1. Elcano v.
Hill 77 SCRA 98
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito Elcano, deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29,
1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing,
upon motion to dismiss of defendants, the complaint of plaintiffs for recovery of
damages from defendant Reginald Hill, a minor, married at the time of the occurrence,
and his father, the defendant Marvin Hill, with whom he was living and getting
subsistence, for the killing by Reginald of the son of the plaintiffs, named Agapito
Elcano, of which, when criminally prosecuted, the said accused was acquitted on the
ground that his act was not criminal, because of "lack of intent to kill, coupled with
mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1,
Rule 107, which is now Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or
in res-adjudicata;
3. The complaint had no cause of action against defendant Marvin
Hill, because he was relieved as guardian of the other defendant
through emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was
issued:
Considering the motion for reconsideration filed by the defendants
on January 14, 1965 and after thoroughly examining the arguments
therein contained, the Court finds the same to be meritorious and
well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is
hereby reconsidered by ordering the dismissal of the above entitled
case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21,
Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for
Our resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY
UPHOLDING THE CLAIM OF DEFENDANTS THAT -
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE
REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE
111, RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS
NOW FINAL OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194
OF THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT
CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION
AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS
RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT
THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant-
appellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court
of First Instance of Quezon City. After due trial, he was acquitted on the ground that his
act was not criminal because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a copy of the decision of
acquittal, presumably because appellants do not dispute that such indeed was the basis
stated in the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their
son, the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues presented
for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the
criminal case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty.
Hill, notwithstanding the undisputed fact that at the time of the occurrence complained
of. Reginald, though a minor, living with and getting subsistenee from his father, was
already legally married?
The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a source
of obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73
Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation by
Justice Bocobo on the nature of culpa aquiliana in relation to culpa
criminal or delito and mere culpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence of
our own, that the same given act can result in civil liability not only under the Penal
Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act
machinist. come under both the Penal Code and the Civil Code. In
that case, the action of the agent killeth unjustified and fraudulent
and therefore could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued. (pp. 615-616,
73 Phil.). 1
It will be noticed that the defendant in the above case could have
been prosecuted in a criminal case because his negligence causing
the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a
proper subject matter either of a criminal action with its consequent
civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of
the Civil Code. Thus, in this jurisdiction, the separate individuality of
a cuasi-delito or culpa aquiliana, under the Civil Code has been fully
and clearly recognized, even with regard to a negligent act for which
the wrongdoer could have been prosecuted and convicted in a
criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime. (p. 617, 73
Phil.) 2
It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V.
House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable
because of his criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code. (p. 618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should
ordinarily be sufficient to dispose of this case. But inasmuch as we
are announcing doctrines that have been little understood, in the
past, it might not he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only
reckless but also simple negligence. If we were to hold that articles
1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, accordingly to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have very
little scope and application in actual life. Death or injury to persons
and damage to property- through any degree of negligence - even
the slightest - would have to be Idemnified only through the principle
of civil liability arising from a crime. In such a state of affairs, what
sphere would remain for cuasi-delito or culpa aquiliana? We are
loath to impute to the lawmaker any intention to bring about a
situation so absurd and anomalous. Nor are we, in the interpretation
of the laws, disposed to uphold the letter that killeth rather than the
spirit that giveth life. We will not use the literal meaning of the law to
smother and render almost lifeless a principle of such ancient origin
and such full-grown development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles 1902 to 1910 of
the Spanish Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt
beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay
in damages. There are numerous cases of criminal negligence which
can not be shown beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to
1910 of the Civil Code. Otherwise. there would be many instances of
unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73
Phil.)
