Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 98695 January 27, 1993
JUAN J. SYQUIA, CORAZON C. SYQUIA, CARLOTA C. SYQUIA, CARLOS C. SYQUIA and
ANTHONY C. SYQUIA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, and THE MANILA MEMORIAL PARK CEMETERY,
INC., respondents.
Pacis & Reyes Law Offices for petitioners.
Augusto S. San Pedro & Ari-Ben C. Sebastian for private respondents.

CAMPOS, JR., J.:
Herein petitioners, Juan J. Syquia and Corazon C. Syquia, Carlota C. Syquia, Carlos C. Syquia,
and Anthony Syquia, were the parents and siblings, respectively, of the deceased Vicente
Juan Syquia. On March 5, 1979, they filed a complaint
1
in the then Court of First Instance
against herein private respondent, Manila Memorial Park Cemetery, Inc. for recovery of
damages arising from breach of contract and/or quasi-delict. The trial court dismissed the
complaint.
The antecedent facts, as gathered by the respondent Court, are as follows:
On March 5, 1979, Juan, Corazon, Carlota and Anthony all surnamed
Syquia, plaintiff-appellants herein, filed a complaint for damages against
defendant-appellee, Manila Memorial Park Cemetery, Inc.
The complaint alleged among others, that pursuant to a Deed of Sale
(Contract No. 6885) dated August 27, 1969 and Interment Order No.
7106 dated July 21, 1978 executed between plaintiff-appellant Juan J.
Syquia and defendant-appellee, the former, father of deceased Vicente
Juan J. Syquia authorized and instructed defendant-appellee to inter the
remains of deceased in the Manila Memorial Park Cemetery in the
morning of July 25, 1978 conformably and in accordance with defendant-
appellant's (sic) interment procedures; that on September 4, 1978,
preparatory to transferring the said remains to a newly purchased family
plot also at the Manila Memorial Park Cemetery, the concrete vault
encasing the coffin of the deceased was removed from its niche
underground with the assistance of certain employees of defendant-
appellant (sic); that as the concrete vault was being raised to the surface,
plaintiffs-appellants discovered that the concrete vault had a hole
approximately three (3) inches in diameter near the bottom of one of the
walls closing out the width of the vault on one end and that for a certain
length of time (one hour, more or less), water drained out of the hole;
that because of the aforesaid discovery, plaintiffs-appellants became
agitated and upset with concern that the water which had collected
inside the vault might have risen as it in fact did rise, to the level of the
coffin and flooded the same as well as the remains of the deceased with
ill effects thereto; that pursuant to an authority granted by the Municipal
Court of Paraaque, Metro Manila on September 14, 1978, plaintiffs-
appellants with the assistance of licensed morticians and certain
personnel of defendant-appellant (sic) caused the opening of the
concrete vault on September 15, 1978; that upon opening the vault, the
following became apparent to the plaintiffs-appellants: (a) the interior
walls of the concrete vault showed evidence of total flooding; (b) the
coffin was entirely damaged by water, filth and silt causing the wooden
parts to warp and separate and to crack the viewing glass panel located
directly above the head and torso of the deceased; (c) the entire lining of
the coffin, the clothing of the deceased, and the exposed parts of the
deceased's remains were damaged and soiled by the action of the water
and silt and were also coated with filth.
Due to the alleged unlawful and malicious breach by the defendant-
appellee of its obligation to deliver a defect-free concrete vault designed
to protect the remains of the deceased and the coffin against the
elements which resulted in the desecration of deceased's grave and in
the alternative, because of defendant-appellee's gross negligence
conformably to Article 2176 of the New Civil Code in failing to seal the
concrete vault, the complaint prayed that judgment be rendered ordering
defendant-appellee to pay plaintiffs-appellants P30,000.00 for actual
damages, P500,000.00 for moral damages, exemplary damages in the
amount determined by the court, 20% of defendant-appellee's total
liability as attorney's fees, and expenses of litigation and costs of suit.
2

In dismissing the complaint, the trial court held that the contract between the parties did not
guarantee that the cement vault would be waterproof; that there could be no quasi-delict
because the defendant was not guilty of any fault or negligence, and because there was a
pre-existing contractual relation between the Syquias and defendant Manila Memorial Park
Cemetery, Inc.. The trial court also noted that the father himself, Juan Syquia, chose the
gravesite despite knowing that said area had to be constantly sprinkled with water to keep
the grass green and that water would eventually seep through the vault. The trial court also
accepted the explanation given by defendant for boring a hole at the bottom side of the
vault: "The hole had to be bored through the concrete vault because if it has no hole the
vault will (sic) float and the grave would be filled with water and the digging would caved
(sic) in the earth, the earth would caved (sic) in the (sic) fill up the grave."
3

From this judgment, the Syquias appealed. They alleged that the trial court erred in holding
that the contract allowed the flooding of the vault; that there was no desecration; that the
boring of the hole was justifiable; and in not awarding damages.
The Court of Appeals in the Decision
4
dated December 7, 1990 however, affirmed the
judgment of dismissal. Petitioner's motion for reconsideration was denied in a Resolution
dated April 25, 1991.
5

Unsatisfied with the respondent Court's decision, the Syquias filed the instant petition. They
allege herein that the Court of Appeals committed the following errors when it:
1. held that the contract and the Rules and Resolutions of private
respondent allowed the flooding of the vault and the entrance thereto of
filth and silt;
2. held that the act of boring a hole was justifiable and corollarily, when it
held that no act of desecration was committed;
3. overlooked and refused to consider relevant, undisputed facts, such as
those which have been stipulated upon by the parties, testified to by
private respondent's witnesses, and admitted in the answer, which could
have justified a different conclusion;
4. held that there was no tort because of a pre-existing contract and the
absence of fault/negligence; and
5. did not award the P25,000.00 actual damages which was agreed upon
by the parties, moral and exemplary damages, and attorney's fees.
At the bottom of the entire proceedings is the act of boring a hole by private respondent on
the vault of the deceased kin of the bereaved petitioners. The latter allege that such act was
either a breach of private respondent's contractual obligation to provide a sealed vault, or, in
the alternative, a negligent act which constituted a quasi-delict. Nonetheless, petitioners
claim that whatever kind of negligence private respondent has committed, the latter is liable
for desecrating the grave of petitioners' dead.
In the instant case, We are called upon to determine whether the Manila Memorial Park
Cemetery, Inc., breached its contract with petitioners; or, alternatively, whether private
respondent was guilty of a tort.
We understand the feelings of petitioners and empathize with them. Unfortunately,
however, We are more inclined to answer the foregoing questions in the negative. There is
not enough ground, both in fact and in law, to justify a reversal of the decision of the
respondent Court and to uphold the pleas of the petitioners.
With respect to herein petitioners' averment that private respondent has committed culpa
aquiliana, the Court of Appeals found no negligent act on the part of private respondent to
justify an award of damages against it. Although a pre-existing contractual relation between
the parties does not preclude the existence of a culpa aquiliana, We find no reason to
disregard the respondent's Court finding that there was no negligence.
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict . . . . (Emphasis supplied).
In this case, it has been established that the Syquias and the Manila Memorial Park
Cemetery, Inc., entered into a contract entitled "Deed of Sale and Certificate of
Perpetual Care"
6
on August 27, 1969. That agreement governed the relations of
the parties and defined their respective rights and obligations. Hence, had there
been actual negligence on the part of the Manila Memorial Park Cemetery, Inc., it
would be held liable not for a quasi-delict orculpa aquiliana, but
for culpa contractual as provided by Article 1170 of the Civil Code, to wit:
Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor
thereof, are liable for damages.
The Manila Memorial Park Cemetery, Inc. bound itself to provide the concrete box to be send
in the interment. Rule 17 of the Rules and Regulations of private respondent provides that:
Rule 17. Every earth interment shall be made enclosed in a concrete box,
or in an outer wall of stone, brick or concrete, the actual installment of
which shall be made by the employees of the Association.
7

Pursuant to this above-mentioned Rule, a concrete vault was provided on July 27, 1978, the
day before the interment, and was, on the same day, installed by private respondent's
employees in the grave which was dug earlier. After the burial, the vault was covered by a
cement lid.
Petitioners however claim that private respondent breached its contract with them as the
latter held out in the brochure it distributed that the . . . lot may hold single or double
internment (sic) underground in sealed concrete vault."
8
Petitioners claim that the vault
provided by private respondent was not sealed, that is, not waterproof. Consequently, water
seeped through the cement enclosure and damaged everything inside it.
We do not agree. There was no stipulation in the Deed of Sale and Certificate of Perpetual
Care and in the Rules and Regulations of the Manila Memorial Park Cemetery, Inc. that the
vault would be waterproof. Private respondent's witness, Mr. Dexter Heuschkel, explained
that the term "sealed" meant "closed."
9
On the other hand, the word "seal" is defined as . . .
any of various closures or fastenings . . . that cannot be opened without rupture and that
serve as a check against tampering or unauthorized opening."
10
The meaning that has been
given by private respondent to the word conforms with the cited dictionary definition.
Moreover, it is also quite clear that "sealed" cannot be equated with "waterproof". Well
settled is the rule that when the terms of the contract are clear and leave no doubt as to the
intention of the contracting parties, then the literal meaning of the stipulation shall
control.
11
Contracts should be interpreted according to their literal meaning and should not
be interpreted beyond their obvious intendment.
12
As ruled by the respondent Court:
When plaintiff-appellant Juan J. Syquia affixed his signature to the Deed
of Sale (Exhibit "A") and the attached Rules and Regulations (Exhibit "1"),
it can be assumed that he has accepted defendant-appellee's undertaking
to merely provide a concrete vault. He can not now claim that said
concrete vault must in addition, also be waterproofed (sic). It is basic that
the parties are bound by the terms of their contract, which is the law
between them (Rizal Commercial Banking Corporation vs. Court of
Appeals, et al. 178 SCRA 739). Where there is nothing in the contract
which is contrary to law, morals, good customs, public order, or public
policy, the validity of the contract must be sustained (Phil. American
Insurance Co. vs. Judge Pineda, 175 SCRA 416). Consonant with this
ruling, a contracting party cannot incur a liability more than what is
expressly specified in his undertaking. It cannot be extended by
implication, beyond the terms of the contract (Rizal Commercial Banking
Corporation vs. Court of Appeals, supra). And as a rule of evidence,
where the terms of an agreement are reduced to writing, the document
itself, being constituted by the parties as the expositor of their intentions,
is the only instrument of evidence in respect of that agreement which the
law will recognize, so long as its (sic) exists for the purpose of evidence
(Starkie, Ev., pp. 648, 655, Kasheenath vs. Chundy, 5 W.R. 68 cited in
Francisco, Revised Rules of Court in the Phil. p. 153, 1973 Ed.). And if the
terms of the contract are clear and leave no doubt upon the intention of
the contracting parties, the literal meaning of its stipulations shall control
(Santos vs. CA, et al., G. R. No. 83664, Nov. 13, 1989; Prudential Bank &
Trust Co. vs. Community Builders Co., Inc., 165 SCRA 285; Balatero vs.
IAC, 154 SCRA 530).
13

We hold, therefore, that private respondent did not breach the tenor of its obligation to the
Syquias. While this may be so, can private respondent be liable for culpa aquiliana for boring
the hole on the vault? It cannot be denied that the hole made possible the entry of more
water and soil than was natural had there been no hole.
The law defines negligence as the "omission of that diligence which is required by the nature
of the obligation and corresponds with the circumstances of the persons, of the time and of
the place."
14
In the absence of stipulation or legal provision providing the contrary, the
diligence to be observed in the performance of the obligation is that which is expected of a
good father of a family.
The circumstances surrounding the commission of the assailed act boring of the hole
negate the allegation of negligence. The reason for the act was explained by Henry Flores,
Interment Foreman, who said that:
Q It has been established in this particular case that a
certain Vicente Juan Syquia was interred on July 25,
1978 at the Paraaque Cemetery of the Manila
Memorial Park Cemetery, Inc., will you please tell the
Hon. Court what or whether you have participation in
connection with said internment (sic)?
A A day before Juan (sic) Syquia was buried our
personnel dug a grave. After digging the next morning
a vault was taken and placed in the grave and when
the vault was placed on the grave a hole was placed
on the vault so that water could come into the vault
because it was raining heavily then because the vault
has no hole the vault will float and the grave would
be filled with water and the digging would caved (sic)
in and the earth, the earth would (sic) caved in and fill
up the grave.
15
(Emphasis ours)
Except for the foreman's opinion that the concrete vault may float should there be a heavy
rainfall, from the above-mentioned explanation, private respondent has exercised the
diligence of a good father of a family in preventing the accumulation of water inside the vault
which would have resulted in the caving in of earth around the grave filling the same with
earth.
Thus, finding no evidence of negligence on the part of private respondent, We find no reason
to award damages in favor of petitioners.
In the light of the foregoing facts, and construed in the language of the applicable laws and
jurisprudence, We are constrained to AFFIRM in toto the decision of the respondent Court of
Appeals dated December 7, 1990. No costs.
SO ORDERED.
FIRST DIVISION
[G.R. No. 115024. February 7, 1996]
MA. LOURDES VALENZUELA, petitioner, vs. COURT OF APPEALS, RICHARD LI and
ALEXANDER COMMERCIAL, INC., respondents.
[G.R. No. 117944. February 7, 1996]
RICHARD LI, petitioner, vs. COURT OF APPEALS and MA. LOURDES
VALENZUELA, respondents.
D E C I S I O N
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court
stem from an action to recover damages by petitioner Lourdes Valenzuela in the Regional
Trial Court of Quezon City for injuries sustained by her in a vehicular accident in the early
morning of June 24, 1990. The facts found by the trial court are succinctly summarized by the
Court of Appeals below:
This is an action to recover damages based on quasi-delict, for serious physical injuries
sustained in a vehicular accident.
Plaintiffs version of the accident is as follows: At around 2:00 in the morning of June 24,
1990, plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No.
FFU 542 from her restaurant at Marcos highway to her home at Palanza Street, Araneta
Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading
towards the direction of Manila. Before reaching A. Lake Street, she noticed something
wrong with her tires; she stopped at a lighted place where there were people, to verify
whether she had a flat tire and to solicit help if needed. Having been told by the people
present that her rear right tire was flat and that she cannot reach her home in that cars
condition, she parked along the sidewalk, about 1 feet away, put on her emergency lights,
alighted from the car, and went to the rear to open the trunk. She was standing at the left
side of the rear of her car pointing to the tools to a man who will help her fix the tire when
she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and
registered in the name of defendant Alexander Commercial, Inc. Because of the impact
plaintiff was thrown against the windshield of the car of the defendant, which was
destroyed, and then fell to the ground. She was pulled out from under defendants car.
Plaintiffs left leg was severed up to the middle of her thigh, with only some skin and sucle
connected to the rest of the body. She was brought to
the UERM Medical Memorial Center where she was found to have a traumatic amputation,
leg, left up to distal thigh (above knee). She was confined in the hospital for twenty (20)
days and was eventually fitted with an artificial leg. The expenses for the hospital
confinement (P 120,000.00) and the cost of the artificial leg (P27,000.00) were paid by
defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary
damages in the amount of P100,000.00 and other medical and related expenses amounting
to a total of P180,000.00, including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home, travelling
at 55 kph; considering that it was raining, visibility was affected and the road was wet. Traffic
was light. He testified that he was driving along the inner portion of the right lane of Aurora
Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in the
vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling
at 80 kph, with full bright lights. Temporarily blinded, he instinctively swerved to the right
to avoid colliding with the oncoming vehicle, and bumped plaintiffs car, which he did not see
because it was midnight blue in color, with no parking lights or early warning device, and the
area was poorly lighted. He alleged in his defense that the left rear portion of plaintiffs car
was protruding as it was then at a standstill diagonally on the outer portion of the right
lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of plaintiffs
witness that after being bumped the car of the plaintiff swerved to the right and hit another
car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff
was reckless or negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the
sketch of the three cars involved in the accident, testified that the plaintiffs car was near
the sidewalk; this witness did not remember whether the hazard lights of plaintiffs car were
on, and did not notice if there was an early warning device; there was a street light at the
corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e.
things can be seen (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her
car and opened the trunk compartment, defendants car came approaching very fast ten
meters from the scene; the car was zigzagging. The rear left side of plaintiffs car was
bumped by the front right portion of defendants car; as a consequence, the plaintiffs car
swerved to the right and hit the parked car on the sidewalk. Plaintiff was thrown to the
windshield of defendants car, which was destroyed, and landed under the car. He stated
that defendant was under the influence of liquor as he could smell it very well (pp. 43, 79,
tsn., June 17, 1991).
After trial, the lower court sustained the plaintiffs submissions and found defendant
Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil
Code. The trial court likewise held Alexander Commercial, Inc., Lis employer, jointly and
severally liable for damages pursuant to Article 2180. It ordered the defendants to jointly and
severally pay the following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of the
plaintiff as a result of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of
plaintiffs Bistro La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b)
P20,000.00, a month, as unrealized profits of the plaintiff in her Bistro La Conga restaurant,
from August, 1990 until the date of this judgment; and (c) P30,000.00, a month, for
unrealized profits in plaintiffs two (2) beauty salons from July, 1990 until the date of this
decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages,
5. P60,000.00, as reasonable attorneys fees; and
6. Costs.
As a result of the trial courts decision, defendants filed an Omnibus Motion for New
Trial and for Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs.
Richard Li), tending to show that the point of impact, as depicted by the pieces of
glass/debris from the parties cars, appeared to be at the center of the right lane of Aurora
Blvd. The trial court denied the motion. Defendants forthwith filed an appeal with the
respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals
found that there was ample basis from the evidence of record for the trial courts finding
that the plaintiffs car was properly parked at the right, beside the sidewalk when it was
bumped by defendants car.[1] Dismissing the defendants argument that the plaintiffs car
was improperly parked, almost at the center of the road, the respondent court noted that
evidence which was supposed to prove that the car was at or near center of the right lane
was never presented during the trial of the case.
[2]
The respondent court furthermore
observed that:
Defendant Lis testimony that he was driving at a safe speed of 55 km./hour is self serving; it
was not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that
he was outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about
2:00 a.m. of June 24, 1990 when his attention was caught by a beautiful lady (referring to the
plaintiff) alighting from her car and opening the trunk compartment; he noticed the car of
Richard Li approaching very fast ten (10) meters away from the scene; defendants car was
zigzagging, although there were no holes and hazards on the street, and bumped the leg of
the plaintiff who was thrown against the windshield of defendants car, causing its
destruction. He came to the rescue of the plaintiff, who was pulled out from under
defendants car and was able to say hurting words to Richard Li because he noticed that
the latter was under the influence of liquor, because he could smell it very well (p. 36, et.
seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the
1970s, but did not know either plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries
sustained by the plaintiff, the Court of Appeals, in its decision, however, absolved the Lis
employer, Alexander Commercial, Inc. from any liability towards petitioner Lourdes
Valenzuela and reduced the amount of moral damages to P500,000.00. Finding justification
for exemplary damages, the respondent court allowed an award of P50,000.00 for the same,
in addition to costs, attorneys fees and the other damages. The Court of Appeals, likewise,
dismissed the defendants counterclaims.
[3]

