symptoms of her illness
was lengthy. It concluded that this interval raised doubts on whether Joel’s reckless driving and the
resulting collision in fact caused Dra. dela Llana’s injury. It also declared that courts cannot take
judicial notice that vehicular accidents cause whiplash injuries. It observed that Dra. dela Llana did
not immediately visit a hospital to check if she sustained internal injuries after the accident.
Moreover, her failure to present expert witnesses was fatal to her claim. It also gave no weight to the
medical certificate. The medical certificate did not explain how and why the vehicular accident
caused the injury.24

The Petition

Dra. dela Llana points out in her petition before this Court that Nutrimix is inapplicable in the present
case. She stresses that Nutrimix involved the application of Article 1561 and 1566 of the Civil Code,
provisions governing hidden defects. Furthermore, there was absolutely no evidence in Nutrimix that
showed that poisonous animal feeds were sold to the respondents in that case. As opposed to the
respondents in Nutrimix, Dra. dela Llana asserts that she has established by preponderance of
evidence that Joel’s egligent act was the proximate cause of her whiplash injury. First, pictures of
her damaged car show that the collision was strong. She posits that it can be reasonably inferred
from these pictures that the massive impact resulted in her whiplash injury. Second, Dr. Milla
categorically stated in the medical certificate that Dra. dela Llana suffered from whiplash
injury. Third, her testimony that the vehicular accident caused the injury is credible because she was
a surgeon.

Dra. dela Llana further asserts that the medical certificate has probative value. Citing several cases,
she posits that an uncorroborated medical certificate is credible if uncontroverted. 25
She points out that expert opinion is unnecessary if the opinion merely relates to matters of common
knowledge. She maintains that a judge is qualified as an expert to determine the causation between
Joel’s reckless driving and her whiplash injury. Trial judges are aware of the fact that whiplash
injuries are common in vehicular collisions.

The Respondent’s Position

In her Comment,  Rebecca points out that Dra. dela Llana raises a factual issue which is beyond the
26

scope of a petition for review on certiorari under Rule 45 of the Rules of Court. She maintains that
the CA’s findings of fact are final and conclusive. Moreover, she stresses that Dra. dela Llana’s
arguments are not substantial to merit this Court’s consideration.

The Issue

The sole issue for our consideration in this case is whether Joel’s reckless driving is the proximate
cause of Dra. dela Llana’s whiplash injury.

Our Ruling We find the petition unmeritorious.

The Supreme Court may review questions of fact in a petition for review on certiorari when the
findings of fact by the lower courts are conflicting

The issue before us involves a question of fact and this Court is not a trier of facts. As a general rule,
the CA’s findings of fact are final and conclusive and this Court will not review them on appeal. It is
not the function of this Court to examine, review or evaluate the evidence in a petition for review
on certiorari under Rule 45 of the Rules of Court. We can only review the presented evidence, by
way of exception, when the conflict exists in findings of the RTC and the CA. 27

We see this exceptional situation here and thus accordingly examine the relevant evidence
presented before the trial court.

Dra. dela Llana failed to establish her case by preponderance of evidence

Article 2176 of the Civil Code provides that "[w]hoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is a quasi-delict."
Under this provision, the elements necessary to establish a quasi-delict case are:

(1) damages to the plaintiff;

(2) negligence, by act or omission, of the defendant or by some person for whose acts the
defendant must respond, was guilty; and

(3) the connection of cause and effect between such negligence and the damages. 28

These elements show that the source of obligation in a quasi-delict case is the breach or omission of
mutual duties that civilized society imposes upon its members, or which arise from non-contractual
relations of certain members of society to others. 29

Based on these requisites, Dra. dela Llana must first establish by preponderance of evidence the
three elements of quasi-delict before we determine Rebecca’s liability as Joel’s employer.
She should show the chain of causation between Joel’s reckless driving and her whiplash injury.

Only after she has laid this foundation can the presumption - that Rebecca did not exercise the
diligence of a good father of a family in the selection and supervision of Joel - arise.
30

Once negligence, the damages and the proximate causation are established, this Court can then
proceed with the application and the interpretation of the fifth paragraph of Article 2180 of the Civil
Code. 31

Under Article 2176 of the Civil Code, in relation with the fifth paragraph of Article 2180, "an action
predicated on an employee’s act or omission may be instituted against the employer who is held
liable for the negligent act or omission committed by his employee." 32

The rationale for these graduated levels of analyses is that it is essentially the wrongful or negligent
act or omission itself which creates the vinculum juris in extra-contractual obligations. 33

In civil cases, a party who alleges a fact has the burden of proving it.