Fourthly, because of the broad sweep of the provisions of both the
Penal Code and the Civil Code on this subject, which has given rise
to the overlapping or concurrence of spheres already discussed, and
for lack of understanding of the character and efficacy of the action
 for culpa aquiliana, there has grown up a common practice to seek
damages only by virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by invoking articles
1902-1910 of the Civil Code. Although this habitual method is
allowed by, our laws, it has nevertheless rendered practically useless
and nugatory the more expeditious and effective remedy based
on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is
high time we pointed out to the harms done by such practice and to
restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time
we caused the stream of quasi-delict or culpa aquiliana to flow on its
own natural channel, so that its waters may no longer be diverted
into that of a crime under the Penal Code. This will, it is believed,
make for the better safeguarding or private rights because it realtor,
an ancient and additional remedy, and for the further reason that an
independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party
wronged or his counsel, is more likely to secure adequate and
efficacious redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing
excerpts from the opinion in Garcia that the concurrence of the Penal Code and the
Civil Code therein referred to contemplate only acts of negligence and not intentional
voluntary acts - deeper reflection would reveal that the thrust of the pronouncements
therein is not so limited, but that in fact it actually extends to fault or culpa. This can be
seen in the reference made therein to the Sentence of the Supreme Court of Spain of
February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act.
Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervene shall be the subject of Chapter II,
Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an
ultimo construction or interpretation of the letter of the law that "killeth, rather than the
spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the
law to smother and render almost lifeless a principle of such ancient origin and such
full-grown development as culpa aquiliana or quasi-delito, which is conserved and
made enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because
Justice Bacobo was Chairman of the Code Commission that drafted the original text of
the new Civil Code, it is to be noted that the said Code, which was enacted after the
Garcia doctrine, no longer uses the term, 11 not punishable by law," thereby making it
clear that the concept of culpa aquiliana includes acts which are criminal in character
or in violation of the penal law, whether voluntary or matter. Thus, the corresponding
provisions to said Article 1093 in the new code, which is Article 1162, simply says,
"Obligations derived from quasi-delicto shall be governed by the provisions of Chapter
2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new
provision, Article 2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the
defendant.
According to the Code Commission: "The foregoing provision (Article 2177) through at
first sight startling, is not so novel or extraordinary when we consider the exact nature
of criminal and civil negligence. The former is a violation of the criminal law, while the
latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal negligence. Such distinction
between criminal negligence and "culpa extracontractual" or "cuasi-delito" has been
sustained by decision of the Supreme Court of Spain and maintained as clear, sound
and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on
reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double recovery.", (Report of the Code)
Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence,
the same argument of Justice Bacobo about construction that upholds "the spirit that
giveth lift- rather than that which is literal that killeth the intent of the lawmaker should
be observed in applying the same. And considering that the preliminary chapter on
human relations of the new Civil Code definitely establishes the separability and
independence of liability in a civil action for acts criminal in character (under Articles 29
to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised
Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with the spirit of law,
equity and justice, and more in harmony with modern progress"- to borrow the felicitous
relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as
We do hold, that Article 2176, where it refers to "fault or negligencia covers not only
acts "not punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies against the offender in
a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally,
to recover damages on both scores, and would be entitled in such eventuality only to
the bigger award of the two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas
the civil liability for the same act considered as a quasi-delict only and not as a crime is
not estinguished even by a declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused. Briefly stated, We here
hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
action against him.
Coming now to the second issue about the effect of Reginald's emancipation by
marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered
opinion that the conclusion of appellees that Atty. Hill is already free from responsibility
cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child
(Article 327, Civil Code), and under Article 397, emancipation takes place "by the
marriage of the minor (child)", it is, however, also clear that pursuant to Article 399,
emancipation by marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary concession shall terminate parental
authority over the child's person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or encumber real
property without the consent of his father or mother, or guardian. He can sue and be
sued in court only with the assistance of his father, mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for whom one is
responsible. The father and, in case of his death or incapacity, the mother, are
responsible. The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company."