Consequently, both parties assail the respondent courts decision by filing two separate
petitions before this Court. Richard Li, in G.R. No. 117944, contends that he should not be
held liable for damages because the proximate cause of the accident was Ma. Lourdes
Valenzuelas own negligence. Alternatively, he argues that in the event that this Court finds
him negligent, such negligence ought to be mitigated by the contributory negligence of
Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent
courts decision insofar as it absolves Alexander Commercial, Inc. from liability as the owner
of the car driven by Richard Li and insofar as it reduces the amount of the actual and moral
damages awarded by the trial court.
[4]

As the issues are intimately related, both petitions are hereby consolidated. It is plainly
evident that the petition for review in G.R. No. 117944 raises no substantial questions of law.
What it, in effect, attempts to have this Court review are factual findings of the trial court, as
sustained by the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi
Lancer provided by his company in the early morning hours of June 24, 1990. This we will not
do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon
us, and this Court will not normally disturb such factual findings unless the findings of fact of
the said court are palpably unsupported by the evidence on record or unless the judgment
itself is based on a misapprehension of facts.
[5]

In the first place, Valenzuelas version of the incident was fully corroborated by an
uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment located
just across the scene of the accident. On trial, he testified that he observed a car being driven
at a very fast speed, racing towards the general direction of Araneta Avenue.
[6]
Rodriguez
further added that he was standing in front of his establishment, just ten to twenty feet away
from the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the
windshield of the defendants Mitsubishi Lancer, from where she eventually fell under the
defendants car. Spontaneously reacting to the incident, he crossed the street, noting that a
man reeking with the smell of liquor had alighted from the offending vehicle in order to
survey the incident.
[7]
Equally important, Rodriguez declared that he observed Valenzuelas
car parked parallel and very near the sidewalk,
[8]
contrary to Lis allegation that Valenzuelas
car was close to the center of the right lane. We agree that as between Lis self-serving
asseverations and the observations of a witness who did not even know the accident victim
personally and who immediately gave a statement of the incident similar to his testimony to
the investigator immediately after the incident, the latters testimony deserves greater
weight. As the court emphasized:
The issue is one of credibility and from Our own examination of the transcript, We are not
prepared to set aside the trial courts reliance on the testimony of Rodriguez negating
defendants assertion that he was driving at a safe speed. While Rodriguez drives only a
motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-
examination and no attempt was made to question his competence or the accuracy of his
statement that defendant was driving very fast. This was the same statement he gave to
the police investigator after the incident, as told to a newspaper report (Exh. P). We see no
compelling basis for disregarding his testimony.
The alleged inconsistencies in Rodriguez testimony are not borne out by an examination of
the testimony. Rodriguez testified that the scene of the accident was across the street where
his beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He
did not state that the accident transpired immediately in front of his establishment. The
ownership of the Lambingan sa Kambingan is not material; the business is registered in the
name of his mother, but he explained that he owns the establishment (p. 5, tsn., June 20,
1991).
Moreover, the testimony that the streetlights on his side of Aurora Boulevard were on the
night the accident transpired (p. 8) is not necessarily contradictory to the testimony of Pfc.
Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman
Street (p. 45, tsn., Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a
heavy rain and the rain has stopped and he was outside his establishment at the time the
accident transpired (pp. 64-65, tsn., June 17, 1991). This was consistent with plaintiffs
testimony that it was no longer raining when she left Bistro La Conga (pp. 10-11, tsn., April
29, 1991). It was defendant Li who stated that it was raining all the way in an attempt to
explain why he was travelling at only 50-55 kph. (p. 11, tsn., Oct. 14, 1991). As to the
testimony of Pfc. Ramos that it was raining, he arrived at the scene only in response to a
telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no
substantial inconsistencies in Rodriguezs testimony that would impair the essential integrity
of his testimony or reflect on his honesty. We are compelled to affirm the trial courts
acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Lis testimony
was peppered with so many inconsistencies leading us to conclude that his version of the
accident was merely adroitly crafted to provide a version, obviously self-serving, which would
exculpate him from any and all liability in the incident. Against Valenzuelas corroborated
claims, his allegations were neither backed up by other witnesses nor by the circumstances
proven in the course of trial. He claimed that he was driving merely at a speed of 55 kph.
when out of nowhere he saw a dark maroon lancer right in front of him, which was (the)
plaintiffs car. He alleged that upon seeing this sudden apparition he put on his brakes to
no avail as the road was slippery.
[9]

One will have to suspend disbelief in order to give credence to Lis disingenuous and
patently self-serving asseverations. The average motorist alert to road conditions will have no
difficulty applying the brakes to a car traveling at the speed claimed by Li. Given a light
rainfall, the visibility of the street, and the road conditions on a principal metropolitan
thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing
conditions of the road if he were alert - as every driver should be - to those conditions.
Driving exacts a more than usual toll on the senses. Physiological fight or
flight
[10]
mechanisms are at work, provided such mechanisms were not dulled by drugs,
alcohol, exhaustion, drowsiness, etc.
[11]
Lis failure to react in a manner which would have
avoided the accident could therefore have been only due to either or both of the two factors:
1) that he was driving at a very fast speed as testified by Rodriquez; and 2) that he was
under the influence of alcohol.
[12]
Either factor working independently would have
diminished his responsiveness to road conditions, since normally he would have slowed
down prior to reaching Valenzuelas car, rather than be in a situation forcing him to suddenly
apply his brakes. As the trial court noted (quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the
incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon
lancer right in front of him, which was plaintiffs car, indicating, again, thereby that, indeed,
he was driving very fast, oblivious of his surroundings and the road ahead of him, because if
he was not, then he could not have missed noticing at a still far distance the parked car of the
plaintiff at the right side near the sidewalk which had its emergency lights on, thereby
avoiding forcefully bumping at the plaintiff who was then standing at the left rear edge of her
car.
Since, according to him, in his narration to the San Juan Police, he put on his brakes when he
saw the plaintiffs car in front of him, but that it failed as the road was wet and slippery, this
goes to show again, that, contrary to his claim, he was, indeed, running very fast. For, were it
otherwise, he could have easily completely stopped his car, thereby avoiding the bumping of
the plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he
was running slow, as he claimed, at only about 55 kilometers per hour, then, inspite of the
wet and slippery road, he could have avoided hitting the plaintiff by the mere expedient or
applying his brakes at the proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which is contrary to
what he told the police immediately after the accident and is, therefore, more believable,
that he did not actually step on his brakes, but simply swerved a little to the right when he
saw the on-coming car with glaring headlights, from the opposite direction, in order to avoid
it.
For, had this been what he did, he would not have bumped the car of the plaintiff which was
properly parked at the right beside the sidewalk. And, it was not even necessary for him to
swerve a little to the right in order to safely avoid a collision with the on-coming car,
considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted
white paint, and there is plenty of space for both cars, since her car was running at the right
lane going towards Manila and the on-coming car was also on its right lane going to
Cubao.
[13]

Having come to the conclusion that Li was negligent in driving his company-issued
Mitsubishi Lancer, the next question for us to determine is whether or not Valenzuela was
likewise guilty of contributory negligence in parking her car alongside Aurora Boulevard,
which entire area Li points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of contributory
negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a
legal cause to the harm he has suffered, which falls below the standard to which he is
required to conform for his own protection.
[14]
Based on the foregoing definition, the
standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for
her own protection was not to park at all at any point of Aurora Boulevard, a no parking
zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is confronted
with an emergency is not to be held up to the standard of conduct normally applied to an
individual who is in no such situation. The law takes stock of impulses of humanity when
placed in threatening or dangerous situations and does not require the same standard of
thoughtful and reflective care from persons confronted by unusual and oftentimes
threatening conditions.
[15]
Under the emergency rule adopted by this Court in Gan vs Court
of Appeals,
[16]
an individual who suddenly finds himself in a situation of danger and is
required to act without much time to consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence if he fails to undertake what subsequently
and upon reflection may appear to be a better solution, unless the emergency was brought
by his own negligence.
[17]

Applying this principle to a case in which the victims in a vehicular accident swerved to
the wrong lane to avoid hitting two children suddenly darting into the street, we held, in Mc
Kee vs. Intermediate Appellate Court,
[18]
that the driver therein, Jose Koh, adopted the best
means possible in the given situation to avoid hitting the children. Using the emergency
rule the court concluded that Koh, in spite of the fact that he was in the wrong lane when
the collision with an oncoming truck occurred, was not guilty of negligence.
[19]

While the emergency rule applies to those cases in which reflective thought, or the
opportunity to adequately weigh a threatening situation is absent, the conduct which is
required of an individual in such cases is dictated not exclusively by the suddenness of the
event which absolutely negates thoughtful care, but by the over-all nature of the
circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will
not be faulted for stopping at a point which is both convenient for her to do so and which is
not a hazard to other motorists. She is not expected to run the entire boulevard in search for
a parking zone or turn on a dark Street or alley where she would likely find no one to help
her. It would be hazardous for her not to stop and assess the emergency (simply because the
entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would
be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon
reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire.
To avoid putting herself and other motorists in danger, she did what was best under the
situation. As narrated by respondent court:
She stopped at a lighted place where there were people, to verify whether she had a flat
tire and to solicit help if needed. Having been told by the people present that her rear right
tire was flat and that she cannot reach her home she parked along the sidewalk, about
1 feet away, behind a Toyota Corona Car.
[20]
In fact, respondent court noted, Pfc. Felix
Ramos, the investigator on the scene of the accident confirmed that Valenzuelas car was
parked very close to the sidewalk.
[21]
The sketch which he prepared after the incident
showed Valenzuelas car partly straddling the sidewalk, clear and at a convenient distance
from motorists passing the right lane ofAurora Boulevard. This fact was itself corroborated by
the testimony of witness Rodriguez.
[22]

Under the circumstances described, Valenzuela did exercise the standard reasonably
dictated by the emergency and could not be considered to have contributed to the
unfortunate circumstances which eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her car on a sidewalk in Aurora
Boulevard was not of her own making, and it was evident that she had taken all reasonable
precautions.
Obviously in the case at bench, the only negligence ascribable was the negligence of Li
on the night of the accident. Negligence, as it is commonly understood is conduct which
creates an undue risk of harm to others.
[23]
It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury.
[24]
We stressed, in Corliss vs. Manila Railroad Company,
[25]
that
negligence is the want of care required by the circumstances.
The circumstances established by the evidence adduced in the court below plainly
demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears emphasis
that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour had settled
into a drizzle rendering the street slippery. There is ample testimonial evidence on record to
show that he was under the influence of liquor. Under these conditions, his chances of
effectively dealing with changing conditions on the road were significantly lessened. As
Prosser and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be prepared for the
sudden appearance of obstacles and persons on the highway, and of other vehicles at
intersections, such as one who sees a child on the curb may be required to anticipate its
sudden dash into the street, and his failure to act properly when they appear may be found
to amount to negligence.
[26]

Lis obvious unpreparedness to cope with the situation confronting him on the night of
the accident was clearly of his own making.
We now come to the question of the liability of Alexander Commercial, Inc. Lis
employer. In denying liability on the part of Alexander Commercial, the respondent court
held that:
There is no evidence, not even defendant Lis testimony, that the visit was in connection with
official matters. His functions as assistant manager sometimes required him to perform work
outside the office as he has to visit buyers and company clients, but he admitted that on the
night of the accident he came from BF Homes Paraaque he did not have business from the
company (pp. 25-26, tsn, Sept. 23, 1991). The use ofthe company car was partly required by
the nature of his work, but the privilege of using it for non-official business is a benefit,
apparently referring to the fringe benefits attaching to his position.
Under the civil law, an employer is liable for the negligence of his employees in the discharge
of their respective duties, the basis of which liability is not respondeat superior, but the
relationship of pater familias, which theory bases the liability of the master ultimately on his
own negligence and not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil.
18). Before an employer may be held liable for the negligence of his employee, the act or
omission which caused damage must have occurred while an employee was in the actual
performance of his assigned tasks or duties (Francis High School vs. Court of Appeals, 194
SCRA 341). In defining an employers liability for the acts done within the scope of the
employees assigned tasks, the Supreme Court has held that this includes any act done by an
employee, in furtherance of the interests of the employer or for the account of the employer
at the time of the infliction of the injury or damage (Filamer Christian
Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to
impose upon its employees the necessary discipline called for in the performance of any act
indispensable to the business and beneficial to their employer (at p. 645).
In light of the foregoing, We are unable to sustain the trial courts finding that since
defendant Li was authorized by the company to use the company car either officially or
socially or even bring it home, he can be considered as using the company car in the service
of his employer or on the occasion of his functions. Driving the company car was not among
his functions as assistant manager; using it for non-official purposes would appear to be a
fringe benefit, one of the perks attached to his position. But to impose liability upon the
employer under Article 2180 of the Civil Code, earlier quoted, there must be a showing that
the damage was caused by their employees in the service of the employer or on the occasion
of their functions. There is no evidence that Richard Li was at the time of the accident
performing any act in furtherance of the companys business or its interests, or at least for its
benefit. The imposition of solidary liability against defendant Alexander Commercial
Corporation must therefore fail.
[27]

We agree with the respondent court that the relationship in question is not based on
the principle of respondeat superior, which holds the master liable for acts of the servant, but
that of pater familias, in which the liability ultimately falls upon the employer, for his failure
to exercise the diligence of a good father of the family in the selection and supervision of his
employees. It is up to this point, however, that our agreement with the respondent court
ends. Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil
Code,
[28]
we are of the opinion that Lis employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals
[29]
upon which respondent
court has placed undue reliance, dealt with the subject of a school and its teachers
supervision of students during an extracurricular activity. These cases now fall under the
provision on special parental authority found in Art. 218 of the Family Code which generally
encompasses all authorized school activities, whether inside or outside school premises.
Second, the employers primary liability under the concept of pater familias embodied
by Art. 2180 (in relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in
character. His liability is relieved on a showing that he exercised the diligence of a good
father of the family in the selection and supervision of its employees. Once evidence is
introduced showing that the employer exercised the required amount of care in selecting its
employees, half of the employers burden is overcome. The question of
diligent supervision, however, depends on the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent
supervision of its employee during the performance of the latters assigned tasks would be
enough to relieve him of the liability imposed by Article 2180 in relation to Article 2176 of
the Civil Code. The employer is not expected to exercise supervision over either the
employees private activities or during the performance of tasks either unsanctioned by the
former or unrelated to the employees tasks. The case at bench presents a situation of a
different character, involving a practice utilized by large companies with either their
employees of managerial rank or their representatives.
It is customary for large companies to provide certain classes of their employees with
courtesy vehicles. These company cars are either wholly owned and maintained by the
company itself or are subject to various plans through which employees eventually acquire
their vehicles after a given period of service, or after paying a token amount. Many
companies provide liberal car plans to enable their managerial or other employees of rank
to purchase cars, which, given the cost of vehicles these days, they would not otherwise be
able to purchase on their own.
Under the first example, the company actually owns and maintains the car up to the
point of turnover of ownership to the employee; in the second example, the car is really
owned and maintained by the employee himself. In furnishing vehicles to such employees,
are companies totally absolved of responsibility when an accident involving a company-
issued car occurs during private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first plan,
require rigorous tests of road worthiness from their agents prior to turning over the car
(subject of company maintenance) to their representatives. In other words, like a good father
of a family, they entrust the company vehicle only after they are satisfied that the employee
to whom the car has been given full use of the said company car for company or private
purposes will not be a threat or menace to himself, the company or to others. When a
company gives full use and enjoyment of a company car to its employee, it in effect
guarantees that it is, like every good father, satisfied that its employee will use the privilege
reasonably and responsively.
In the ordinary course of business, not all company employees are given the privilege
of using a company-issued car. For large companies other than those cited in the example of
the preceding paragraph, the privilege serves important business purposes either related to
the image of success an entity intends to present to its clients and to the public in general, or
for practical and utilitarian reasons - to enable its managerial and other employees of rank or
its sales agents to reach clients conveniently. In most cases, providing a company car serves
both purposes. Since important business transactions and decisions may occur at all hours in
all sorts of situations and under all kinds of guises, the provision for the unlimited use of a
company car thereforeprincipally serves the business and goodwill of a company and only
incidentally the private purposes of the individual who actually uses the car, the managerial
employee or company sales agent. As such, in providing for a company car for business use
and/or for the purpose of furthering the companys image, a company owes a responsibility
to the public to see to it that the managerial or other employees to whom it entrusts virtually
unlimited use of a company issued car are able to use the company issue capably and
responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his
testimony before the trial court, he admitted that his functions as Assistant Manager did not
require him to scrupulously keep normal office hours as he was required quite often to
perform work outside the office, visiting prospective buyers and contacting and meeting with
company clients.
[30]
These meetings, clearly, were not strictly confined to routine hours
because, as a managerial employee tasked with the job of representing his company with its
clients, meetings with clients were both social as well as work-related functions. The service
car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the
corporation - to put up the front of a highly successful entity, increasing the latters goodwill
before its clientele. It also facilitated meeting between Li and its clients by providing the
former with a convenient mode of travel.
Moreover, Lis claim that he happened to be on the road on the night of the accident
because he was coming from a social visit with an officemate in Paraaque was a bare
allegation which was never corroborated in the court below. It was obviously self-serving.
Assuming he really came from his officemates place, the same could give rise to speculation
that he and his officemate had just been from a work-related function, or they were together
to discuss sales and other work related strategies.
In fine, Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that it
exercised the care and diligence of a good father of the family in entrusting its company car
to Li. No allegations were made as to whether or not the company took the steps necessary
to determine or ascertain the driving proficiency and history of Li, to whom it gave full and
unlimited use of a company car.
[31]
Not having been able to overcome the burden of
demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle ofbonus pater familias, ought to be jointly and severally
liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.