He who alleges has the burden of proving his allegation by preponderance of evidence or greater
weight of credible evidence. 34

The reason for this rule is that bare allegations, unsubstantiated by evidence, are not equivalent to
proof.

In short, mere allegations are not evidence. 35

In the present case, the burden of proving the proximate causation between Joel’s negligence and
Dra. dela Llana’s whiplash injury rests on Dra. dela Llana. She must establish by preponderance of
evidence that Joel’s negligence, in its natural and continuous sequence, unbroken by any efficient
intervening cause, produced her whiplash injury, and without which her whiplash injury would not
have occurred. 36

Notably, Dra. dela Llana anchors her claim mainly on three pieces of evidence:

(1) the pictures of her damaged car,

(2) the medical certificate dated November 20, 2000, and

(3) her testimonial evidence. However, none of these pieces of evidence show the causal
relation between the vehicular accident and the whiplash injury. In other words,

Dra. dela Llana, during trial, did not adduce the factum probans or the evidentiary facts by which the
factum probandum or the ultimate fact can be established, as fully discussed below. 37

A.

The pictures of the damaged

car only demonstrate the
impact of the collision
Dra. dela Llana contends that the pictures of the damaged car show that the massive impact of the
collision caused her whiplash injury. We are not persuaded by this bare claim. Her insistence that
these pictures show the causation grossly belies common logic. These pictures indeed demonstrate
the impact of the collision. However, it is a far-fetched assumption that the whiplash injury can also
be inferred from these pictures.

B.

The medical certificate cannot be

considered because it was
not admitted in evidence

Furthermore, the medical certificate, marked as Exhibit "H" during trial, should not be considered in
resolving this case for the reason that it was not admitted in evidence by the RTC in an order dated
September 23, 2004. 38

Thus, the CA erred in even considering this documentary evidence in its resolution of the case. It is
a basic rule that evidence which has not been admitted cannot be validly considered by the courts in
arriving at their judgments.

However, even if we consider the medical certificate in the disposition of this case, the medical
certificate has no probative value for being hearsay. It is a basic rule that evidence, whether oral or
documentary, is hearsay if its probative value is not based on the personal knowledge of the witness
but on the knowledge of another person who is not on the witness stand. 39

Hearsay evidence, whether objected to or not, cannot be given credence  except in very unusual
40

circumstance that is not found in the present case. Furthermore, admissibility of evidence should not
be equated with weight of evidence. The admissibility of evidence depends on its relevance and
competence, while the weight of evidence pertains to evidence already admitted and its tendency to
convince and persuade. Thus, a particular item of evidence may be admissible, but its evidentiary
weight depends on judicial evaluation within the guidelines provided by the Rules of Court. 41

During trial, Dra. dela Llana testified:

"Q: Did your physician tell you, more or less, what was the reason why you were feeling that pain in
your left arm?

A: Well, I got a certificate from her and in that certificate, she stated that my condition was due to a
compression of the nerve, which supplied my left arm and my left hand.

Court: By the way, what is the name of this physician, Dra.?

Witness: Her name is Dra. Rosalinda Milla. She is a Rehabilitation Medicine Specialist. Atty.
Yusingco: You mentioned that this Dra. Rosalinda Milla made or issued a medical certificate. What
relation does this medical certificate, marked as Exhibit H have to do with that certificate, you said
was made by Dra. Milla?

Witness: This is the medical certificate that Dra. Milla made out for me.

Atty. Yusingco: Your Honor, this has been marked as Exhibit H.

Atty. Yusingco: What other medical services were done on you, Dra. dela Llana, as a result of that
feeling, that pain that you felt in your left arm?

Witness: Well, aside from the medications and physical therapy, a re-evaluation of my condition after
three months indicated that I needed surgery.

Atty. Yusingco: Did you undergo this surgery?

Witness: So, on October 19, I underwent surgery on my neck, on my spine.

Atty. Yusingco: And, what was the result of that surgical operation?