In the instant case, it is not controverted that Reginald, although married, was living
with his father and getting subsistence from him at the time of the occurrence in
question. Factually, therefore, Reginald was still subservient to and dependent on his
father, a situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and
solidary liability of presuncion with their offending child under Article 2180 is that is the
obligation of the parent to supervise their minor children in order to prevent them from
causing damage to third persons. 5 On the other hand, the clear implication of Article
399, in providing that a minor emancipated by marriage may not, nevertheless, sue or
be sued without the assistance of the parents, is that such emancipation does not carry
with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else
invites judicial action. Otherwise stated, the marriage of a minor child does not relieve
the parents of the duty to see to it that the child, while still a minor, does not give
answerable for the borrowings of money and alienation or encumbering of real property
which cannot be done by their minor married child without their consent. (Art. 399;
Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding
the emancipation by marriage of Reginald. However, inasmuch as it is evident that
Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become milling,
subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to
proceed in accordance with the foregoing opinion. Costs against appellees.
 2. Cangco v. Manila Railroad 38 Phil 768
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco,
was in the employment of Manila Railroad Company in the capacity of clerk, with a
monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal,
which is located upon the line of the defendant railroad company; and in coming daily
by train to the company's office in the city of Manila where he worked, he used a pass,
supplied by the company, which entitled him to ride upon the company's trains free of
charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his
seat in the second class-car where he was riding and, making, his exit through the door,
took his position upon the steps of the coach, seizing the upright guardrail with his right
hand for support.
On the side of the train where passengers alight at the San Mateo station there is a
cement platform which begins to rise with a moderate gradient some distance away
from the company's office and extends along in front of said office for a distance
sufficient to cover the length of several coaches. As the train slowed down another
passenger, named Emilio Zuñiga, also an employee of the railroad company, got off
the same car, alighting safely at the point where the platform begins to rise from the
level of the ground. When the train had proceeded a little farther the plaintiff Jose
Cangco stepped off also, but one or both of his feet came in contact with a sack of
watermelons with the result that his feet slipped from under him and he fell violently on
the platform. His body at once rolled from the platform and was drawn under the moving
car, where his right arm was badly crushed and lacerated. It appears that after the
plaintiff alighted from the train the car moved forward possibly six meters before it came
to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad
station was lighted dimly by a single light located some distance away, objects on the
platform where the accident occurred were difficult to discern especially to a person
emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff
alighted is found in the fact that it was the customary season for harvesting these
melons and a large lot had been brought to the station for the shipment to the market.
They were contained in numerous sacks which has been piled on the platform in a row
one upon another. The testimony shows that this row of sacks was so placed of melons
and the edge of platform; and it is clear that the fall of the plaintiff was due to the fact
that his foot alighted upon one of these melons at the moment he stepped upon the
platform. His statement that he failed to see these objects in the darkness is readily to
be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared
that the injuries which he had received were very serious. He was therefore brought at
once to a certain hospital in the city of Manila where an examination was made and his
arm was amputated. The result of this operation was unsatisfactory, and the plaintiff
was then carried to another hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It appears in evidence that
the plaintiff expended the sum of P790.25 in the form of medical and surgical fees and
for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the
city of Manila to recover damages of the defendant company, founding his action upon
the negligence of the servants and employees of the defendant in placing the sacks of
melons upon the platform and leaving them so placed as to be a menace to the security
of passenger alighting from the company's trains. At the hearing in the Court of First
Instance, his Honor, the trial judge, found the facts substantially as above stated, and
drew therefrom his conclusion to the effect that, although negligence was attributable
to the defendant by reason of the fact that the sacks of melons were so placed as to
obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself
had failed to use due caution in alighting from the coach and was therefore precluded
form recovering. Judgment was accordingly entered in favor of the defendant company,
and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of
negligence in piling these sacks on the platform in the manner above stated; that their
presence caused the plaintiff to fall as he alighted from the train; and that they therefore
constituted an effective legal cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is liable for the damage thereby
occasioned unless recovery is barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these conceptions of liability, to-wit,
the primary responsibility of the defendant company and the contributory negligence of
the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the
contract of carriage, and that the obligation to respond for the damage which plaintiff
has suffered arises, if at all, from the breach of that contract by reason of the failure of
defendant to exercise due care in its performance. That is to say, its liability is direct
and immediate, differing essentially, in legal viewpoint from that presumptive
responsibility for the negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex
contractu, but only to extra-contractual obligations — or to use the technical form of
expression, that article relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil
Code, clearly points out this distinction, which was also recognized by this Court in its
decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the difference between
"culpa, substantive and independent, which of itself constitutes the source of an
obligation between persons not formerly connected by any legal tie"
and culpa considered as an accident in the performance of an obligation already
existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon
the proposition that article 1903 of the Civil Code is not applicable to acts of negligence
which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are
applicable are understood to be those not growing out of pre-existing duties
of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi-contract, then breaches of
those duties are subject to article 1101, 1103, and 1104 of the same code.