Finally, we find no reason to overturn the amount of damages awarded by the
respondent court, except as to the amount of moral damages. In the case of moral damages,
while the said damages are not intended to enrich the plaintiff at the expense of a
defendant, the award should nonetheless be commensurate to the suffering inflicted. In the
instant case we are of the opinion that the reduction in moral damages from an amount of P
1,000,000.00 to P500,000.00 by the Court of Appeals was not justified considering the nature
of the resulting damage and the predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation
of her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in her
prosthetic devise due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have
to be replaced and re-adjusted to changes in the size of her lower limb effected by the
biological changes of middle-age, menopause and aging. Assuming she reaches menopause,
for example, the prosthetic will have to be adjusted to respond to the changes in bone
resulting from a precipitate decrease in calcium levels observed in the bones of all post-
menopausal women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the physiologic changes
which her body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are painful.
The foregoing discussion does not even scratch the surface of the nature of the
resulting damage because it would be highly speculative to estimate the amount of
psychological pain, damage and injury which goes with the sudden severing of a vital portion
of the human body. A prosthetic device, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the lower limb. The
sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.
As the amount of moral damages are subject to this Courts discretion, we are of the
opinion that the amount of P1,000,000.00 granted by the trial court is in greater accord with
the extent and nature of the injury -. physical and psychological - suffered by Valenzuela as a
result of Lis grossly negligent driving of his Mitsubishi Lancer in the early morning hours of
the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the court of Appeals is modified
with the effect of REINSTATING the judgment of the Regional Trial Court.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which
affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that
in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner
of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a
tank truck into the underground storage, right at the opening of the receiving tank where the
nozzle of the hose was inserted. The fire spread to and burned several neighboring houses,
including the personal properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as
alleged owner of the station and the second as its agent in charge of operation. Negligence
on the part of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and
that respondents had exercised due care in the premises and with respect to the supervision
of their employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared
by the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed
Forces of the Philippines. Portions of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline from a tank truck, plate No. T-
5292 into the underground tank of the Caltex Gasoline Station located at
the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the
main valve of the said underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline
hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following accessorias
and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this
Office a copy of a photograph taken during the fire and which is submitted
herewith. it appears in this picture that there are in the premises a coca-cola cooler
and a rack which according to information gathered in the neighborhood contained
cigarettes and matches, installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales
regarding the history of the gasoline station and what the chief of the fire department had
told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of respondents; secondly, that with
respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as witness but respondents
waived their right to cross-examine him although they had the opportunity to do so; and
thirdly, that in any event the said reports are admissible as an exception to the hearsay rule
under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as
evidence, were objected to by counsel for each of respondents on the ground that they were
hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the court's
resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of
the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location
of the fire and, if possible, gather witnesses as to the occurrence, and that he brought the
report with him. There was nothing, therefore, on which he need be cross-examined; and the
contents of the report, as to which he did not testify, did not thereby become competent
evidence. And even if he had testified, his testimony would still have been objectionable as
far as information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123, which
provides that "entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry
was made by a public officer, or by another person specially enjoined by law to do so; (b) that
it was made by the public officer in the performance of his duties, or by such other person in
the performance of a duty specially enjoined by law; and (c) that the public officer or other
person had sufficient knowledge of the facts by him stated, which must have been acquired
by him personally or through official information (Moran, Comments on the Rules of Court,
Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the
material facts recited in the reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? As to
some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred; to Leandro
Flores, driver of the tank truck from which gasoline was being transferred at the time to the
underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared the reports, the
persons who made the statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for record.
1

The reports in question do not constitute an exception to the hearsay rule; the facts stated
therein were not acquired by the reporting officers through official information, not having
been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the
doctrine of res ipsa loquitur should apply so as to presume negligence on the part of
appellees. Both the trial court and the appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has actually been applied in this
jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No.
3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by
Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions
were loading grass between the municipalities of Bay and Calauan, in the province
of Laguna, with clear weather and without any wind blowing, an electric
transmission wire, installed and maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly parted, and one of the broken
ends hit the head of the plaintiff as he was about to board the truck. As a result,
plaintiff received the full shock of 4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge coursed through his body and
caused extensive and serious multiple burns from skull to legs, leaving the bone
exposed in some parts and causing intense pain and wounds that were not
completely healed when the case was tried on June 18, 1947, over one year after
the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show
any specific act of negligence, but the appellate court overruled the defense under the
doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule, as contended by the appellant, that in
case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was the negligence of
the defendant, it is also a recognized principal that "where the thing which caused
injury, without fault of the injured person, is under the exclusive control of the
defendant and the injury is such as in the ordinary course of things does not occur
if he having such control use proper care, it affords reasonable evidence, in the
absence of the explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due
care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed.
680.) This rule is known by the name of res ipsa loquitur (the transaction speaks for
itself), and is peculiarly applicable to the case at bar, where it is unquestioned that
the plaintiff had every right to be on the highway, and the electric wire was under
the sole control of defendant company. In the ordinary course of events, electric
wires do not part suddenly in fair weather and injure people, unless they are
subjected to unusual strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless some one was negligent. (Byrne v.
Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that
rule). Consequently, in the absence of contributory negligence (which is admittedly
not present), the fact that the wire snapped suffices to raise a reasonable
presumption of negligence in its installation, care and maintenance. Thereafter, as
observed by Chief Baron Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding
on the Supreme Court, but we do not consider this a reason for not applying the particular
doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in
the storage and sale of which extreme care must be taken. On the other hand, fire is not
considered a fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year
1934 was leased to the Shell Petroleum Corporation for a gasoline filling station.
On October 8, 1934, during the term of the lease, while gasoline was being
transferred from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started with resulting
damages to the building owned by Jones. Alleging that the damages to his building
amounted to $516.95, Jones sued the Shell Petroleum Corporation for the recovery
of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered judgment in his
favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment,
on the ground the testimony failed to show with reasonable certainty any
negligence on the part of the Shell Petroleum Corporation or any of its agents or
employees. Plaintiff applied to this Court for a Writ of Review which was granted,
and the case is now before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one relating to the
cause of the fire and the other relating to the spreading of the gasoline about the
filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire,
no witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the
control of the defendant and operated by its agents or employees. We further find
from the uncontradicted testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of and being
operated by the agents or employees of the defendant, extended to the hose and
tank truck, and was communicated from the burning hose, tank truck, and escaping
gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's
failure to explain the cause of the fire or to show its lack of knowledge of the cause,
plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which
the doctrine may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the
ordinary course of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in absence of explanation
by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and
adopted by the courts of last resort. Some of the cases in this jurisdiction in which
the doctrine has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann.
1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So.
892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline
station, with all its appliances, equipment and employees, was under the control of
appellees. A fire occurred therein and spread to and burned the neighboring houses. The
persons who knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-
1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station
complained of occupies a lot approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a very busy business district near
the Obrero Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded
and this constitute a secondary hazard to its operation which in turn endangers the
entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete
walls south and west adjoining the neighborhood are only 2-1/2 meters high at
most and cannot avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only
material damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is
also used by its operator as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the possible outbreak of fire at this
already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his
duties on the basis of his own personal observation of the facts reported, may properly be
considered as an exception to the hearsay rule. These facts, descriptive of the location and
objective circumstances surrounding the operation of the gasoline station in question,
strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on
their face they called for more stringent measures of caution than those which would satisfy
the standard of due diligence under ordinary circumstances. There is no more eloquent
demonstration of this than the statement of Leandro Flores before the police investigator.
Flores was the driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire broke out. He
said: "Before loading the underground tank there were no people, but while the loading was
going on, there were people who went to drink coca-cola (at the coca-cola stand) which is
about a meter from the hole leading to the underground tank." He added that when the tank
was almost filled he went to the tank truck to close the valve, and while he had his back
turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for
another negligent omission on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping over it. As it was the concrete
wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized
iron sheets, which would predictably crumple and melt when subjected to intense heat.
Defendants' negligence, therefore, was not only with respect to the cause of the fire but also
with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who, without
authority, or permission of answering defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No evidence on this point was adduced,
but assuming the allegation to be true certainly any unfavorable inference from the
admission may be taken against Boquiren it does not extenuate his negligence. A decision
of the Supreme Court of Texas, upon facts analogous to those of the present case, states the
rule which we find acceptable here. "It is the rule that those who distribute a dangerous
article or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally accepted rule as applied
to torts that 'if the effects of the actor's negligent conduct actively and continuously operate
to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm, does not protect the actor from liability.'
(Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The
intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas
Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants.
This issue depends on whether Boquiren was an independent contractor, as held by the
Court of Appeals, or an agent of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed upon by this Court. These facts are: (1)
Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex
owned the gasoline station and all the equipment therein; (3) Caltex exercised control over
Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to
the station had the name of CALTEX painted on it; and (5) the license to store gasoline at the
station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-
Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged that
the "alleged driver, if one there was, was not in his employ, the driver being an employee of
the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren later
on amended his answer, and that among the changes was one to the effect that he was not
acting as agent of Caltex. But then again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it stated no cause of action since under the
allegations thereof he was merely acting as agent of Caltex, such that he could not have
incurred personal liability. A motion to dismiss on this ground is deemed to be an admission
of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims
that the business conducted at the service station in question was owned and operated by
Boquiren. But Caltex did not present any contract with Boquiren that would reveal the nature
of their relationship at the time of the fire. There must have been one in existence at that
time. Instead, what was presented was a license agreement manifestly tailored for purposes
of this case, since it was entered into shortly before the expiration of the one-year period it
was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on
November 29, 1948, but made effective as of January 1, 1948 so as to cover the date of the
fire, namely, March 18, 1948. This retroactivity provision is quite significant, and gives rise to
the conclusion that it was designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to
person or property while in the property herein licensed, it being understood and agreed
that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an
independent contractor. Under that agreement Boquiren would pay Caltex the purely
nominal sum of P1.00 for the use of the premises and all the equipment therein. He could
sell only Caltex Products. Maintenance of the station and its equipment was subject to the
approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as
licensee without the consent of Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two
days prior written notice. Caltex could at any time cancel and terminate the agreement in
case Boquiren ceased to sell Caltex products, or did not conduct the business with due
diligence, in the judgment of Caltex. Termination of the contract was therefore a right
granted only to Caltex but not to Boquiren. These provisions of the contract show the extent
of the control of Caltex over Boquiren. The control was such that the latter was virtually an
employee of the former.
Taking into consideration the fact that the operator owed his position to the
company and the latter could remove him or terminate his services at will; that the
service station belonged to the company and bore its tradename and the operator
sold only the products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and the company
took charge of their repair and maintenance; that an employee of the company
supervised the operator and conducted periodic inspection of the company's
gasoline and service station; that the price of the products sold by the operator
was fixed by the company and not by the operator; and that the receipts signed by
the operator indicated that he was a mere agent, the finding of the Court of
Appeals that the operator was an agent of the company and not an independent
contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely
upon the name or title given it by the contracting parties, should thereby a
controversy as to what they really had intended to enter into, but the way the
contracting parties do or perform their respective obligations stipulated or agreed
upon may be shown and inquired into, and should such performance conflict with
the name or title given the contract by the parties, the former must prevail over
the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance Company
of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the
apparent relationship of employer and independent contractor, and of avoiding
liability for the negligence of the employees about the station; but the company
was not satisfied to allow such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct the method by which the
work contracted for should be performed. By reserving the right to terminate the
contract at will, it retained the means of compelling submission to its orders.
Having elected to assume control and to direct the means and methods by which
the work has to be performed, it must be held liable for the negligence of those
performing service under its direction. We think the evidence was sufficient to
sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no
cash invoices were presented to show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the
amount of P2,000.00 collected by them on the insurance of the house. The deduction is now
challenged as erroneous on the ground that Article 2207 of the New Civil Code, which
provides for the subrogation of the insurer to the rights of the insured, was not yet in effect
when the loss took place. However, regardless of the silence of the law on this point at that
time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to the
claim of the heirs of Ong P7,500.00 was adjudged by the lower court on the basis of the
assessed value of the property destroyed, namely, P1,500.00, disregarding the testimony of
one of the Ong children that said property was worth P4,000.00. We agree that the court
erred, since it is of common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over positive evidence
of such value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the complaint, and costs.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 83589 March 13, 1991
RAMON FAROLAN as ACTING COMMISSIONER OF CUSTOMS, and GUILLERMO PARAYNO, as
CHIEF OF CUSTOM INTELLIGENCE and INVESTIGATION DIVISION, petitioners,
vs.
SOLMAC MARKETING CORPORATION and COURT OF APPEALS, respondents.
Dakila F. Castro & Associates for private respondent.

SARMIENTO, J.:p
This petition for review on certiorari, instituted by the Solicitor General on behalf of the
public officers-petitioners, seek the nullification and setting aside of the Resolution
1
dated
May 25, 1988 of the Court of Appeals in CA-G.R. No. SP-10509, entitled "Solmac Marketing
Corporation vs. Ramon Farolan, Acting Commissioner of Customs, and Guillermo Parayno,
Chief of Customs Intelligence and Investigation Division," which adjudged these public
officers to pay solidarily and in their private personal capacities respondent Solmac
Marketing Corporation temperate damages in the sum of P100,000.00, exemplary damages
in the sum of P50,000.00, and P25,000.00, as attorney's fees and expenses of litigation. This
challenged resolution of the respondent court modified its decision
2
of July 27, 1987 by
reducing into halves the original awards of P100,000.00 and P50,000.00 for exemplary
damages and attorney's fees and litigation expenses, respectively, keeping intact the original
grant of P100,000.00 in the concept of temperate damages. (Strangely, the first name of
petitioner Farolan stated in the assailed resolution, as well as in the decision, of the
respondent court is "Damian" when it should be "Ramon", his correct given name. Strictly
speaking, petitioner Ramon Farolan could not be held liable under these decision and
resolution for he is not the one adjudged to pay the huge damages but a different person.
Nonetheless, that is of no moment now considering the disposition of this ponencia.)
The relevant facts, as culled from the records, are as follows:
At the time of the commission of the acts complained of by the private respondent, which
was the subject of the latter's petition for mandamus and injunction filed with the Regional
Trial Court (RTC) of Manila in Civil Case No. 84-23537, petitioner Ramon Farolan was then the
Acting Commissioner of Customs while petitioner Guillermo Parayno was then the Acting
Chief, Customs Intelligence and Investigation Division. They were thus sued in their official
capacities as officers in the government as clearly indicated in the title of the case in the
lower courts and even here in this Court. Nevertheless, they were both held personally liable
for the awarded damages "(s)ince the detention of the goods by the defendants (petitioners
herein) was irregular and devoid of legal basis, hence, not done in the regular performance of
official duty . . . ."
3
However, as adverted to at the outset, in the dispositive portion of the
challenged resolution, the one held personally liable is a "Damian Farolan" and not the
petitioner, Ramon Farolan. Also as earlier mentioned, we will ignore that gross error.
Private respondent Solmac Marketing Corporation is a corporation organized and existing
under the laws of the Philippines. It was the assignee, transferee, and owner of an
importation of Clojus Recycling Plastic Products of 202,204 kilograms of what is technically
known as polypropylene film, valued at US$69,250.05.
Polypropylene is a substance resembling polyethelyne which is one of a group of partially
crystalline lightweight thermoplastics used chiefly in making fibers, films, and molded and
extruded products.
4
Without defect, polypropylene film is sold at a much higher price as
prime quality film. Once rejected as defective due to blemishes, discoloration, defective
winding, holes, etc., polypropylene film is sold at a relatively cheap price without guarantee
or return, and the buyer takes the risk as to whether he can recover an average 30% to 50%
usable matter.
5
This latter kind of polypropylene is known as OPP film waste/scrap and this
is what respondent SOLMAC claimed the Clojus shipment to be.
The subject importation, consisting of seventeen (17) containers, arrived in December, 1981.
Upon application for entry, the Bureau of Customs asked respondent SOLMAC for its
authority from any government agency to import the goods described in the bill of lading.
Respondent SOLMAC presented a Board of Investment (BOI) authority for polypropylene film
scrap. However, upon examination of the shipment by the National Institute of Science and
Technology (NIST), it turned out that the fibers of the importation were oriented in such a
way that the materials were stronger than OPP film scrap.
6
In other words, the Clojus
shipment was not OPP film scrap, as declared by the assignee respondent SOLMAC to the
Bureau of Customs and BOI Governor Lilia R. Bautista, but oriented polypropylene the
importation of which is restricted, if not prohibited, under Letter of Instructions (LOI) No.
658-B. Specifically, Sections 1 and 2 of LOI No. 658-B provide that:
xxx xxx xxx
1. The importation of cellophane shall be allowed only for quantities and
types of cellophane that cannot be produced by Philippine Cellophane
Film Corporation. The Board of Investments shall issue guidelines
regulating such importations.
2. The Collector of Customs shall see to the apprehension of all illegal
importations of cellophane and oriented polypropylene (OPP) and the
dumping of imported stock lots of cellophane and OPP.
xxx xxx xxx
Considering that the shipment was different from what had been authorized by the
BOI and by law, petitioners Parayno and Farolan withheld the release of the subject
importation.
On June 7, 1982, petitioner Parayno, then Chief of Customs Intelligence and Investigation
Division, wrote the BOI asking for the latter's advice on whether or no t the subject
importation may be released
7
A series of exchange of correspondence between the BOI and
the Bureau of Customs, on one hand, and between the late Dakila Castro, counsel for the
private respondent, and the BOI and the Bureau of Customs, on the other, ensued, to wit:
xxx xxx xxx
4. In a letter dated August 17, 1982, the BOI agreed that the subject
imports may be released but that holes may be drilled on them by the
Bureau of Customs prior to their release.
5. On January 20, 1983, (the late) Atty. Dakila Castro, (then) counsel of
private respondent wrote to petitioner Commissioner Farolan of Customs
asking for the release of the importation. The importation was not
released, however, on the ground that holes had to be drilled on them
first.
6. Atty. Dakila Castro then wrote a letter dated October 6, 1983, to BOI
Governor Hermenigildo Zayco stressing the reasons why the subject
importation should be released without drilling of holes.
7. On November 8, 1983, BOI Governor H. Zayco wrote a letter to the
Bureau of Customs stating that the subject goods may be released
without drilling of holes inasmuch as the goods arrived prior to the
endorsement on August 17, 1982 to the drilling of holes on all
importations of waste/scrap films.
8. On February 1, 1984, petitioner Commissioner Farolan wrote the BOI
requesting for definite guidelines regarding the disposition of
importations of Oriented Polypropylene (OPP) and Polypropylene (PP)
then being held at the Bureau of Customs.
9. On March 12, 1984, Minister Roberto Ongpin of Trade, the BOI
Chairman, wrote his reply to petitioner Farolan . . . .
8
(This reply of
Minister Ongpin is copied in full infra.)
On March 26, 1984, respondent Solmac filed the action for mandamus and injunction with
the RTC as above mentioned. It prayed for the unconditional release of the subject
importation. It also prayed for actual damages, exemplary damages, and attorney's fees. As
prayed for, the trial court issued a writ of preliminary injunction.
After hearing on the merits, the RTC rendered a decision on February 5, 1985, the dispositive
portion of which reads as follows:
Premises considered, judgment is hereby rendered ordering defendants
to release the subject importation immediately without drilling of holes,
subject only to the normal requirements of the customs processing for
such release to be done with utmost dispatch as time is of the essence;
and the preliminary injunction hereto issued is hereby made permanent
until actual physical release of the merchandise and without
pronouncement as to costs.
SO ORDERED.
9