Witness: Well, the operation was to relieve the compression on my nerve, which did not resolve by
the extensive and prolonged physical therapy that I underwent for more than three
months." (emphasis ours)
42

Evidently, it was Dr. Milla who had personal knowledge of the contents of the medical
certificate.  However, she was not presented to testify in court and was not even able to identify and
1âwphi1

affirm the contents of the medical certificate. Furthermore, Rebecca was deprived of the opportunity
to cross-examine Dr. Milla on the accuracy and veracity of her findings. We also point out in this
respect that the medical certificate nonetheless did not explain the chain of causation in fact
between Joel’s reckless driving and Dra. dela Llana’s whiplash injury. It did not categorically state
that the whiplash injury was a result of the vehicular accident. A perusal of the medical certificate
shows that it only attested to her medical condition, i.e., that she was suffering from whiplash injury.
However, the medical certificate failed to substantially relate the vehicular accident to Dra. dela
Llana’s whiplash injury. Rather, the medical certificate only chronicled her medical history and
physical examinations.

C.

Dra. dela Llana’s opinion that

Joel’s negligence caused her
whiplash injury has no probative value

Interestingly, the present case is peculiar in the sense that Dra. dela Llana, as the plaintiff in this
quasi-delict case, was the lone physician-witness during trial. Significantly, she merely testified as an
ordinary witness before the trial court. Dra. dela Llana essentially claimed in her testimony that Joel’s
reckless driving caused her whiplash injury. Despite the fact that Dra. dela Llana is a physician and
even assuming that she is an expert in neurology, we cannot give weight to her opinion that Joel’s
reckless driving caused her whiplash injury without violating the rules on evidence. Under the Rules
of Court, there is a substantial difference between an ordinary witness and an expert witness. The
opinion of an ordinary witness may be received in evidence regarding:

(a) the identity of a person about whom he has adequate knowledge;

(b) a handwriting with which he has sufficient familiarity; and

(c) the mental sanity of a person with whom he is sufficiently acquainted.  Furthermore, the
1âwphi1

witness may also testify on his impressions of the emotion, behavior, condition or
appearance of a person. 43
On the other hand, the opinion of an expert witness may be received in evidence on a matter
requiring special knowledge, skill, experience or training which he shown to possess. 44

However, courts do not immediately accord probative value to an admitted expert testimony, much
less to an unobjected ordinary testimony respecting special knowledge. The reason is that the
probative value of an expert testimony does not lie in a simple exposition of the expert's opinion.
Rather, its weight lies in the assistance that the expert witness may afford the courts by
demonstrating the facts which serve as a basis for his opinion and the reasons on which the logic of
his conclusions is founded. 45

In the present case, Dra. dela Llana’s medical opinion cannot be given probative value for the
reason that she was not presented as an expert witness. As an ordinary witness, she was not
competent to testify on the nature, and the cause and effects of whiplash injury. Furthermore, we
emphasize that Dra. dela Llana, during trial, nonetheless did not provide a medical explanation on
the nature as well as the cause and effects of whiplash injury in her testimony.

The Supreme Court cannot take

judicial notice that vehicular
accidents cause whiplash injuries.

Indeed, a perusal of the pieces of evidence presented by the parties before the trial court shows
that Dra. Dela Llana did not present any testimonial or documentary evidence that directly
shows the causal relation between the vehicular accident and Dra. Dela Llana’s injury. Her
claim that Joel’s negligence causes her whiplash injury was not established because of the
deficiency of the presented evidence during trial. We point out in this respect that courts cannot take
judicial notice that vehicular ccidents cause whiplash injuries. This proportion is not public
knowledge, or is capable of unquestionable demonstration, or ought to be known to judges because
of their judicial functions.  We have no expertise in the field of medicine. Justices and judges are
46

only tasked to apply and interpret the law on the basis of the parties’ pieces of evidence and their
corresponding legal arguments.

In sum, Dra. dela Llana miserably failed to establish her cause by preponderance of evidence. While
we commiserate with her, our solemn duty to independently and impartially assess the merits of the
case binds us to rule against Dra. dela Llana’s favor. Her claim, unsupported by prepondernace of
evidence, is merely a bare assertion and has no leg to stand on.

WHEREFORE, presmises considered, the assailed Decision dated February 11, 2008 and
Resolution dated March 31, 2008 of the Court of Appeals are hereby AFFIRMED and the petition is
hereby DENIED for lack of merit.
SO ORDERED.
G.R. No. L-16749             January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and
Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria
Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case
of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx     xxx     xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency
the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted..

xxx     xxx     xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my
death and which may have come to me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project
of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the
residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar
as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been
declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to
Helen Christensen, one of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law that should govern the
estate of the deceased Christensen should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved, that the forum is the Philippines and
even if the case were decided in California, Section 946 of the California Civil Code, which requires
that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a testator
has the right to dispose of his property in the way he desires, because the right of absolute dominion
over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.