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law,
is, in certain cases imposed upon employers with respect to damages occasioned by
the negligence of their employees to persons to whom they are not bound by contract,
is not based, as in the English Common Law, upon the principle of respondeat superior
— if it were, the master would be liable in every case and unconditionally — but upon
the principle announced in article 1902 of the Civil Code, which imposes upon all
persons who by their fault or negligence, do injury to another, the obligation of making
good the damage caused. One who places a powerful automobile in the hands of a
servant whom he knows to be ignorant of the method of managing such a vehicle, is
himself guilty of an act of negligence which makes him liable for all the consequences
of his imprudence. The obligation to make good the damage arises at the very instant
that the unskillful servant, while acting within the scope of his employment causes the
injury. The liability of the master is personal and direct. But, if the master has not been
guilty of any negligence whatever in the selection and direction of the servant, he is not
liable for the acts of the latter, whatever done within the scope of his employment or
not, if the damage done by the servant does not amount to a breach of the contract
between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of
the servant relieves the master from liability for the latter's acts — on the contrary, that
proof shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68)
the liability arising from extra-contractual culpa is always based upon a voluntary act or
omission which, without willful intent, but by mere negligence or inattention, has caused
damage to another. A master who exercises all possible care in the selection of his
servant, taking into consideration the qualifications they should possess for the
discharge of the duties which it is his purpose to confide to them, and directs them with
equal diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of
his servants, even within the scope of their employment, such third person suffer
damage. True it is that under article 1903 of the Civil Code the law creates
a presumption that he has been negligent in the selection or direction of his servant,
but the presumption is rebuttable and yield to proof of due care and diligence in this
respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the
Porto Rico Code, has held that these articles are applicable to cases of extra-
contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon
the theory of the extra-contractual liability of the defendant to respond for the damage
caused by the carelessness of his employee while acting within the scope of his
employment. The Court, after citing the last paragraph of article 1903 of the Civil Code,
said:
From this article two things are apparent: (1) That when an injury is caused by
the negligence of a servant or employee there instantly arises a presumption
of law that there was negligence on the part of the master or employer either
in selection of the servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and not juris et
de jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in striking contrast
to the American doctrine that, in relations with strangers, the negligence of the
servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have been
some fault attributable to the defendant personally, and that the last paragraph of article
1903 merely establishes a rebuttable presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by
article 1903 is imposed by reason of the breach of the duties inherent in the special
relations of authority or superiority existing between the person called upon to repair
the damage and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or
omissions of their servants or agents, when such acts or omissions cause damages
which amount to the breach of a contact, is not based upon a mere presumption of the
master's negligence in their selection or control, and proof of exercise of the utmost
diligence and care in this regard does not relieve the master of his liability for the breach
of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-
contractual obligation has its source in the breach or omission of those mutual duties
which civilized society imposes upon it members, or which arise from these relations,
other than contractual, of certain members of society to others, generally embraced in
the concept of status. The legal rights of each member of society constitute the
measure of the corresponding legal duties, mainly negative in character, which the
existence of those rights imposes upon all other members of society. The breach of
these general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which arise from contract,
rests upon the fact that in cases of non-contractual obligation it is the wrongful or
negligent act or omission itself which creates the vinculum juris, whereas in contractual
relations the vinculum exists independently of the breach of the voluntary duty
assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect — and our Legislature has so
elected — whom such an obligation is imposed is morally culpable, or, on the contrary,
for reasons of public policy, to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence of those person who acts
or mission are imputable, by a legal fiction, to others who are in a position to exercise
an absolute or limited control over them. The legislature which adopted our Civil Code
has elected to limit extra-contractual liability — with certain well-defined exceptions —
to cases in which moral culpability can be directly imputed to the persons to be charged.