From the decision of the trial court, Solmac, the plaintiff below and the private respondent
herein, appealed to the Court of Appeals only insofar as to the denial of the award of
damages is concerned. On the other hand, the petitioners did not appeal from this decision.
They did not see any need to appeal because as far as they were concerned, they had already
complied with their duty. They had already ordered the release of the importation "without
drilling of holes," as in fact it was so released, in compliance with the advice to effect such
immediate release contained in a letter of BOI dated October 9, 1984, to Commissioner
Farolan. Thus, to stress, even before the RTC rendered its decision on February 5, 1984, the
Clojus shipment of OPP was released
10
to the private respondent in its capacity as assignee
of the same. Be that it may, the private respondent filed its appeal demanding that the
petitioners be held, in their personal and private capacities, liable for damages despite the
finding of lack of bad faith on the part of the public officers.
After due proceeding, the Court of Appeals rendered a decision
11
on July 27, 1987, the
dispositive portion which reads as follows:
WHEREFORE, the appealed judgment is modified by ordering the
defendants Ramon Farolan and Guillermo Parayno solidarity, in their
personal capacity, to pay the plaintiff temperate damages in the sum of
P100,000, exemplary damages in the sum of P100,000 and P50,000 as
attorney's fees and expenses of litigation. Costs against the defendants.
SO ORDERED.
On August 14, 1987, the petitioners filed a motion for reconsideration of the decision of the
Court of Appeals.
On May 25, 1988, the Court of Appeals issued its resolution modifying the award of damages,
to wit: temperate damages in the sum of P100,000,00, exemplary damages in the sum of
P50,000.00, and P25,000.00 as attorney's fees and expenses of litigation. The respondent
court explained the reduction of the awards for exemplary damages and attorney's fees and
expenses of litigation in this wise:
3. In our decision of July 27, 1987, We awarded to plaintiff-appellant
Pl00,000 as temperate damages, Pl00,000.00 as exemplary damages, and
P50,000.00 as attorney's fees and expenses of litigation. Under Art. 2233
of the Civil Code, recovery of exemplary damages is not a matter of right
but depends upon the discretion of the court. Under Article 2208 of the
Civil Code, attorney's fees and expenses of litigation must always be
reasonable. In view of these provisions of the law, and since the award of
temperate damages is only P100,000.00, the amount of exemplary
damages may not be at par as temperate damages. An award of
P50,000.00, as exemplary damages may already serve the purpose, i.e.,
as an example for the public good. Likewise, the attorney's fees and
expenses of litigation have to be reduced to 25% of the amount of
temperate damages, or P25,000.00, if the same have to be reasonable.
The reduction in the amount of exemplary damages, and attorney's fees
and expenses of litigation would be in accord with justice and fairness.
12

The petitioners now come to this Court, again by the Solicitor General, assigning the
following errors allegedly committed by the respondent court:
I
The Court of Appeals erred in disregarding the finding of the trial court
that the defense of good faith of petitioners (defendants) cannot be
discredited.
II
The Court of Appeals erred in adjudging petitioners liable to pay
temperate damages, exemplary damages, attorney's fees and expenses
of litigation.
13

These two issues boil down to a single question, i.e., whether or not the petitioners acted in
good faith in not immediately releasing the questioned importation, or, simply, can they be
held liable, in their personal and private capacities, for damages to the private respondent.
We rule for the petitioners.
The respondent court committed a reversible error in overruling the trial court's finding that:
. . . with reference to the claim of plaintiff to damages, actual and
exemplary, and attorney's fees, the Court finds it difficult to discredit or
disregard totally the defendants' defense of good faith premised on the
excuse that they were all the time awaiting clarification of the Board of
Investments on the matter.
14

We hold that this finding of the trial court is correct for good faith is always presumed and it
is upon him who alleges the contrary that the burden of proof lies.
15
In Abando v.
Lozada,
16
we defined good faith as "refer[ring] to a state of the mind which is manifested by
the acts of the individual concerned. It consists of the honest intention to abstain from taking
an unconscionable and unscrupulous advantage of another. It is the opposite of fraud, and its
absence should be established by convincing evidence."
We had reviewed the evidence on record carefully and we did not see any clear and
convincing proof showing the alleged bad faith of the petitioners. On the contrary, the record
is replete with evidence bolstering the petitioners' claim of good faith. First, there was the
report of the National Institute of Science and Technology (NIST) dated January 25, 1982
that, contrary to what the respondent claimed, the subject importation was not OPP film
scraps but oriented polypropylene, a plastic product of stronger material, whose importation
to the Philippines was restricted, if not prohibited, under LOI
658-B.
17
It was on the strength of this finding that the petitioners withheld the release of the
subject importation for being contrary to law. Second, the petitioners testified that, on many
occasions, the Bureau of Customs sought the advice of the BOI on whether the subject
importation might be released.
18
Third, petitioner Parayno also testified during the trial that
up to that time (of the trial) there was no clear-cut policy on the part of the BOI regarding the
entry into the Philippines of oriented polypropylene (OPP), as the letters of BOI Governors
Tordesillas and Zayco of November 8, 1983 and September 24, 1982, respectively, ordering
the release of the subject importation did not clarify the BOI policy on the matter. He then
testified on the letter of the BOI Chairman Roberto Ongpin dated March 12, 1984, which
states in full:
Thank you for your letter of 1 February 1984, on the subject of various
importations of Oriented Polypropylene (OPP) and Polypropylene (PP)
withheld by Customs and the confusion over the disposition of such
imports.
I have discussed the matter with Vice-Chairman Tordesillas and Governor
Zayco of the Board of Investments and the following is their explanation:
1. On 22 June 1982, the BOI ruled that importation of OPP/PP film scraps
intended for recycling or repelletizing did not fall within the purview of
LOI 658-B.
2. On 17 August l982, the BOI agreed that holes could be drilled on
subject film imports to prevent their use for other purposes.
3. For importations authorized prior to 22 June 1982, the drilling of holes
should depend on purpose for which the importations was approved by
the BOI that is, for direct packaging use or for recycling/repelletizing into
raw material. The exemption from drilling of holes on Solmac Marketing's
importation under Certificates of Authority issued on 1 April 1982 and 5
May 1982 and on Clojus' importation authorized in 1982 were endorsed
by the BOI on the premise that these were not intended for
recycling/repelletizing.
Should your office have any doubts as to the authorized intended use of
any imported lots of OPP/PP film scraps that you have confiscated, we
have no objection to the drilling of holes to ensure that these are indeed
recycled.
I have requested Governor Zayco to contact your office in order to offer
any further assistance which you may require.
19

It can be seen from all the foregoing that even the highest officers (Chairman Ongpin, Vice-
Chairman Tordesillas, and Governor Zayco) of the BOI themselves were not in agreement as
to what proper course to take on the subject of the various importations of Oriented
Polypropylene (OPP) and Polypropylene (PP) withheld by the Bureau of Customs. The
conflicting recommendations of the BOI on this score prompted the petitioners to seek final
clarification from the former with regard to its policy on these importations. This resulted in
the inevitable delay in the release of the Clojus shipment, one of the several of such
importations. The confusion over the disposition of this particular importation obviates bad
faith. Thus the trial court's finding that the petitioners acted in good faith in not immediately
releasing the Clojus shipment pending a definitive policy of the BOI on this matter is correct.
It is supported by substantial evidence on record, independent of the presumption of good
faith, which as stated earlier, was not successfully rebutted.
When a public officer takes his oath of office, he binds himself to perform the duties of his
office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit
of the public. Thus, in the discharge of his duties, he is to use that prudence, caution, and
attention which careful men use in the management of their affairs. In the case at bar,
prudence dictated that petitioners first obtain from the BOI the latter's definite guidelines
regarding the disposition of the various importations of oriented polypropylene (OPP) and
polypropylene (PP) then being withheld at the Bureau of Customs. These cellophane/film
products were competing with locally manufactured polypropylene and oriented
polypropylene as raw materials which were then already sufficient to meet local demands,
hence, their importation was restricted, if not prohibited under LOI 658-B. Consequently, the
petitioners can not be said to have acted in bad faith in not immediately releasing the import
goods without first obtaining the necessary clarificatory guidelines from the BOI. As public
officers, the petitioners had the duty to see to it that the law they were tasked to
implement, i.e., LOI 658-B, was faithfully complied with.
But even granting that the petitioners committed a mistake in withholding the release of the
subject importation because indeed it was composed of OPP film scraps,
20
contrary to the
evidence submitted by the National Institute of Science and Technology that the same was
pure oriented OPP, nonetheless, it is the duty of the Court to see to it that public officers are
not hampered in the performance of their duties or in making decisions for fear of personal
liability for damages due to honest mistake. Whatever damage they may have caused as a
result of such an erroneous interpretation, if any at all, is in the nature of a damnum absque
injuria. Mistakes concededly committed by public officers are not actionable absent any clear
showing that they were motivated by malice or gross negligence amounting to bad
faith.
21
After all, "even under the law of public officers, the acts of the petitioners are
protected by the presumption of good faith.
22

In the same vein, the presumption, disputable though it may be, that an official duty has
been regularly performed
23
applies in favor of the petitioners. Omnia praesumuntur rite
et solemniter esse acta. (All things are presumed to be correctly and solemnly done.) It was
private respondent's burden to overcome this juris tantum presumption. We are not
persuaded that it has been able to do so.
WHEREFORE, the petition is hereby GRANTED, the assailed Resolution of the respondent
court, in CA-G.R. SP No. 10509, dated May 25, 1988, is SET ASIDE and ANNULLED. No costs.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr.,
the sum of P31,000, as damages alleged to have been caused by an automobile driven by the
defendant. From a judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12,
1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in
question the plaintiff was riding on his pony over said bridge. Before he had gotten half way
across, the defendant approached from the opposite direction in an automobile, going at the
rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a
horseman on it and blew his horn to give warning of his approach. He continued his course
and after he had taken the bridge he gave two more successive blasts, as it appeared to him
that the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However,
being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled
the pony closely up against the railing on the right side of the bridge instead of going to the
left. He says that the reason he did this was that he thought he did not have sufficient time to
get over to the other side. The bridge is shown to have a length of about 75 meters and a
width of 4.80 meters. As the automobile approached, the defendant guided it toward his left,
that being the proper side of the road for the machine. In so doing the defendant assumed
that the horseman would move to the other side. The pony had not as yet exhibited fright,
and the rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet some distance away
or slowing down, continued to approach directly toward the horse without diminution of
speed. When he had gotten quite near, there being then no possibility of the horse getting
across to the other side, the defendant quickly turned his car sufficiently to the right to
escape hitting the horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and
turned its body across the bridge with its head toward the railing. In so doing, it as struck on
the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell
and its rider was thrown off with some violence. From the evidence adduced in the case we
believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one half meters. As
a result of its injuries the horse died. The plaintiff received contusions which caused
temporary unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car
in the manner above described was guilty of negligence such as gives rise to a civil obligation
to repair the damage done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse and the rider would pass
over to the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in front of the moving vehicle.
In the nature of things this change of situation occurred while the automobile was yet some
distance away; and from this moment it was not longer within the power of the plaintiff to
escape being run down by going to a place of greater safety. The control of the situation had
then passed entirely to the defendant; and it was his duty either to bring his car to an
immediate stop or, seeing that there were no other persons on the bridge, to take the other
side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of
doing this, the defendant ran straight on until he was almost upon the horse. He was, we
think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in
view of the known nature of horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get exited and jump under the
conditions which here confronted him. When the defendant exposed the horse and rider to
this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated
as follows: Did the defendant in doing the alleged negligent act use that 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 speculations 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 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 conduct or guarding
against its consequences.
Applying this test to the conduct of the defendant in the present case we think that
negligence is clearly established. A prudent man, placed in the position of the defendant,
would in our opinion, have recognized that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior
negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should
perhaps be mentioned in this connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise have been assessed
wholly against the other party. The defendant company had there employed the plaintiff, as
a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's
yards located not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the
moment of the accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was liable to the
plaintiff by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in
an omission only. The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage, we do not feel constrained
to attempt to weigh the negligence of the respective parties in order to apportion the
damage according to the degree of their relative fault. It is enough to say that the negligence
of the defendant was in this case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this connection it appears that soon after
the accident in question occurred, the plaintiff caused criminal proceedings to be instituted
before a justice of the peace charging the defendant with the infliction of serious injuries
(lesiones graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of the
defendant at the trial upon the merits in a criminal prosecution for the offense mentioned
would be res adjudicata upon the question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an opinion -- the action of the justice of the
peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed,
and judgment is her rendered that the plaintiff recover of the defendant the sum of two
hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or otherwise of such
character as not to be recoverable. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the
sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for
the death of their son Dominador Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but
avers that his death was caused by his own negligence or by unavoidable accident.
Defendant also avers that it had exercised due diligence in the selection of, and supervision
over, its employees and that it had observed the diligence required by law under the
circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the
complaint without pronouncement as to costs. Plaintiffs took the case on appeal directly to
this Court because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters,
Diliman, Quezon City, to which people are invited and for which a nominal fee of P0.50 for
adults and P0.20 for children is charged. The main pool it between two small pools of oval
shape known as the "Wading pool" and the "Beginners Pool." There are diving boards in the
big pools and the depths of the water at different parts are indicated by appropriate marks
on the wall. The care and supervision of the pools and the users thereof is entrusted to a
recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and
six lifeguards who had taken the life-saving course given by the Philippine Red Cross at the
YMCA in Manila. For the safety of its patrons, defendant has provided the pools with a ring
buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector
who is in charge of a clinic established for the benefit of the patrons. Defendant has also on
display in a conspicuous place certain rules and regulations governing the use of the pools,
one of which prohibits the swimming in the pool alone or without any attendant. Although
defendant does not maintain a full-time physician in the swimming pool compound, it has
however a nurse and a sanitary inspector ready to administer injections or operate the
oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high
school student and boy scout, and his brothers Ruben and Eusebio, went to defendant's
swimming pools. This was not the first time that the three brothers had gone to said
natatorium for they had already been there four or five times before. They arrived at the
natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately
went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador
Ong told his brothers that he was going to the locker room in an adjoining building to drink a
bottle of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving
Dominador in the small pool and so they did not see the latter when he left the pool to get a
bottle of coke. In that afternoon, there were two lifeguards on duty in the pool compound,
namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from 8:00 to
12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to
11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were
about twenty bathers inside the pool area and Manuel Abao was going around the pools to
observe the bathers in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the
name of Andres Hagad, Jr., that somebody was swimming under water for quite a long time.
Another boy informed lifeguard Manuel Abao of the same happening and Abao
immediately jumped into the big swimming pool and retrieved the apparently lifeless body of
Dominador Ong from the bottom. The body was placed at the edge of the pool and Abao
immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came
to render assistance, followed by sanitary inspector Iluminado Vicente who, after being
called by phone from the clinic by one of the security guards, boarded a jeep carrying with
him the resuscitator and a medicine kit, and upon arriving he injected the boy with
camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from
the University of the Philippines. Meanwhile, Abao continued the artificial manual
respiration, and when this failed to revive him, they applied the resuscitator until the two
oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another
resuscitator, but the same became of no use because he found the boy already dead. The
doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police
Department of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr.
gave written statements. On the following day, July 6, 1952, an autopsy was performed by
Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation,
who found in the body of the deceased the following: an abrasion on the right elbow lateral
aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a
congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the
face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood
in the heart; congestion in the visceral organs, and brownish fluid in the stomach. The death
was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be
attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to
recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil
Code. The first article provides that "whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damages done." Such fault or
negligence is called quasi-delict. Under the second article, this obligation is demandable not
only for one's own acts or omissions but also for those of persons for whom one is
responsible. In addition, we may quote the following authorities cited in the decision of the
trial court:
"The rule is well settled that the owners of resorts to which people generally are
expressly or by implication invited are legally bound to exercise ordinary care and
prudence in the management and maintenance of such resorts, to the end of
making them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86,
83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting
from lack of ordinary care in providing for his safety, without the fault of the
patron, he is not, however, in any sense deemed to be the insurer of the safety of
patrons. And the death of a patron within his premises does not cast upon him the
burden of excusing himself from any presumption of negligence" (Bertalot vs.
Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119
Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could be no
recovery for the death by drowning of a fifteen-year boy in defendant's
natatorium, where it appeared merely that he was lastly seen alive in water at the
shallow end of the pool, and some ten or fifteen minutes later was discovered
unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to
resuscitate him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to
be observed is that the person claiming damages has the burden of proving that the damage
is caused by the fault or negligence of the person from whom the damage is claimed, or of
one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil.,
517). The question then that arises is: Have appellants established by sufficient evidence the
existence of fault or negligence on the part of appellee so as to render it liable for damages
for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the
necessary precaution to protect the lives of its patrons by not placing at the swimming pools
efficient and competent employees who may render help at a moment's notice, and they
ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong
was drowning was not available or was attending to something else with the result that his
help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr.
and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning
person in the bottom of the big swimming pool and shouted to the lifeguard for help,
lifeguard Manuel Abao did not immediately respond to the alarm and it was only upon the
third call that he threw away the magazine he was reading and allowed three or four minutes
to elapse before retrieving the body from the water. This negligence of Abao, they contend,
is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abao,
but is belied by the written statements given by them in the investigation conducted by the
Police Department of Quezon City approximately three hours after the happening of the
accident. Thus, these two boys admitted in the investigation that they narrated in their
statements everything they knew of the accident, but, as found by the trial, nowhere in said
statements do they state that the lifeguard was chatting with the security guard at the gate
of the swimming pool or was reading a comic magazine when the alarm was given for which
reason he failed to immediately respond to the alarm. On the contrary, what Ruben Ong
particularly emphasized therein was that after the lifeguard heard the shouts for help, the
latter immediately dived into the pool to retrieve the person under water who turned out to
be his brother. For this reason, the trial court made this conclusion: "The testimony of Ruben
Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to immediately
respond to their callmay therefore be disregarded because they are belied by their written
statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause
their death. Thus, it has been shown that the swimming pools of appellee are provided with a
ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom
of the pools is painted with black colors so as to insure clear visibility. There is on display in a
conspicuous place within the area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as they had taken a course for that
purpose and were issued certificates of proficiency. These lifeguards work on schedule
prepared by their chief and arranged in such a way as to have two guards at a time on duty
to look after the safety of the bathers. There is a male nurse and a sanitary inspector with a
clinic provided with oxygen resuscitator. And there are security guards who are available
always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of
the pool, the employees of appellee did everything possible to bring him back to life. Thus,
after he was placed at the edge of the pool, lifeguard Abao immediately gave him manual
artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary
inspector Iluminado Vicente who brought with him an oxygen resuscitator. When they found
that the pulse of the boy was abnormal, the inspector immediately injected him with
camphorated oil. When the manual artificial respiration proved ineffective they applied the
oxygen resuscitator until its contents were exhausted. And while all these efforts were being
made, they sent for Dr. Ayuyao from the University of the Philippines who however came
late because upon examining the body he found him to be already dead. All of the foregoing
shows that appellee has done what is humanly possible under the circumstances to restore
life to minor Ong and for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to
be blamed for the unfortunate incident, still appellee may be held liable under the doctrine
of "last clear chance" for the reason that, having the last opportunity to save the victim, it
failed to do so.
We do not see how this doctrine may apply considering that the record does not show how
minor Ong came into the big swimming pool. The only thing the record discloses is that
minor Ong informed his elder brothers that he was going to the locker room to drink a bottle
of coke but that from that time on nobody knew what happened to him until his lifeless body
was retrieved. The doctrine of last clear chance simply means that the negligence of a
claimant does not preclude a recovery for the negligence of defendant where it appears that
the latter, by exercising reasonable care and prudence, might have avoided injurious
consequences to claimant notwithstanding his negligence. Or, "As the doctrine usually is
stated, a person who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the negligence of a third person which
is imputed to his opponent, is considered in law solely responsible for the consequences of
the accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself in the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such case
the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these circumstances, the law is
that a person who has the last clear chance to avoid the impending harm and fails
to do so is chargeable with the consequences, without reference to the prior
negligence of the other party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent
that he went there without any companion in violation of one of the regulations of appellee
as regards the use of the pools, and it appearing that lifeguard Aba__o responded to the call
for help as soon as his attention was called to it and immediately after retrieving the body all
efforts at the disposal of appellee had been put into play in order to bring him back to life, it
is clear that there is no room for the application of the doctrine now invoked by appellants to
impute liability to appellee..
The last clear chance doctrine can never apply where the party charged is required
to act instantaneously, and if the injury cannot be avoided by the application of all
means at hand after the peril is or should have been discovered; at least in cases in
which any previous negligence of the party charged cannot be said to have
contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d
1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find
supported by the evidence: "There is (also) a strong suggestion coming from the expert
evidence presented by both parties that Dominador Ong might have dived where the water
was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the
bottom of the pool, as a consequence of which he was stunned, and which to his drowning.
As a boy scout he must have received instructions in swimming. He knew, or have known
that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the evidence, we
hereby affirm the same, without pronouncement as to costs.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent
Leonardo Dionisio was on his way home he lived in 1214-B Zamora Street, Bangkal, Makati
from a cocktails-and-dinner meeting with his boss, the general manager of a marketing
corporation. During the cocktails phase of the evening, Dionisio had taken "a shot or two" of
liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of
General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and
was proceeding down General Lacuna Street, when his car headlights (in his allegation)
suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford dump
truck looming some 2-1/2 meters away from his car. The dump truck, owned by and
registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on
the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in
the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic.
The dump truck was parked askew (not parallel to the street curb) in such a manner as to
stick out onto the street, partly blocking the way of oncoming traffic. There were no lights
nor any so-called "early warning" reflector devices set anywhere near the dump truck, front
or rear. The dump truck had earlier that evening been driven home by petitioner Armando U.
Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work
scheduled to be carried out early the following morning, Dionisio claimed that he tried to
avoid a collision by swerving his car to the left but it was too late and his car smashed into
the dump truck. As a result of the collision, Dionisio suffered some physical injuries including
some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga
basically claiming that the legal and proximate cause of his injuries was the negligent manner
in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix.
Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio's
injuries was his own recklessness in driving fast at the time of the accident, while under the
influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought
to establish that it had exercised due rare in the selection and supervision of the dump truck
driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and
ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for
hospital bills and the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss
of expected income for plaintiff brought about the accident in
controversy and which is the result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral
damages for the unexpected and sudden withdrawal of plaintiff from his
lifetime career as a marketing man; mental anguish, wounded feeling,
serious anxiety, social humiliation, besmirched reputation, feeling of
economic insecurity, and the untold sorrows and frustration in life
experienced by plaintiff and his family since the accident in controversy
up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as
damages for the wanton disregard of defendants to settle amicably this
case with the plaintiff before the filing of this case in court for a smaller
amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as
and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R.
No. 65476 affirmed the decision of the trial court but modified the award of damages to the
following extent:
1. The award of P15,000.00 as compensatory
damages was reduced to P6,460.71, the latter being
the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected
income was reduced to P100,000.00,basically
because Dionisio had voluntarily resigned his job such
that, in the opinion of the appellate court, his loss of
income "was not solely attributable to the accident in
question;" and
3. The award of P100,000.00 as moral damages was
held by the appellate court as excessive and
unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs remained
untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to
the manner in which the dump truck was parked along General Lacuna Street on the basis of
which both courts drew the inference that there was negligence on the part of Carbonel, the
dump truck driver, and that this negligence was the proximate cause of the accident and
Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised
by Carbonel and Phoenix that the true legal and proximate cause of the accident was not the
way in which the dump truck had been parked but rather the reckless way in which Dionisio
had driven his car that night when he smashed into the dump truck. The Intermediate
Appellate Court in its questioned decision casually conceded that Dionisio was "in some way,
negligent" but apparently failed to see the relevance of Dionisio's negligence and made no
further mention of it. We have examined the record both before the trial court and the
Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could have
and should have made findings of fact relating to the alleged reckless manner in which
Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there
was negligence in the manner in which the dump truck was parked, that negligence was
merely a "passive and static condition" and that private respondent Dionisio's recklessness
constituted an intervening, efficient cause determinative of the accident and the injuries he
sustained. The need to administer substantial justice as between the parties in this case,
without having to remand it back to the trial court after eleven years, compels us to address
directly the contention put forward by the petitioners and to examine for ourselves the
record pertaining to Dionisio's alleged negligence which must bear upon the liability, or
extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private
respondent Dionisio had a curfew pass valid and effective for that eventful night; (b) whether
Dionisio was driving fast or speeding just before the collision with the dump truck; (c)
whether Dionisio had purposely turned off his car's headlights before contact with the dump
truck or whether those headlights accidentally malfunctioned moments before the collision;
and (d) whether Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on
the person of Dionisio immediately after the accident nor was any found in his car. Phoenix's
evidence here consisted of the testimony of Patrolman Cuyno who had taken Dionisio,
unconscious, to the Makati Medical Center for emergency treatment immediately after the
accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined
them along with the contents of pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he
offered the explanation that his family may have misplaced his curfew pass. He also offered a
certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes
of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga,
which was said to have authority to issue curfew passes for Pampanga and Metro Manila.
This certification was to the effect that private respondent Dionisio had a valid curfew pass.
This certification did not, however, specify any pass serial number or date or period of
effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable
to prove possession of a valid curfew pass during the night of the accident and that the
preponderance of evidence shows that he did not have such a pass during that night. The
relevance of possession or non-possession of a curfew pass that night lies in the light it tends
to shed on the other related issues: whether Dionisio was speeding home and whether he
had indeed purposely put out his headlights before the accident, in order to avoid detection
and possibly arrest by the police in the nearby police station for travelling after the onset of
curfew without a valid curfew pass.
On the second issue whether or not Dionisio was speeding home that night both the
trial court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at
the scene of the accident almost immediately after it occurred, the police station where he
was based being barely 200 meters away. Patrolman Cuyno testified that people who had
gathered at the scene of the accident told him that Dionisio's car was "moving fast" and did
not have its headlights on.
2
Dionisio, on the other hand, claimed that he was travelling at a
moderate speed at 30 kilometers per hour and had just crossed the intersection of General
Santos and General Lacuna Streets and had started to accelerate when his headlights failed
just before the collision took place.
3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did
not fag within any of the recognized exceptions to the hearsay rule since the facts he
testified to were not acquired by him through official information and had not been given by
the informants pursuant to any duty to do so. Private respondent's objection fails to take
account of the fact that the testimony of Patrolman Cuyno is admissible not under the official
records exception to the hearsay rule
4
but rather as part of the res gestae.
5
Testimonial
evidence under this exception to the hearsay rule consists of excited utterances made on the
occasion of an occurrence or event sufficiently startling in nature so as to render inoperative
the normal reflective thought processes of the observer and hence made as a spontaneous
reaction to the occurrence or event, and not the result of reflective thought.
6