The most important assignments of error are as follows:

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL

LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS
HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State
of California at the time of his death. But there is also no question that at the time of his death he
was domiciled in the Philippines, as witness the following facts admitted by the executor himself in
appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1,
1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own country,
and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts. 
1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in
the Philippines during World War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6",
CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded
by the fact that he was born in New York, migrated to California and resided there for nine years,
and since he came to the Philippines in 1913 he returned to California very rarely and only for short
visits (perhaps to relatives), and considering that he appears never to have owned or acquired a
home or properties in that state, which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
 Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote something
more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines,
for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to
have considered himself as a citizen of California by the fact that when he executed his will in 1951
he declared that he was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion is in accordance with the
following principle expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning.
Thus one may be domiciled in a place where he has never been. And he may reside in a
place where he has no domicile. The man with two homes, between which he divides his
time, certainly resides in each one, while living in it. But if he went on business which would
require his presence for several weeks or months, he might properly be said to have
sufficient connection with the place to be called a resident. It is clear, however, that, if he
treated his settlement as continuing only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one's domicile." Residence, however, is a term
used with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil
Code of the Philippines, which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions in the United
States, each state of the Union having its own private law applicable to its citizens only and in force
only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general American law. So it can refer to no other than
the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property?
The decision of the court below, sustains the contention of the executor-appellee that under the
California Probate Code, a testator may dispose of his property by will in the form and manner he
desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant
invokes the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case
cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen of the State of
California, the internal law thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will, such law being in
force in the State of California of which Christensen was a citizen. Appellant, on the other hand,
insists that Article 946 should be applicable, and in accordance therewith and following the doctrine
of the renvoi, the question of the validity of the testamentary provision in question should be referred
back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:

The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers
a jural matter to a foreign law for decision, is the reference to the purely internal rules of law
of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that
is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have been to Michigan Conflict of Laws.
This would have resulted in the "endless chain of references" which has so often been
criticized be legal writers. The opponents of the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference should be the internal law rather than to
the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but
those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at
the second reference and at that point applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look always to internal law as the rule of
reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the
two states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the
litigation will vary with the choice of the forum. In the case stated above, had the Michigan
court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to
which would hold liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case,
is applied by the forum, but any further reference goes only to the internal law. Thus, a
 person's title to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of
Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property

in Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict
of laws as to intestate succession to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing
for the Massachusetts court to do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the
national law of the deceased, thus applying the Massachusetts statute of distributions. So on
the surface of things the Massachusetts court has open to it alternative course of action: (a)
either to apply the French law is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on the assumption that this is
what a French court would do. If it accepts the so-called renvoi doctrine, it will follow the
latter course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it has
been considered by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has been descriptively
designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated and the operation
of the adoption of the foreign law in toto would in many cases result in returning the main
controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoi is that the court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but also its rules as to conflict of
laws, and then apply the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of the renvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp.
529-531. The pertinent parts of the article are quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
 xxx     xxx     xxx

Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall
be determined by the law of the domicile, or even by the law of the place where the
act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that
one of them is necessarily competent, which agree in attributing the determination of
a question to the same system of law.

xxx     xxx     xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he
must first inquire whether the law of Belgium would distribute personal property upon death
in accordance with the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality — that is the English law — he must
accept this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied
in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of
California are to be enforced jointly, each in its own intended and appropriate sphere, the principle
cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such
of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of
resorting to the law of the domicile in the determination of matters with foreign element involved is in
accord with the general principle of American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing
the manner of distribution of the property, the law of the state where he was domiciled at the
time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical
that, since the domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the
Conflict of Laws rules at the situs property, and the reason for the recognition as in the case
of intestate succession, is the general convenience of the doctrine. The New York court has
said on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in
that international comity which was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed
two sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-
laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where
the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code
of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This contention can not be sustained. As
explained in the various authorities cited above the national law mentioned in Article 16 of our Civil
Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile
can not and should not refer the case back to California; such action would leave the issue incapable
of determination because the case will then be like a football, tossed back and forth between the two
states, between the country of which the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of laws rule of the state of the
decedent, if the question has to be decided, especially as the application of the internal law of
California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code
of the Philippines, makes natural children legally acknowledged forced heirs of the parent
recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the
case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen
of a state in the United States but with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a citizen, a law similar to or identical with
Art. 946 of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower
court with instructions that the partition be made as the Philippine law on succession provides.
Judgment reversed, with costs against appellees.