This moral responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with respect to the person made
liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render
service to another, is wholly different from that to which article 1903 relates. When the
sources of the obligation upon which plaintiff's cause of action depends is a negligent
act or omission, the burden of proof rests upon plaintiff to prove the negligence — if he
does not his action fails. But when the facts averred show a contractual undertaking by
defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused
to perform the contract, it is not necessary for plaintiff to specify in his pleadings whether
the breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its nonperformance
is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing
creditor should assume the burden of proof of its existence, as the only fact
upon which his action is based; while on the contrary, in a case of negligence
which presupposes the existence of a contractual obligation, if the creditor
shows that it exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show
that the breach was due to the negligent conduct of defendant or of his servants, even
though such be in fact the actual cause of the breach, it is obvious that proof on the
part of defendant that the negligence or omission of his servants or agents caused the
breach of the contract would not constitute a defense to the action. If the negligence of
servants or agents could be invoked as a means of discharging the liability arising from
contract, the anomalous result would be that person acting through the medium of
agents or servants in the performance of their contracts, would be in a better position
than those acting in person. If one delivers a valuable watch to watchmaker who
contract to repair it, and the bailee, by a personal negligent act causes its destruction,
he is unquestionably liable. Would it be logical to free him from his liability for the breach
of his contract, which involves the duty to exercise due care in the preservation of the
watch, if he shows that it was his servant whose negligence caused the injury? If such
a theory could be accepted, juridical persons would enjoy practically complete immunity
from damages arising from the breach of their contracts if caused by negligent acts as
such juridical persons can of necessity only act through agents or servants, and it would
no doubt be true in most instances that reasonable care had been taken in selection
and direction of such servants. If one delivers securities to a banking corporation as
collateral, and they are lost by reason of the negligence of some clerk employed by the
bank, would it be just and reasonable to permit the bank to relieve itself of liability for
the breach of its contract to return the collateral upon the payment of the debt by proving
that due care had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa
contractual as a mere incident to the performance of a contract has frequently been
recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November
20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared
that plaintiff's action arose ex contractu, but that defendant sought to avail himself of
the provisions of article 1902 of the Civil Code as a defense. The Spanish Supreme
Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by
fault or negligence, such as those to which article 1902 of the Civil Code
relates, but of damages caused by the defendant's failure to carry out the
undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for
damage done by the negligent acts of their servants will show that in no case has the
court ever decided that the negligence of the defendant's servants has been held to
constitute a defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a
carriage was not liable for the damages caused by the negligence of his driver. In that
case the court commented on the fact that no evidence had been adduced in the trial
court that the defendant had been negligent in the employment of the driver, or that he
had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep.,
215), the plaintiff sued the defendant for damages caused by the loss of a barge
belonging to plaintiff which was allowed to get adrift by the negligence of defendant's
servants in the course of the performance of a contract of towage. The court held, citing
Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract
made between it and the plaintiff . . . we do not think that the provisions of articles 1902
and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the
defendant to recover damages for the personal injuries caused by the negligence of
defendant's chauffeur while driving defendant's automobile in which defendant was
riding at the time. The court found that the damages were caused by the negligence of
the driver of the automobile, but held that the master was not liable, although he was
present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as
to give the owner a reasonable opportunity to observe them and to direct the
driver to desist therefrom. . . . The act complained of must be continued in the
presence of the owner for such length of time that the owner by his
acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co.