We think that an automobile speeding down a street and suddenly smashing into a
stationary object in the dead of night is a sufficiently startling event as to evoke spontaneous,
rather than reflective, reactions from observers who happened to be around at that time.
The testimony of Patrolman Cuyno was therefore admissible as part of theres gestae and
should have been considered by the trial court. Clearly, substantial weight should have been
ascribed to such testimony, even though it did not, as it could not, have purported to
describe quantitatively the precise velocity at winch Dionisio was travelling just before
impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just moments before the accident. The Intermediate
Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed
the intersection but was non-committal as to why they did so. It is the petitioners' contention
that Dionisio purposely shut off his headlights even before he reached the intersection so as
not to be detected by the police in the police precinct which he (being a resident in the area)
knew was not far away from the intersection. We believe that the petitioners' theory is a
more credible explanation than that offered by private respondent Dionisio i.e., that he
had his headlights on but that, at the crucial moment, these had in some mysterious if
convenient way malfunctioned and gone off, although he succeeded in switching his lights on
again at "bright" split seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the
accident. The evidence here consisted of the testimony of Patrolman Cuyno to the effect that
private respondent Dionisio smelled of liquor at the time he was taken from his smashed car
and brought to the Makati Medical Center in an unconscious condition.
7
This testimony has
to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two"
of liquor before dinner with his boss that night. We do not believe that this evidence is
sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute
his driving a motor vehicle per se an act of reckless imprudence.
8
There simply is not enough
evidence to show how much liquor he had in fact taken and the effects of that upon his
physical faculties or upon his judgment or mental alertness. We are also aware that "one
shot or two" of hard liquor may affect different people differently.
The conclusion we draw from the factual circumstances outlined above is that private
respondent Dionisio was negligent the night of the accident. He was hurrying home that
night and driving faster than he should have been. Worse, he extinguished his headlights at
or near the intersection of General Lacuna and General Santos Streets and thus did not see
the dump truck that was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court
that the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful
or negligent manner in which the dump truck was parked in other words, the negligence
of petitioner Carbonel. That there was a reasonable relationship between petitioner
Carbonel's negligence on the one hand and the accident and respondent's injuries on the
other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car
with the dump truck was a natural and foreseeable consequence of the truck driver's
negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and
static condition" and that private respondent Dionisio's negligence was an "efficient
intervening cause and that consequently Dionisio's negligence must be regarded as the legal
and proximate cause of the accident rather than the earlier negligence of Carbonel. We note
that the petitioners' arguments are drawn from a reading of some of the older cases in
various jurisdictions in the United States but we are unable to persuade ourselves that these
arguments have any validity for our jurisdiction. We note, firstly, that even in the United
States, the distinctions between "cause" and "condition" which the 'petitioners would have
us adopt have already been "almost entirely discredited." Professors and Keeton make this
quite clear:
Cause and condition. Many courts have sought to distinguish between
the active "cause" of the harm and the existing "conditions" upon which
that cause operated. If the defendant has created only a passive static
condition which made the damage possible, the defendant is said not to
be liable. But so far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in producing
the result it is quite impossible to distinguish between active forces and
passive situations, particularly since, as is invariably the case, the latter
are the result of other active forces which have gone before. The
defendant who spills gasoline about the premises creates a "condition,"
but the act may be culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much to bring about
the fire as the spark; and since that is the very risk which the defendant
has created, the defendant will not escape responsibility. Even the lapse
of a considerable time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the highway may still
be liable to another who fans into it a month afterward. "Cause" and
"condition" still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it has any validity
at all, it must refer to the type of case where the forces set in operation
by the defendant have come to rest in a position of apparent safety, and
some new force intervenes. But even in such cases, it is not the distinction
between "cause" and "condition" which is important but the nature of the
risk and the character of the intervening cause.
9

We believe, secondly, that the truck driver's negligence far from being a "passive and static
condition" was rather an indispensable and efficient cause. The collision between the dump
truck and the private respondent's car would in an probability not have occurred had the
dump truck not been parked askew without any warning lights or reflector devices. The
improper parking of the dump truck created an unreasonable risk of injury for anyone driving
down General Lacuna Street and for having so created this risk, the truck driver must be held
responsible. In our view, Dionisio's negligence, although later in point of time than the truck
driver's negligence and therefore closer to the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an "intervening cause" was no more
than a foreseeable consequent manner which the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a duty to private respondent Dionisio and
others similarly situated not to impose upon them the very risk the truck driver had created.
Dionisio's negligence was not of an independent and overpowering nature as to cut, as it
were, the chain of causation in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from
Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in
ordinary human experience is reasonably to be anticipated or one which
the defendant has reason to anticipate under the particular
circumstances, the defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant may be negligent
only for that reason. Thus one who sets a fire may be required to foresee
that an ordinary, usual and customary wind arising later wig spread it
beyond the defendant's own property, and therefore to take precautions
to prevent that event. The person who leaves the combustible or
explosive material exposed in a public place may foresee the risk of fire
from some independent source. ... In all of these cases there is an
intervening cause combining with the defendant's conduct to produce the
result and in each case the defendant's negligence consists in failure to
protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that
the risk or a substantial and important part of the risk, to which the
defendant has subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope original risk, and
hence of the defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the
usual weather of the vicinity, including all ordinary forces of nature such
as usual wind or rain, or snow or frost or fog or even lightning; that one
who leaves an obstruction on the road or a railroad track should foresee
that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the
foreseeable negligence of others. ... [The standard of reasonable conduct
may require the defendant to protect the plaintiff against 'that occasional
negligence which is one of the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a defendant who blocks the sidewalk
and forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the plaintiff is
run down by a car, even though the car is negligently driven; and one
who parks an automobile on the highway without lights at night is not
relieved of responsibility when another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the
"immediate and proximate cause" of the injury remained the truck driver's "lack of due care"
and that consequently respondent Dionisio may recover damages though such damages are
subject to mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The
theory here of petitioners is that while the petitioner truck driver was negligent, private
respondent Dionisio had the "last clear chance" of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that "last clear chance" must bear his own
injuries alone. The last clear chance doctrine of the common law was imported into our
jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it
has found its way into the Civil Code of the Philippines. The historical function of that
doctrine in the common law was to mitigate the harshness of another common law doctrine
or rule that of contributory negligence. 12 The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's
negligence was relatively minor as compared with the wrongful act or omission of the
defendant. 13 The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who had also been negligent provided that the defendant had the last
clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see
what role, if any, the common law last clear chance doctrine has to play in a jurisdiction
where the common law concept of contributory negligence as an absolute bar to recovery by
the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the
Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted from its
common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction
like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is
to determine whose negligence the plaintiff's or the defendant's was the legal or
proximate cause of the injury. That task is not simply or even primarily an exercise in
chronology or physics, as the petitioners seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in the continuum of time of the plaintiff's
and the defendant's negligent acts or omissions, is only one of the relevant factors that may
be taken into account. Of more fundamental importance are the nature of the negligent act
or omission of each party and the character and gravity of the risks created by such act or
omission for the rest of the community. The petitioners urge that the truck driver (and
therefore his employer) should be absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased diligence which had
become necessary to avoid the peril precisely created by the truck driver's own wrongful act
or omission. To accept this proposition is to come too close to wiping out the fundamental
principle of law that a man must respond for the forseeable consequences of his own
negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of
living in society and to allocate them among the members of society. To accept the
petitioners' pro-position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of
his employer Phoenix16 in supervising its employees properly and adequately. The
respondent appellate court in effect found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The circumstance that Phoenix had
allowed its truck driver to bring the dump truck to his home whenever there was work to be
done early the following morning, when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the dump truck is parked when away from
company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative negligence of
private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the
other hand, 17 we believe that the demands of substantial justice are satisfied by allocating
most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent
appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of
80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable
therefor to the former. The award of exemplary damages and attorney's fees and costs shall
be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from
Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made
by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by reducing the
aggregate amount of compensatory damages, loss of expected income and moral damages
private respondent Dionisio is entitled to by 20% of such amount. Costs against the
petitioners.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:
The Court of First Instance of Manila
1
sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages;
P393.20 representing the difference in fare between first class and tourist class for the
portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from
the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the
costs of suit.
On appeal,
2
the Court of Appeals slightly reduced the amount of refund on Carrascoso's
plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other
respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record",
are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left
Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket
from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class",
but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the
"first class" seat that he was occupying because, in the words of the witness
Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a
"better right" to the seat. When asked to vacate his "first class" seat, the plaintiff,
as was to be expected, refused, and told defendant's Manager that his seat would
be taken over his dead body; a commotion ensued, and, according to said Ernesto
G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when
they found out that Mr. Carrascoso was having a hot discussion with the white man
[manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to
give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane.
3

1. The trust of the relief petitioner now seeks is that we review "all the findings"
4
of
respondent Court of Appeals. Petitioner charges that respondent court failed to make
complete findings of fact on all the issues properly laid before it. We are asked to consider
facts favorable to petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any
court of record without expressing therein clearly and distinctly the facts and the law on
which it is based".
5
This is echoed in the statutory demand that a judgment determining the
merits of the case shall state "clearly and distinctly the facts and the law on which it is
based";
6
and that "Every decision of the Court of Appeals shall contain complete findings of
fact on all issues properly raised before it".
7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack.
8
The
law, however, solely insists that a decision state the "essential ultimate facts" upon which the
court's conclusion is drawn.
9
A court of justice is not hidebound to write in its decision every
bit and piece of evidence
10
presented by one party and the other upon the issues raised.
Neither is it to be burdened with the obligation "to specify in the sentence the facts"which a
party "considered as proved".
11
This is but a part of the mental process from which the Court
draws the essential ultimate facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains
the necessary facts to warrant its conclusions, it is no error for said court to withhold
therefrom "any specific finding of facts with respect to the evidence for the defense".
Because as this Court well observed, "There is no law that so requires".
12
Indeed, "the mere
failure to specify (in the decision) the contentions of the appellant and the reasons for
refusing to believe them is not sufficient to hold the same contrary to the requirements of
the provisions of law and the Constitution". It is in this setting that in Manigque, it was held
that the mere fact that the findings "were based entirely on the evidence for the prosecution
without taking into consideration or even mentioning the appellant's side in the controversy
as shown by his own testimony", would not vitiate the judgment.
13
If the court did not recite
in the decision the testimony of each witness for, or each item of evidence presented by, the
defeated party, it does not mean that the court has overlooked such testimony or such item
of evidence.
14
At any rate, the legal presumptions are that official duty has been regularly
performed, and that all the matters within an issue in a case were laid before the court and
passed upon by it.
15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the
written statement of the ultimate facts as found by the court ... and essential to support the
decision and judgment rendered thereon".
16
They consist of the
court's "conclusions" with respect to the determinative facts in issue".
17
A question of law,
upon the other hand, has been declared as "one which does not call for an examination of
the probative value of the evidence presented by the parties."
18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a
judgment of the Court of Appeals.
19
That judgment is conclusive as to the facts. It is not
appropriately the business of this Court to alter the facts or to review the questions of fact.
20

With these guideposts, we now face the problem of whether the findings of fact of the Court
of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner
a first class ticket. But petitioner asserts that said ticket did not represent the true and
complete intent and agreement of the parties; that said respondent knew that he did not
have confirmed reservations for first class on any specific flight, although he had tourist class
protection; that, accordingly, the issuance of a first class ticket was no guarantee that he
would have a first class ride, but that such would depend upon the availability of first class
seats.
These are matters which petitioner has thoroughly presented and discussed in its brief
before the Court of Appeals under its third assignment of error, which reads: "The trial court
erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats
on the "definite" segments of his journey, particularly that from Saigon to Beirut".
21

And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class
ticket was no guarantee that the passenger to whom the same had been issued,
would be accommodated in the first-class compartment, for as in the case of
plaintiff he had yet to make arrangements upon arrival at every station for the
necessary first-class reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant airplane company could
have the indiscretion to give out tickets it never meant to honor at all. It received
the corresponding amount in payment of first-class tickets and yet it allowed the
passenger to be at the mercy of its employees. It is more in keeping with the
ordinary course of business that the company should know whether or riot the
tickets it issues are to be honored or not.
22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no
question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C"
and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and
testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK
mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
x x x x x x x x x
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael
Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the
ticket was subject to confirmation in Hongkong. The court cannot give credit to the
testimony of said witnesses. Oral evidence cannot prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses,
and clearly show that the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that
the reservation for a "first class" accommodation for the plaintiff was confirmed. The court
cannot believe that after such confirmation defendant had a verbal understanding with
plaintiff that the "first class" ticket issued to him by defendant would be subject to
confirmation in Hongkong.
23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in
the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was
affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment
of affirmance has merged the judgment of the lower court.
24
Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error and all
questions that might have been raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded as free from all error".
25
We
reached this policy construction because nothing in the decision of the Court of Appeals on
this point would suggest that its findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different
from those which were made the basis of the conclusions of the trial court.
26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an
air passenger is placed in the hollow of the hands of an airline. What security then can a
passenger have? It will always be an easy matter for an airline aided by its employees, to
strike out the very stipulations in the ticket, and say that there was a verbal agreement to the
contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously
unreliable. If only to achieve stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused
to believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first
class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon
to Beirut leg of the flight.
27
We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner.
28
Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue".
29
And this because, as petitioner states, Carrascoso went to see the
Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told
again to see the Manager".
30
Why, then, was he allowed to take a first class seat in the plane
at Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim
is that Carrascoso's action is planted upon breach of contract; that to authorize an award for
moral damages there must be an averment of fraud or bad faith;
31
and that the decision of
the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the
complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air
Lines for a valuable consideration, the latter acting as general agents for and in
behalf of the defendant, under which said contract, plaintiff was entitled to, as
defendant agreed to furnish plaintiff, First Class passage on defendant's plane
during the entire duration of plaintiff's tour of Europe with Hongkong as starting
point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from
Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation
but only after protestations, arguments and/or insistence were made by the
plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished
plaintiff only TouristClass accommodations from Bangkok to Teheran and/or
Casablanca, ... the plaintiff has been compelled by defendant's employees to leave
the First Class accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a
Pan American World Airways plane on his return trip from Madrid to Manila.
32

x x x x x x x x x
2. That likewise, as a result of defendant's failure to furnish First Class accommodations
aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and
the like injury, resulting in moral damages in the amount of P30,000.00.
33

x x x x x x x x x
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second,
That said contract was breached when petitioner failed to furnish first class transportation at
Bangkok; and Third, that there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after he was already, seated" and to
take a seat in the tourist class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him mental anguish, serious anxiety,
wounded feelings and social humiliation, resulting in moral damages. It is true that there is
no specific mention of the term bad faith in the complaint. But, the inference of bad faith is
there, it may be drawn from the facts and circumstances set forth therein.
34
The contract
was averred to establish the relation between the parties. But the stress of the action is put
on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel
placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the
plane in Bangkok, Carrascoso was oustedby petitioner's manager who gave his seat to a
white man;
35
and (b) evidence of bad faith in the fulfillment of the contract was presented
without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to justify an award for moral
damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment
thereof to conform to the evidence is not even required.
36
On the question of bad faith, the
Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the
plane belonging to the defendant Air France while at Bangkok, and was transferred
to the tourist class not only without his consent but against his will, has been
sufficiently established by plaintiff in his testimony before the court, corroborated
by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-
passenger. The captain of the plane who was asked by the manager of defendant
company at Bangkok to intervene even refused to do so. It is noteworthy that no
one on behalf of defendant ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to present its manager at Bangkok
to testify at the trial of the case, or yet to secure his disposition; but defendant did
neither.
37

The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the
white man. Hence, if the employees of the defendant at Bangkok sold a first-class
ticket to him when all the seats had already been taken, surely the plaintiff should
not have been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the more drastic step
of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are
strengthened in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked to explain the
meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the
space is confirmed for first class. Likewise, Zenaida Faustino, another witness for
defendant, who was the chief of the Reservation Office of defendant, testified as
follows:
"Q How does the person in the ticket-issuing office know what
reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247,
June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this
point:
Why did the, using the words of witness Ernesto G. Cuento, "white man"
have a "better right" to the seat occupied by Mr. Carrascoso? The record
is silent. The defendant airline did not prove "any better", nay, any right
on the part of the "white man" to the "First class" seat that the plaintiff
was occupying and for which he paid and was issued a corresponding
"first class" ticket.
If there was a justified reason for the action of the defendant's Manager
in Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do
so; the presumption is that evidence willfully suppressed would be
adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the
circumstances, the Court is constrained to find, as it does find, that the
Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give
up his "first class" seat because the said Manager wanted to
accommodate, using the words of the witness Ernesto G. Cuento, the
"white man".
38

It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the recital
of facts therein points to bad faith? The manager not only prevented Carrascoso
from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he
forcibly ejected him from his seat, made him suffer the humiliation of having to go
to the tourist class compartment - just to give way to another passenger whose
right thereto has not been established. Certainly, this is bad faith. Unless, of course,
bad faith has assumed a meaning different from what is understood in law. For,
"bad faith" contemplates a "state of mind affirmatively operating with furtive
design or with some motive of self-interest or will or for ulterior purpose."
39

And if the foregoing were not yet sufficient, there is the express finding of bad
faith in the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the extent
of threatening the plaintiff in the presence of many passengers to have
him thrown out of the airplane to give the "first class" seat that he was
occupying to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to accommodate,
and the defendant has not proven that this "white man" had any "better
right" to occupy the "first class" seat that the plaintiff was occupying,
duly paid for, and for which the corresponding "first class" ticket was
issued by the defendant to him.
40

5. The responsibility of an employer for the tortious act of its employees need not be
essayed. It is well settled in law.
41
For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall compensate the latter for
the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable.
42

6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation.
43
And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air carriage, therefore, generates a
relation attended with a public duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled
to be protected against personal misconduct, injurious language, indignities and abuses from
such employees. So it is, that any rule or discourteous conduct on the part of employees
towards a passenger gives the latter an action for damages against the carrier.
44

Thus, "Where a steamship company
45
had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to
falsely notify her that the check was worthless and demand payment under threat of
ejection, though the language used was not insulting and she was not ejected."
46
And this,
because, although the relation of passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may be also a tort".
47
And in another
case, "Where a passenger on a railroad train, when the conductor came to collect his fare
tendered him the cash fare to a point where the train was scheduled not to stop, and told
him that as soon as the train reached such point he would pay the cash fare from that point
to destination, there was nothing in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling him a lunatic,"
48
and the Supreme
Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation
of public duty by the petitioner air carrier a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already that was already in the trip I could not help it. So one
of the flight attendants approached me and requested from me my ticket and I
said, What for? and she said, "We will note that you transferred to the tourist
class". I said, "Nothing of that kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything there because I am protesting
to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have
enough leg room, I stood up and I went to the pantry that was next to me and the
purser was there. He told me, "I have recorded the incident in my notebook." He
read it and translated it to me because it was recorded in French "First class
passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best
evidence would be the notes. Your Honor.
COURT
I will allow that as part of his testimony.
49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in
his notebook reading "First class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's
testimony above] which is incompetent. We do not think so. The subject of inquiry is not the
entry, but the ouster incident. Testimony on the entry does not come within the proscription
of the best evidence rule. Such testimony is admissible.
49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the
impact of the startling occurrence was still fresh and continued to be felt. The excitement
had not as yet died down. Statements then, in this environment, are admissible as part of
the res gestae.
50
For, they grow "out of the nervous excitement and mental and physical
condition of the declarant".
51
The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster incident. Its
trustworthiness has been guaranteed.
52
It thus escapes the operation of the hearsay rule. It
forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner.
It would have been an easy matter for petitioner to have contradicted Carrascoso's
testimony. If it were really true that no such entry was made, the deposition of the purser
could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages in contracts and quasi- contracts. The only condition is that defendant
should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner."
53
The manner of ejectment of respondent Carrascoso from his first class seat fits
into this legal precept. And this, in addition to moral damages.
54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt
that it is but just and equitable that attorneys' fees be given.
55
We do not intend to break
faith with the tradition that discretion well exercised as it was here should not be
disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court.
56
The Court of Appeals did not interfere with the same. The dictates of good sense
suggest that we give our imprimatur thereto. Because, the facts and circumstances point to
the reasonableness thereof.
57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 74387-90 November 14, 1988
BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE PAMFILO, THE HEIRS OF
NORMA NERI, and BAYLON SALES and NENA VDA. DE ROSALES, respondents.
Sibal, Custodia, Santos & Nofuente for petitioners.
Restituto L. Opis for respondents Pamfilos and Rosaleses.
Citizens Legal Assistance Office for N. Neri and Baylon Sales.

PARAS, J.:
Before Us is a Petition to Review by Certiorari, the decision
1
of the respondent appellate
court which affirmed with modification the joint decision of the trial court in four (4) cases
involving similar facts and issues, finding favorably for the plaintiffs (private respondents
herein), the dispositive portion of said appellate judgment reading as follows:
WHEREFORE, with the modification that the death indemnity is raised to
P30,000.00 to each set of the victims' heirs, the rest of the judgment
appealed from is hereby affirmed in toto. Costs against the defendants-
appellants.
SO ORDERED. (p. 20, Rollo)
From the records of the case We have gathered the following antecedent facts:
The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company (BLTB, for
brevity) driven by Armando Pon and Bus No. 404 of Superlines Transportation Company
(Superlines, for brevity) driven by Ruben Dasco took place at the highway traversing
Barangay Isabong, Tayabas, Quezon in the afternoon of August 11, 1978, which collision
resulted in the death of Aniceto Rosales, Francisco Pamfilo and Romeo Neri and in several
injuries to Nena Rosales (wife of Anecito) and Baylon Sales, all passengers of the BLTB Bus
No. 1046. The evidence shows that as BLTB Bus No. 1046 was negotiating the bend of the
highway, it tried to overtake a Ford Fiera car just as Bus No. 404 of Superlines was coming
from the opposite direction. Seeing thus, Armando Pon (driver of the BLTB Bus) made a
belated attempt to slacken the speed of his bus and tried to return to his proper lane. It was
an unsuccessful try as the two (2) buses collided with each other.
Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased Francisco
Pamfilo, Aniceto Rosales and Romeo Neri instituted separate cases in the Court of First
Instance of Marinduque against BLTB and Superlines together with their respective drivers
praying for damages, attorney's fees and litigation expenses plus costs. Criminal cases against
the drivers of the two buses were filed in the Court of First Instance of Quezon.
Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied liability
by claiming that they exercised due care and diligence and shifted the fault, against each
other. They all interposed counterclaims against the plaintiffs and crossclaims against each
other.
After trial on the merits, the lower court exonerated defendants Superlines and its driver
Dasco from liability and attributed sole responsibility to defendants BLTB and its driver Pon,
and ordered them jointly and severally to pay damages to the plaintiffs. Defendants BLTB and
Armando Pon appealed from the decision of the lower court to respondent appellate court
which affirmed with modification the judgment of the lower court as earlier stated.
Hence, this petition to review by certiorari of defendant BLTB assigning a lone error, to wit:
THE INTERMEDIATE APPELLATE COURT ERRED IN ADJUDGING THAT THE
ACTIONS OF PRIVATE RESPONDENTS ARE BASED ON CULPA
CONTRACTUAL. (p. 12, Rollo)
It is argued by petitioners that if the intention of private respondents were to file an action
based on culpa contractual or breach of contract of carriage, they could have done so by
merely impleading BLTB and its driver Pon. As it was in the trial court, private respondents
filed an action against all the defendants basing their action on culpa aquiliana or tort.
Petitioners' contentions deserve no merit. A reading of the respondent court's decision
shows that it anchored petitioners' liability both on culpa contractual and culpa aquiliana, to
wit:
The proximate cause of the collision resulting in the death of three and
injuries to two of the passengers of BLTB was the negligence of the driver
of the BLTB bus, who recklessly operated and drove said bus by
overtaking a Ford Fiera car as he was negotiating the ascending bend of
the highway (tsn, October 4, 1979, pp. 9-10, 35, 36, 61; Exhibit 6
Superlines, p. 47) which was divided into two lanes by a continuous
yellow strip (tsn, October 4, 1979, p. 36). The driver of the BLTB bus
admitted in his cross-examination that the continuous yellow line on the
ascending bend of the highway signifies a no-overtaking zone (tsn,
October 4, 1979, p. 36). It is no surprise then that the driver of the
Superlines bus was exonerated by the lower court. He had a valid reason
to presuppose that no one would overtake in such a dangerous situation.
These facts show that patient imprudence of the BLTB driver.
It is well settled that a driver abandoning his proper lane for the purpose
of overtaking another vehicle in ordinary situation has the duty to see
that the road is clear and not to proceed if he can not do so in safety
(People v. Enriquez, 40 O.G. No. 5, 984).
... Before attempting to pass the vehicle ahead, the rear driver must see
that the road is clear and if there is no sufficient room for a safe passage,
or the driver ahead does not turn out so as to afford opportunity to pass,
or if, after attempting to pass, the driver of the overtaking vehicle finds
that he cannot make the passage in safety, the latter must slacken his
speed so as to avoid the danger of a collision, even bringing his car to a
stop if necessary. (3-4 Huddy Encyclopedia of Automobile Law, Sec. 212,
p. 195).
The above rule becomes more particularly applicable in this case when
the overtaking took place on an ascending curved highway divided into
two lanes by a continuous yellow line. Appellant Pon should have
remembered that:
When a motor vehicle is approaching or rounding a curve there is special
necessity for keeping to the right side of the road and the driver has not
the right to drive on the left hand side relying upon having time to turn to
the right if a car is approaching from the opposite direction comes into
view. (42 C.J. 42 906).
Unless there is proof to the contrary, it is presumed that a person driving
a motor vehicle has been negligent if at the time of the mishap, he was
violating any traffic regulation. (Art. 2165, Civil Code).
In failing to observe these simple precautions, BLTB's driver undoubtedly
failed to act with the diligence demanded by the circumstances.
We now come to the subject of liability of the appellants.
For his own negligence in recklessly driving the truck owned by his
employer, appellant Armando Pon is primarily liable (Article 2176, Civil
Code).<re||an1w>
On the other hand the liability of Pon's employer, appellant BLTB, is also
primary, direct and immediate in view of the fact that the death of or
injuries to its passengers was through the negligence of its employee
(Marahan v. Mendoza, 24 SCRA 888, 894), and such liability does not
cease even upon proof that BLTB had exercised all the diligence of a good
father of a family in the selection and supervision of its employees
(Article 1759, Civil Code).
The common carrier's liability for the death of or injuries to its passengers
is based on its contractual obligation to carry its passengers safely to
their destination. That obligation is so serious that the Civil Code requires
"utmost diligence of very cautious person (Article 1755, Civil Code). They
are presumed to have been at fault or to have acted negligently unless
they prove that they have observed extraordinary diligence" (Article
1756, Civil Code). In the present case, the appellants have failed to prove
extraordinary diligence. Indeed, this legal presumption was confirmed by
the fact that the bus driver of BLTB was negligent. It must follow that
both the driver and the owner must answer for injuries or death to its
passengers.
The liability of BLTB is also solidarily with its driver (Viluan v. Court of
Appeals, 16 SCRA 742, 747) even though the liability of the driver springs
from quasi delict while that of the bus company from contract. (pp. 17-
19, Rollo)
Conclusively therefore in consideration of the foregoing findings of the respondent appellate
court it is settled that the proximate cause of the collision resulting in the death of three and
injuries to two of the passengers of BLTB was the sole negligence of the driver of the BLTB
Bus, who recklessly operated and drove said bus in a lane where overtaking is not allowed by
Traffic Rules and Regulations. Such negligence and recklessness is binding against petitioner
BLTB, more so when We consider the fact that in an action based on a contract of carriage,
the court need not make an express finding of fault or negligence on the part of the carrier in
order to hold it responsible for the payment of the damages sought by the passenger. By the
contract of carriage, the carrier BLTB assumed the express obligation to transport the
passengers to their destination safely and to observe extraordinary diligence with a due
regard for all the circumstances, and any injury that might be suffered by its passengers is
right away attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code).
Petitioners also contend that "a common carrier is not an absolute insurer against all risks of
travel and are not liable for acts or accidents which cannot be foreseen or inevitable and that
responsibility of a common carrier for the safety of its passenger prescribed in Articles 1733
and 1755 of the New Civil Code is not susceptible of a precise and definite formulation." (p.
13, Rollo) Petitioners' contention holds no water because they had totally failed to point out
any factual basis for their defense of force majeure in the light of the undisputed fact that the
cause of the collision was the sole negligence and recklessness of petitioner Armando Pon.
For the defense offorce majeure or act of God to prosper the accident must be due to natural
causes and exclusively without human intervention.
WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-35095 August 31, 1973
GERMAN C. GARCIA, LUMINOSA L. GARCIA, and ESTER FRANCISCO, petitioners,
vs.
THE HONORABLE MARIANO M. FLORIDO OF THE COURT OF FIRST INSTANCE OF MISAMIS
OCCIDENTAL, MARCELINO INESIN, RICARDO VAYSON, MACTAN TRANSIT CO., INC., and
PEDRO TUMALA Y DIGAL,respondents.
Paulino A. Conol for petitioners.
Dominador M. Canastra and Wilfredo C. Martinez for private respondents.
Hon. Mariano M. Florido for and in his own behalf.

ANTONIO, J.:
Appeal by certiorari from the decision of the Court of First Instance of Misamis Occidental,
Branch III, in Civil Case No. 2850 (German C. Garcia, et al. vs. Marcelino Inesin et al.) dated
October 21, 1971, dismissing petitioners' action for damages against respondents, Mactan
Transit Co., Inc. and Pedro Tumala "without prejudice to refiling the said civil action after
conviction of the defendants in the criminal case filed by the Chief of Police of Sindangan
Zamboanga del Norte", and from the order of said Court dated January 21, 1972, denying
petitioners' motion for reconsideration.
On August 4, 1971, petitioners, German C. Garcia, Chief of the Misamis Occidental Hospital,
together with his wife, Luminosa L. Garcia, and Ester Francisco, bookkeeper of said hospital,
hired and boarded a PU car with plate No. 241-8 G Ozamis 71 owned and operated by
respondent, Marcelino Inesin, and driven by respondent, Ricardo Vayson, for a round-trip
from Oroquieta City to Zamboanga City, for the purpose of attending a conference of chiefs
of government hospitals, hospital administrative officers, and bookkeepers of Regional
Health Office No. 7 at Zamboanga City. At about 9:30 a.m., while the PU car was negotiating
a slight curve on the national highway at kilometer 21 in Barrio Guisukan, Sindangan,
Zamboanga del Norte, said car collided with an oncoming passenger bus (No. 25) with plate
No. 77-4 W Z.N. 71 owned and operated by the Mactan Transit Co., Inc. and driven by
defendant, Pedro Tumala. As a result of the aforesaid collision, petitioners sustained various
physical injuries which necessitated their medical treatment and hospitalization.
Alleging that both drivers of the PU car and the passenger bus were at the time of the
accident driving their respective vehicles at a fast clip, in a reckless, grossly negligent and
imprudent manner in gross violation of traffic rules and without due regard to the safety of
the passengers aboard the PU car, petitioners, German C. Garcia, Luminosa L. Garcia, and
Ester Francisco, filed on September 1, 1971 with respondent Court of First Instance of
Misamis Occidental an action for damages (Civil Case No. 2850) against the private
respondents, owners and drivers, respectively, of the PU car and the passenger bus that
figured in the collision, with prayer for preliminary attachment.
On September 16, 1971, Marcelino Inesin and Ricardo Vayson filed their answer in the
aforementioned Civil Case No. 2850 admitting the contract of carriage with petitioners but
alleged, by way of defense, that the accident was due to the negligence and reckless
imprudence of the bus driver, as when Ricardo Vayson, driver of the PU car, saw the
oncoming passenger bus No. 25 coming from the opposite direction ascending the incline at
an excessive speed, chasing another passenger bus, he had to stop the PU car in order to give
way to the passenger bus, but, in spite of such precaution, the passenger bus bumped the PU
car, thus causing the accident in question, and, therefore, said private respondents could not
be held liable for the damages caused on petitioners.
On September 29, 1971, respondents, Mactan Transit Co., Inc. and Pedro Tumala, filed a
motion to dismiss on three (3) grounds, namely: 1) that the plaintiffs (petitioners) had no
cause of action; 2) that the complaint carries with it a prayer for attachment but without the
requisite verification, hence defective under the provision of Sec. 3, Rule 57 of the Rules of
Court; and 3) that the defendants (respondents), Mactan Transit Co., Inc. and its driver,
accused Pedro Tumala, had operated said passenger bus with maximum care and prudence.
The principal argument advanced in said motion to dismiss was that the petitioners had no
cause of action for on August 11, 1971, or 20 days before the filing of the present action for
damages, respondent Pedro Tumala was charged in Criminal Case No. 4960 of the Municipal
Court of Sindangan, Zamboanga del Norte, in a complaint filed by the Chief of Police for
"double serious and less serious physical injuries through reckless imprudence", and that,
with the filing of the aforesaid criminal case, no civil action could be filed subsequent thereto
unless the criminal case has been finally adjudicated, pursuant to Sec. 3 of Rule 111 of the
Rules of Court, and, therefore, the filing of the instant civil action is premature, because the
liability of the employer is merely subsidiary and does not arise until after final judgment has
been rendered finding the driver, Pedro Tumala guilty of negligence; that Art. 33 of the New
Civil Code, is not applicable because Art. 33 applied only to the crimes of physical injuries or
homicide, not to the negligent act or imprudence of the driver.
On October 14, 1971, petitioners filed an opposition to said motion to dismiss alleging that
the aforesaid action for damages was instituted not to enforce the civil liability of the
respondents under Art. 100 of the Revised Penal Code but for their civil liability on quasi-
delicts pursuant to Articles 2176-2194, as the same negligent act causing damages may
produce civil liability arising from a crime under the Revised Penal Code or create an action
for quasi-delict or culpa extra-contractual under the Civil Code, and the party seeking
recovery is free to choose which remedy to enforce.
In dismissing the complaint for damages in Civil Case No. 2850, the lower court sustained the
arguments of respondents, Mactan Transit Co., Inc. and Pedro Tumala, and declared that
whether or not "the action for damages is based on criminal negligence or civil negligence
known as culpa aquiliana in the Civil Code or tort under American law" there "should be a
showing that the offended party expressly waived the civil action or reserved his right to
institute it separately" and that "the allegations of the complaint in culpa aquiliana must not
be tainted by any assertion of violation of law or traffic rules or regulations" and because of
the prayer in the complaint asking the Court to declare the defendants jointly and severally
liable for moral, compensatory and exemplary damages, the Court is of the opinion that the
action was not based on "culpa aquiliana or quasi-delict."
Petitioners' motion for reconsideration was denied by the trial court on January 21, 1972,
hence this appeal oncertiorari.
There is no question that from a careful consideration of the allegations contained in the
complaint in Civil Case No. 2850, the essential averments for a quasi-delictual action under
Articles 2176-2194 of the New Civil Code are present, namely: a) act or omission of the
private respondents; b) presence of fault or negligence or the lack of due care in the
operation of the passenger bus No. 25 by respondent Pedro Tumala resulting in the collision
of the bus with the passenger car; c) physical injuries and other damages sustained by
petitioners as a result of the collision; d) existence of direct causal connection between the
damage or prejudice and the fault or negligence of private respondents; and e) the absence
of pre-existing contractual relations between the parties. The circumstance that the
complaint alleged that respondents violated traffic rules in that the driver drove the vehicle
"at a fast clip in a reckless, grossly negligent and imprudent manner in violation of traffic
rules and without due regard to the safety of the passengers aboard the PU car" does not
detract from the nature and character of the action, as one based on culpa aquiliana. The
violation of traffic rules is merely descriptive of the failure of said driver to observe for the
protection of the interests of others, that degree of care, precaution and vigilance which the
circumstances justly demand, which failure resulted in the injury on petitioners. Certainly
excessive speed in violation of traffic rules is a clear indication of negligence. Since the same
negligent act resulted in the filing of the criminal action by the Chief of Police with the
Municipal Court (Criminal Case No. 4960) and the civil action by petitioners, it is inevitable
that the averments on the drivers' negligence in both complaints would substantially be the
same. It should be emphasized that the same negligent act causing damages may produce a
civil liability arising from a crime under Art. 100 of the Revised Penal Code or create an action
for quasi-delict or culpa extra-contractual under Arts. 2176-2194 of the New Civil Code. This
distinction has been amply explained in Barredo vs. Garcia, et al. (73 Phil. 607, 620-621).
1

It is true that under Sec. 2 in relation to Sec. 1 of Rule 111 of the Revised Rules of Court
which became effective on January 1, 1964, in the cases provided for by Articles 31, 33, 39
and 2177 of the Civil Code, an independent civil action entirely separate and distinct from the
civil action, may be instituted by the injured party during the pendency of the criminal case,
provided said party has reserved his right to institute it separately, but it should be noted,
however, that neither Section 1 nor Section 2 of Rule 111 fixes a time limit when such
reservation shall be made. In Tactaquin v. Palileo,
2
where the reservation was made after the
tort-feasor had already pleaded guilty and after the private prosecutor had entered his
appearance jointly with the prosecuting attorney in the course of the criminal proceedings,
and the tort-feasor was convicted and sentenced to pay damages to the offended party by
final judgment in said criminal case, We ruled that such reservation is legally ineffective
because the offended party cannot recover damages twice for the same act or omission of
the defendant. We explained in Meneses vs. Luat
3
that when the criminal action for physical
injuries against the defendant did not proceed to trial as he pleaded guilty upon arraignment
and the Court made no pronouncement on the matter or damages suffered by the injured
party, the mere appearance of private counsel in representation of the offended party in said
criminal case does not constitute such active intervention as could impart an intention to
press a claim for damages in the same action, and, therefore, cannot bar a separate civil
action for damages subsequently instituted on the same ground under Article 33 of the New
Civil Code.
In the case at bar, there is no question that petitioners never intervened in the criminal
action instituted by the Chief of Police against respondent Pedro Tumala, much less has the
said criminal action been terminated either by conviction or acquittal of said accused.
It is, therefore, evident that by the institution of the present civil action for damages,
petitioners have in effect abandoned their right to press recovery for damages in the criminal
case, and have opted instead to recover them in the present civil case.
As a result of this action of petitioners the civil liability of private respondents to the former
has ceased to be involved in the criminal action. Undoubtedly an offended party loses his
right to intervene in the prosecution of a criminal case, not only when he has waived the civil
action or expressly reserved his right to institute, but also when he has actually instituted the
civil action. For by either of such actions his interest in the criminal case has disappeared.
As we have stated at the outset, the same negligent act causing damages may produce a civil
liability arising from crime or create an action for quasi-delict or culpa extra-contractual. The
former is a violation of the criminal law, while the latter is a distinct and independent
negligence, having always had its own foundation and individuality. Some legal writers are of
the view that in accordance with Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for criminal negligence and regardless of
the result of the latter. Hence, "the proviso in Section 2 of Rule 111 with reference to ...
Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles,
for these articles were drafted ... and are intended to constitute as exceptions to the general
rule stated in what is now Section 1 of Rule 111. The proviso which is procedural, may also be
regarded as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the
Civil Code, which do not provide for the reservation required in the proviso."
4
But in
whatever way We view the institution of the civil action for recovery of damages under
quasi-delict by petitioners, whether as one that should be governed by the provisions of
Section 2 of Rule 111 of the Rules which require reservation by the injured party considering
that by the institution of the civil action even before the commencement of the trial of the
criminal case, petitioners have thereby foreclosed their right to intervene therein, or one
where reservation to file the civil action need not be made, for the reason that the law itself
(Article 33 of the Civil Code) already makes the reservation and the failure of the offended
party to do so does not bar him from bringing the action, under the peculiar circumstances of
the case, We find no legal justification for respondent court's order of dismissal.
WHEREFORE, the decision and order appealed from are hereby reversed and set aside, and
the court a quo is directed to proceed with the trial of the case. Costs against private
respondents.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-27760 May 29, 1974
CRISPIN ABELLANA and FRANCISCO ABELLANA, petitioners,
vs.
HONORABLE GERONIMO R. MARAVE, Judge, Court of First Instance of Misamis Occidental,
Branch II; and GERONIMO CAMPANER, MARCELO LAMASON, MARIA GURREA,
PACIENCIOSA FLORES and ESTELITA NEMEN0, respondents.
Prud. V. Villafuerte for petitioners.
Hon. Geronimo R. Marave in his own behalf.

FERNANDO, J.:p
This petition for certiorari is characterized by a rather vigorous insistence on the part of
petitioners Crispin Abellana and Francisco Abellana that an order of respondent Judge was
issued with grave abuse of discretion. It is their contention that he ought to have dismissed
an independent civil action filed in his court, considering that the plaintiffs, as offended
parties, private respondents here,
1
failed to reserve their right to institute it separately in the
City Court of Ozamis City, when the criminal case for physical injuries through reckless
imprudence was commenced. Such a stand of petitioners was sought to be bolstered by a
literal reading of Sections 1 and 2 of Rule 111.
2
It does not take into account, however, the
rule as to a trial de novo found in Section 7 of Rule 123.
3
What is worse, petitioners appear
to be oblivious of the principle that if such an interpretation were to be accorded the
applicable Rules of Court provisions, it would give rise to a grave constitutional question in
view of the constitutional grant of power to this Court to promulgate rules concerning
pleading, practice, and procedure being limited in the sense that they "shall not diminish,
increase, or modify substantive rights."
4
It thus appears clear that the petition
for certiorari is without merit.
The relevant facts were set forth in the petition and admitted in the answer. The dispute had
its origins in a prosecution of petitioner Francisco Abellana of the crime of physical injuries
through reckless imprudence in driving his cargo truck, hitting a motorized pedicab resulting
in injuries to its passengers, namely, private respondents Marcelo Lamason, Maria Gurrea,
Pacienciosa Flores, and Estelita Nemeo. The criminal case was filed with the city court of
Ozamis City, which found the accused Francisco Abellana guilty as charged, damages in favor
of the offended parties likewise being awarded. The accused, now petitioner, Francisco
Abellana appealed such decision to the Court of First Instance.
5
At this stage, the private
respondents as the offended parties filed with another branch of the Court of First Instance
of Misamis Occidental, presided by respondent Judge, a separate and independent civil
action for damages allegedly suffered by them from the reckless driving of the aforesaid
Francisco Abellana.
6
In such complaint, the other petitioner, Crispin Abellana, as the alleged
employer, was included as defendant. Both of them then sought the dismissal of such action
principally on the ground that there was no reservation for the filing thereof in the City Court
of Ozamis. It was argued by them that it was not allowable at the stage where the criminal
case was already on appeal.
7

Respondent Judge was not persuaded. On April 28, 1967, he issued the following order: "This
is a motion to dismiss this case on the ground that in Criminal Case No. OZ-342 which was
decided by the City Court and appealed to this Court, the offended parties failed to expressly
waive the civil action or reserve their right to institute it separately in said City Court, as
required in Section 1, Rule 111, Rules of Court. From the Records of Criminal Case No. OZ-
342, it appears that the City Court convicted the accused. On appeal to this Court, the
judgment of the City Court was vacated and a trial de novo will have to be conducted. This
Court has not as yet begun trying said criminal case. In the meantime, the offended parties
expressly waived in this Court the civil action impliedly instituted with the criminal action,
and reserve their right to institute a separate action as in fact, they did file. The Court is of
the opinion that at this stage, the offended parties may still waive the civil action because the
judgment of the City Court is vacated and a trial de novo will have to be had. In view of this
waiver and reservation, this Court would be precluded from judging civil damages against the
accused and in favor of the offended parties. [Wherefore], the motion to dismiss is hereby
denied. ..."
8
There was a motion for reconsideration which was denied. Hence this petition.
The only basis of petitioners for the imputation that in the issuance of the challenged order
there was a grave abuse of discretion, is their reading of the cited Rules of Court provision to
the effect that upon the institution of a criminal action "the civil action for recovery of civil
liability arising from the offense charge is impliedly instituted with the criminal action, unless
the offended party ...reserves his right to institute it
separately."
9
Such an interpretation, as noted, ignores the de novo aspect of appealed cases
from city courts.
10
It does likewise, as mentioned, give rise to a constitutional question to the
extent that it could yield a meaning to a rule of court that may trench on a substantive right.
Such an interpretation is to be rejected. Certiorari, to repeat, clearly does not lie.
1. In the language of the petition, this is the legal proposition submitted for the consideration
of this Court : "That a separate civil action can be legally filed and allowed by the court only
at the institution, or the right to file such separate civil action reserved or waived, at such
institution of the criminal action, and never on appeal to the next higher court."
11
It admits
of no doubt that an independent civil action was filed by private respondents only at the
stage of appeal. Nor was there any reservation to that effect when the criminal case was
instituted in the city court of Ozamis. Petitioners would then take comfort from the language
of the aforesaid Section 1 of Rule 111 for the unwarranted conclusion that absent such a
reservation, an independent civil action is barred. In the first place, such an inference does
not per searise from the wording of the cited rule. It could be looked upon plausibly as a non-
sequitur. Moreover, it is vitiated by the grievous fault of ignoring what is so explicitly
provided in Section 7 of Rule 123: "An appealed case shall be tried in all respects anew in the
Court of First Instance as if it had been originally instituted in that court."
12
Unlike
petitioners, respondent Judge was duly mindful of such a norm. This Court has made clear
that its observance in appealed criminal cases is mandatory.
13
In a 1962 decision, People v.
Carreon,
14
Justice Barrera, as ponente, could trace such a rule to a 1905 decision, Andres v.
Wolfe.
15
Another case cited by him is Crisostomo v. Director of Prisons,
16
where Justice
Malcolm emphasized how deeply rooted in Anglo-American legal history is such a rule. In the
latest case in point, People v. Jamisola,
17
this Court, through Justice Dizon, reiterated such a
doctrine in these words: "The rule in this jurisdiction is that upon appeal by the defendant
from a judgment of conviction by the municipal court, the appealed decision is vacated and
the appealed case 'shall be tried in all respects anew in the court of first instance as if it had
been originally instituted in that court.'"
18
So it is in civil cases under Section 9 of Rule
40.
19
Again, there is a host of decisions attesting to its observance.
20
It cannot be said then
that there was an error committed by respondent Judge, much less a grave abuse of
discretion, which is indispensable if this petition were to prosper.
2. Nor is the above the only ground for rejecting the contention of petitioners. The restrictive
interpretation they would place on the applicable rule does not only result in its
emasculation but also gives rise to a serious constitutional question. Article 33 of the Civil
Code is quite clear: "In cases of ... physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence."
21
That is a substantive right, not to be frittered away by a
construction that could render it nugatory, if through oversight, the offended parties failed at
the initial stage to seek recovery for damages in a civil suit. As referred to earlier, the grant of
power to this Court, both in the present Constitution and under the 1935 Charter, does not
extend to any diminution, increase or modification of substantive right.
22
It is a well-settled
doctrine that a court is to avoid construing a statute or legal norm in such a manner as would
give rise to a constitutional doubt. Unfortunately, petitioners, unlike respondent Judge,
appeared to lack awareness of the undesirable consequence of their submission. Thus is
discernible another insuperable obstacle to the success of this suit.
3. Nor is this all that needs to be said. It is understandable for any counsel to invoke legal
propositions impressed with a certain degree of plausibility if thereby the interest of his
client would be served. That is though, merely one aspect of the matter. There is this other
consideration. He is not to ignore the basic purpose of a litigation, which is to assure parties
justice according to law. He is not to fall prey, as admonished by Justice Frankfurter, to the
vice of literalness. The law as an instrument of social control will fail in its function if through
an ingenious construction sought to be fastened on a legal norm, particularly a procedural
rule, there is placed an impediment to a litigant being given an opportunity of vindicating an
alleged right.
23
The commitment of this Court to such a primordial objective has been
manifested time and time again.
24

WHEREFORE, this petition for certiorari is dismissed.


EN BANC

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE
COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.

Alex Y. Tan, for Petitioners.

Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.


D E C I S I O N


REGALADO, J.:


One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of
love. A tragic illustration is provided by the instant case, wherein two lovers died while still in
the prime of their years, a bitter episode for those whose lives they have touched. While we
cannot expect to award complete assuagement to their families through seemingly prosaic
legal verbiage, this disposition should at least terminate the acrimony and rancor of an
extended judicial contest resulting from the unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately
initiated by the parties, petitioners are now before us seeking the reversal of the judgment of
respondent court promulgated on January 2, 1985 in AC-G.R. CV No. 69060 with the
following decretal portion:jgc:chanrobles.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiffs complaint is hereby
reversed; and instead, judgment is hereby rendered sentencing defendants, jointly and
solidarily, to pay to plaintiffs the following amounts:chanrobles.com : virtual law library

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorneys fees, P20,000.00, and costs.

However, denial of defendants-appellees counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses are the
legitimate parents of Julie Ann Gotiong who, at the time of the deplorable incident which
took place and from which she died on January 14, 1979, was an 18-year old first year
commerce student of the University of San Carlos, Cebu City; while petitioners are the
parents of Wendell Libi, then a minor between 18 and 19 years of age living with his
aforesaid parents, and who also died in the same event on the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were
sweethearts until December, 1978 when Julie Ann broke up her relationship with Wendell
after she supposedly found him to be sadistic and irresponsible. During the first and second
weeks of January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation
but the latter persisted in her refusal, prompting the former to resort to threats against her.
In order to avoid him, Julie Ann stayed in the house of her best friend, Malou Alfonso, at the
corner of Maria Cristina and Juana Osmea Streets, Cebu City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted
with the same firearm, a Smith and Wesson revolver licensed in the name of petitioner
Cresencio Libi, which was recovered from the scene of the crime inside the residence of
private respondents at the corner of General Maxilom and D. Jakosalem streets of the same
city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of
both minors, their parents, who are the contending parties herein, posited their respective
theories drawn from their interpretation of circumstantial evidence, available reports,
documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell
caused her death by shooting her with the aforesaid firearm and, thereafter, turning the gun
on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise distressed
over the death of their son, rejected the imputation and contended that an unknown third
party, whom Wendell may have displeased or antagonized by reason of his work as a
narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have caused
Wendells death and then shot Julie Ann to eliminate any witness and thereby avoid
identification.chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then
Court of First Instance of Cebu against the parents of Wendell to recover damages arising
from the latters vicarious liability under Article 2180 of the Civil Code. After trial, the court
below rendered judgment on October 20, 1980 as follows:jgc:chanrobles.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs
complaint for insufficiency of the evidence. Defendants counterclaim is likewise denied for
lack of sufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the complaint of
therein plaintiffs-appellants was set aside and another judgment was rendered against
defendants-appellees who, as petitioners in the present appeal by certiorari, now submit for
resolution the following issues in this case:chanrob1es virtual 1aw library

1. Whether or not respondent court correctly reversed the trial court in accordance with
established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent
court to make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of
Cebu, submitted his findings and opinions on some postulates for determining whether or
not the gunshot wound was inflicted on Wendell Libi by his own suicidal act. However, undue
emphasis was placed by the lower court on the absence of gunpowder or tattooing around
the wound at the point of entry of the bullet. It should be emphasized, however, that this is
not the only circumstance to be taken into account in the determination of whether it was
suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of
an explosive discharge in the entrance wound. However, as pointed out by private
respondents, the body of deceased Wendell Libi must have been washed at the funeral
parlor, considering the hasty interment thereof a little after eight (8) hours from the
occurrence wherein he died. Dr. Cerna himself could not categorically state that the body of
Wendell Libi was left untouched at the funeral parlor before he was able to conduct his
autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin test on
Wendell Libi, hence possible evidence of gunpowder residue on Wendells hands was forever
lost when Wendell was hastily buried.cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell
Libi about eight (8) hours after the incident or, to be exact, eight (8) hours and twenty (20)
minutes based on the record of death; that when he arrived at the Cosmopolitan Funeral
Homes, the body of the deceased was already on the autopsy table and in the stage of rigor
mortis; and that said body was not washed, but it was dried. 4 However, on redirect
examination, he admitted that during the 8-hour interval, he never saw the body nor did he
see whether said body was wiped or washed in the area of the wound on the head which he
examined because the deceased was inside the morgue. 5 In fact, on cross-examination, he
had earlier admitted that as far as the entrance of the wound, the trajectory of the bullet and
the exit of the wound are concerned, it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the victim and
that he found no burning or singeing of the hair or extensive laceration on the gunshot
wound of entrance which are general characteristics of contact or near-contact fire. On
direct examination, Dr. Cerna nonetheless made these clarification:jgc:chanrobles.com.ph

"Q Is it not a fact that there are certain guns which are so made that there would be no black
residue or tattooing that could result from these guns because they are what we call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ:chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that
you said may not rule out the possibility that the gun was closer than 24 inches, is that
correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the
singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in your own
sketch, is it not a fact that the gun could have been fired by the person himself, the victim
himself, Wendell Libi, because it shows a point of entry a little above the right ear and point
of exit a little above that, to be very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet is
concerned and as far as the angle or the manner of fire is concerned, it could have been fired
by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the
crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi,
respectively. Also, the sketch prepared by the Medico-Legal Division of the National Bureau
of Investigation, 9 shows that there is only one gunshot wound of entrance located at the
right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna states:chanrob1es
virtual 1aw library
x x x


"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by
0.2 cm., edges inverted, oriented upward, located at the head, temporal region, right, 2.8
cms. behind and 5.5 cms. above right external auditory meatus, directed slightly forward,
upward and to the left, involving skin and soft tissues, making a punch-in fracture on the
temporal bone, right, penetrating cranial cavity, lacerating extensively along its course the
brain tissues, fracturing parietal bone, left, and finally making an EXIT wound, irregular, 2.0 x
1.8 cms., edges (e)verted, parietal region, left, 2.0 cms. behind and 12.9 cms. above left
external auditory meatus.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
x x x


"Evidence of contact or close-contact fire, such as burning around the gunshot wound of
entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or
bursting of the gunshot wound of entrance, or separation of the skin from the underlying
tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record,
thus:jgc:chanrobles.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the
wound, the trajectory of the bullet and the exit of the wound, and measuring yourself 24
inches, will you please indicate to the Honorable Court how would it have been possible for
Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS:chanrob1es virtual 1aw library

A Actually, sir, the 24 inches is approximately one arms length.

ATTY. SENINING:chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his right arm
almost straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies of
defendants witnesses Lydia Ang and James Enrique Tan, the first being a resident of an
apartment across the street from the Gotiongs and the second, a resident of the house
adjacent to the Gotiong residence, who declared having seen a "shadow" of a person at the
gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces
the gas station; that it is the second apartment; that from her window she can see directly
the gate of the Gotiongs and, that there is a firewall between her apartment and the gas
station. 12 After seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans,
she called the police station but the telephone lines were busy. Later on, she talked with
James Enrique Tan and told him that she saw a man leap from the gate towards his rooftop.
13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the
Gotiongs, but denied having talked with anyone regarding what he saw. He explained that he
lives in a duplex house with a garden in front of it; that his house is next to Felipe Gotiongs
house; and he further gave the following answers to these questions:chanrobles.com : virtual
law library

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiongs in relation to your house?

WITNESS:chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS:chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do not
inspire credence as to the reliability and accuracy of the witnesses observations, since the
visual perceptions of both were obstructed by high walls in their respective houses in relation
to the house of herein private respondents. On the other hand, witness Manolo Alfonso,
testifying on rebuttal, attested without contradiction that he and his sister, Malou Alfonso,
were waiting for Julie Ann Gotiong when they heard her scream; that when Manolo climbed
the fence to see what was going on inside the Gotiong house, he heard the first shot; and,
not more than five (5) seconds later, he heard another shot. Consequently, he went down
from the fence and drove to the police station to report the incident. 15 Manolos direct and
candid testimony establishes and explains the fact that it was he whom Lydia Ang and James
Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners effete and unsubstantiated pretension that it was
another man who shot Wendell and Julie Ann. It is significant that the Libi family did not even
point to or present any suspect in the crime nor did they file any case against any alleged
"John Doe." Nor can we sustain the trial courts dubious theory that Wendell Libi did not die
by his own hand because of the overwhelming evidence testimonial, documentary and
pictorial the confluence of which point to Wendell as the assailant of Julie Ann, his motive
being revenge for her rejection of his persistent pleas for a
reconciliation.chanrobles.com:cralaw:red

Petitioners defense that they had exercised the due diligence of a good father of a family,
hence they should not be civilly liable for the crime committed by their minor son, is not
borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi,
owns a gun which he kept in a safety deposit box inside a drawer in their bedroom. Each of
these petitioners holds a key to the safety deposit box and Amelitas key is always in her bag,
all of which facts were known to Wendell. They have never seen their son Wendell taking or
using the gun. She admitted, however, that on that fateful night the gun was no longer in the
safety deposit box. 16 We, accordingly, cannot but entertain serious doubts that petitioner
spouses had really been exercising the diligence of a good father of a family by safely locking
the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to the
safety deposit box was negligently left lying around or he had free access to the bag of his
mother where the other key was.

The diligence of a good father of a family required by law in a parent and child relationship
consists, to a large extent, of the instruction and supervision of the child. Petitioners were
gravely remiss in their duties as parents in not diligently supervising the activities of their
son, despite his minority and immaturity, so much so that it was only at the time of
Wendells death that they allegedly discovered that he was a CANU agent and that
Cresencios gun was missing from the safety deposit box. Both parents were sadly wanting in
their duty and responsibility in monitoring and knowing the activities of their children who,
for all they know, may be engaged in dangerous work such as being drug informers, 17 or
even drug users. Neither was a plausible explanation given for the photograph of Wendell,
with a handwritten dedication to Julie Ann at the back thereof, 18 holding upright what
clearly appears as a revolver and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as
explained at the start of this opinion, respondent court waved aside the protestations of
diligence on the part of petitioners and had this to say:jgc:chanrobles.com.ph

". . . It is still the duty of parents to know the activity of their children who may be engaged in
this dangerous activity involving the menace of drugs. Had the defendants-appellees been
diligent in supervising the activities of their son, Wendell, and in keeping said gun from his
reach, they could have prevented Wendell from killing Julie Ann Gotiong. Therefore,
appellants are liable under Article 2180 of the Civil Code which provides:chanrob1es virtual
1aw library

The father, and in case of his death or incapacity, the mother, are responsible for the
damages caused by their minor children who live in their company.

"Having been grossly negligent in preventing Wendell Libi from having access to said gun
which was allegedly kept in a safety deposit box, defendants-appellees are subsidiarily liable
for the natural consequence of the criminal act of said minor who was living in their
company. This vicarious liability of herein defendants-appellees has been reiterated by the
Supreme Court in many cases, prominent of which is the case of Fuellas v. Cadano, et. al. (L-
14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:chanrob1es virtual 1aw library

The subsidiary liability of parents for damages caused by their minor children imposed by
Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and
criminal offenses.

The subsidiary liability of parents arising from the criminal acts of their minor children who
acted with discernment is determined under the provisions of Article 2180, N.C.C. and under
Article 101 of the Revised Penal Code, because to hold that the former only covers
obligations which arise from quasi-delicts and not obligations which arise from criminal
offenses, would result in the absurdity that while for an act where mere negligence
intervenes the father or mother may stand subsidiarily liable for the damages caused by his
or her son, no liability would attach if the damage is caused with criminal intent. (3 SCRA
361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow
got hold of the key to the drawer where said gun was kept under lock without defendant-
spouses ever knowing that said gun had been missing from that safety box since 1978 when
Wendell Libi had) a picture taken wherein he proudly displayed said gun and dedicated this
picture to his sweetheart, Julie Ann Gotiong; also since then, Wendell Libi was said to have
kept said gun in his car, in keeping up with his supposed role of a CANU agent . . ." chanrobles
lawlibrary : rednad
x x x


"Based on the foregoing discussions of the assigned errors, this Court holds that the lower
court was not correct in dismissing herein plaintiffs-appellants complaint because as
preponderantly shown by evidence, defendants-appellees utterly failed to exercise all the
diligence of a good father of the family in preventing their minor son from committing this
crime by means of the gun of defendants-appellees which was freely accessible to Wendell
Libi for they have not regularly checked whether said gun was still under lock, but learned
that it was missing from the safety deposit box only after the crime had been committed."
(Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable for
the civil liability based on what appears from all indications was a crime committed by their
minor son. We take this opportunity, however, to digress and discuss its ratiocination
therefor on jurisprudential dicta which we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites
Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability of parents
for damages caused by their minor children imposed by Article 2180 of the New Civil Code
covers obligations arising from both quasi-delicts and criminal offenses," followed by an
extended quotation ostensibly from the same case explaining why under Article 2180 of the
Civil Code and Article 101 of the Revised Penal Code parents should assume subsidiary
liability for damages caused by their minor children. The quoted passages are set out two
paragraphs back, with pertinent underscoring for purposes of the discussion
hereunder.chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the
categorization of their liability as being subsidiary, and not primary, in nature requires a hard
second look considering previous decisions of this court on the matter which warrant
comparative analyses. Our concern stems from our readings that if the liability of the parents
for crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither
invoke nor be absolved of civil liability on the defense that they acted with the diligence of a
good father of a family to prevent damages. On the other hand, if such liability imputed to
the parents is considered direct and primary, that diligence would constitute a valid and
substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if we
apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the
persons responsible for the act or omission, in this case the minor and the father and, in case
of his death of incapacity, the mother, are solidarily liable. Accordingly, such parental liability
is primary and not subsidiary, hence the last paragraph of Article 2180 provides that" (t)he
responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damages."cralaw
virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their minor
children is likewise primary, not subsidiary. Article 101 of the Revised Penal Code
provides:jgc:chanrobles.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases.
x x x


First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by
. . . a person under nine years of age, or by one over nine but under fifteen years of age, who
has acted without discernment, shall devolve upon those having such person under their
legal authority or control, unless it appears that there was no fault or negligence on their
part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision
the civil liability of the parents for crimes committed by their minor children is likewise direct
and primary, and also subject to the defense of lack of fault or negligence on their part, that
is, the exercise of the diligence of a good father of a family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is
buttressed by the corresponding provisions in both codes that the minor transgressor shall
be answerable or shall respond with his own property only in the absence or in case of
insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the
Civil Code states that" (i)f the minor causing damage has no parents or guardian, the minor . .
. shall be answerable with his own property in an action against him where a guardian ad
litem shall be appointed." For civil liability ex delicto of minors, an equivalent provision is
found in the third paragraph of Article 101 of the Revised Penal Code, to
wit:jgc:chanrobles.com.ph

"Should there be no person having such . . . minor under his authority, legal guardianship or
control, or if such person be insolvent, said . . . minor shall respond with (his) own property,
excepting property exempt from execution, in accordance with civil law."cralaw virtua1aw
library

The civil liability of parents for felonies committed by their minor children contemplated in
the aforesaid rule in Article 101 of the Revised Penal Code in relation to Article 2180 of the
Civil Code has, aside from the aforecited case of Fuellas, been the subject of a number of
cases adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23
Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et.
Al. 26 Parenthetically, the aforesaid cases were basically on the issue of the civil liability of
parents for crimes committed by their minor children over 9 but under 15 years of age, who
acted with discernment, and also of minors 15 years of aye or over, since these situations are
not covered by Article 101, Revised Penal Code. In both instances, this Court held that the
issue of parental civil liability should be resolved in accordance with the provisions of Article
2180 of the Civil Code for the reasons well expressed in Salen and adopted in the cases
hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply
only to quasi-delicts and not to criminal offenses would result in the absurdity that in an act
involving mere negligence the parents would be liable but not where the damage is caused
with criminal intent. In said cases, however, there are unfortunate variances resulting in a
regrettable inconsistency in the Courts determination of whether the liability of the parents,
in cases involving either crimes or quasi-delicts of their minor children, is primary or
subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through reckless
imprudence, in a separate civil action arising from the crime the minor and his father were
held jointly and severally liable for failure of the latter to prove the diligence of a good father
of a family. The same liability in solidum and, therefore, primary liability was imposed in a
separate civil action in Araneta on the parents and their 14-year old son who was found
guilty of frustrated homicide, but on the authority of Article 2194 of the Civil Code providing
for solidary responsibility of two or more persons who are liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the
conviction of his son, who was over 15 but less than 18 years of age, by applying Article 2180
but, this time, disregarding Article 2194 of the Civil Code. In the present case, as already
explained, the petitioners herein were also held liable but supposedly in line with Fuellas
which purportedly declared the parents subsidiarily liable for the civil liability for serious
physical injuries committed by their 13-year old son. On the other hand, in Paleyan, the
mother and her 19-year old son were adjudged solidarily liable for damages arising from his
conviction for homicide by the application of Article 2180 of the Civil Code since this is
likewise not covered by Article 101 of the Revised Penal Code. Finally, in Elcano, although the
son was acquitted in a homicide charge due to "lack of intent, coupled with mistake," it was
ruled that while under Article 2180 of the Civil Code there should be solidary liability for
damages, since the son, "although married, was living with his father and getting subsistence
from him at the time of the occurrence," but "is now of age, as a matter of equity" the father
was only held subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only
for persons causing damages under the compulsion of irresistible force or under the impulse
of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of establishments;
28 employers, teachers, persons and corporations engaged in industry; 29 and principals,
accomplices and accessories for the unpaid civil liability of their co-accused in the other
classes. 30

Also, coming back to respondent courts reliance on Fuellas in its decision in the present
case, it is not exactly accurate to say that Fuellas provided for subsidiary liability of the
parents therein. A careful scrutiny shows that what respondent court quoted verbatim in its
decision now on appeal in the present case, and which it attributed to Fuellas, was the
syllabus on the law report of said case which spoke of "subsidiary" liability. However, such
categorization does not specifically appear in the text of the decision in Fuellas. In fact, after
reviewing therein the cases of Exconde, Araneta and Salen and the discussions in said cases
of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this
Court concluded its decision in this wise:jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence
submitted therein by both parties, independent of the criminal case. And responsibility for
fault or negligence under Article 2176 upon which the present action was instituted, is
entirely separate and distinct from the civil liability arising from fault or negligence under the
Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated,
any discussion as to the minors criminal responsibility is of no moment."cralaw virtua1aw
library

Under the foregoing considerations, therefore, we hereby rule that the parents are and
should be held primarily liable for the civil liability arising from criminal offenses committed
by their minor children under their legal authority or control, or who live in their company,
unless it is proven that the former acted with the diligence of a good father of a family to
prevent such damages. That primary liability is premised on the provisions of Article 101 of
the Revised Penal Code with respect to damages ex delicto caused by their children 9 years
of age or under, or over 9 but under 15 years of age who acted without discernment; and,
with regard to their children over 9 but under 15 years of age who acted with discernment,
or 15 years or over but under 21 years of age, such primary liability shall be imposed
pursuant to Article 2180 of the Civil Code. 31

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

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

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court
of Appeals is hereby AFFIRMED, with costs against petitioners.