(33 Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of the
defendant upon article 1903, although the facts disclosed that the injury complaint of
by plaintiff constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was that article 1903, in
dealing with the liability of a master for the negligent acts of his servants "makes the
distinction between private individuals and public enterprise;" that as to the latter the
law creates a rebuttable presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of negligence had not been
overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's
action as though founded in tort rather than as based upon the breach of the contract
of carriage, and an examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed from the standpoint
of the defendant the practical result must have been the same in any event. The proof
disclosed beyond doubt that the defendant's servant was grossly negligent and that his
negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared
that defendant had been guilty of negligence in its failure to exercise proper discretion
in the direction of the servant. Defendant was, therefore, liable for the injury suffered
by plaintiff, whether the breach of the duty were to be regarded as constituting culpa
aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether
negligence occurs an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or omission productive of
damage due to carelessness or inattention on the part of the defendant. Consequently,
when the court holds that a defendant is liable in damages for having failed to exercise
due care, either directly, or in failing to exercise proper care in the selection and
direction of his servants, the practical result is identical in either case. Therefore, it
follows that it is not to be inferred, because the court held in the Yamada case that
defendant was liable for the damages negligently caused by its servants to a person to
whom it was bound by contract, and made reference to the fact that the defendant was
negligent in the selection and control of its servants, that in such a case the court would
have held that it would have been a good defense to the action, if presented squarely
upon the theory of the breach of the contract, for defendant to have proved that it did
in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the
relative spheres of contractual and extra-contractual obligations. The field of non-
contractual obligation is much more broader than that of contractual obligations,
comprising, as it does, the whole extent of juridical human relations. These two fields,
figuratively speaking, concentric; that is to say, the mere fact that a person is bound to
another by contract does not relieve him from extra-contractual liability to such person.
When such a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extra-contractual
obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to
carry him in safety and to provide safe means of entering and leaving its trains (civil
code, article 1258). That duty, being contractual, was direct and immediate, and its non-
performance could not be excused by proof that the fault was morally imputable to
defendant's servants.
The railroad company's defense involves the assumption that even granting that the
negligent conduct of its servants in placing an obstruction upon the platform was a
breach of its contractual obligation to maintain safe means of approaching and leaving
its trains, the direct and proximate cause of the injury suffered by plaintiff was his own
contributory negligence in failing to wait until the train had come to a complete stop
before alighting. Under the doctrine of comparative negligence announced in the Rakes
case (supra), if the accident was caused by plaintiff's own negligence, no liability is
imposed upon defendant's negligence and plaintiff's negligence merely contributed to
his injury, the damages should be apportioned. It is, therefore, important to ascertain if
defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before
alighting, the particular injury suffered by him could not have occurred. Defendant
contends, and cites many authorities in support of the contention, that it is
negligence per se for a passenger to alight from a moving train. We are not disposed
to subscribe to this doctrine in its absolute form. We are of the opinion that this
proposition is too badly stated and is at variance with the experience of every-day life.
In this particular instance, that the train was barely moving when plaintiff alighted is
shown conclusively by the fact that it came to stop within six meters from the place
where he stepped from it. Thousands of person alight from trains under these
conditions every day of the year, and sustain no injury where the company has kept its
platform free from dangerous obstructions. There is no reason to believe that plaintiff
would have suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed
in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of
ordinary or reasonable care. It is to be considered whether an ordinarily
 prudent person, of the age, sex and condition of the passenger, would have
acted as the passenger acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care which may or should
be used by the prudent man generally, but the care which a man of ordinary
prudence would use under similar circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith
(37 Phil. rep., 809), we may say that the test is this; Was there anything in the
circumstances surrounding the plaintiff at the time he alighted from the train which
would have admonished a person of average prudence that to get off the train under
the conditions then existing was dangerous? If so, the plaintiff should have desisted
from alighting; and his failure so to desist was contributory negligence.1awph!l.net
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a
month as a copyist clerk, and that the injuries he has suffered have permanently
disabled him from continuing that employment. Defendant has not shown that any other
gainful occupation is open to plaintiff. His expectancy of life, according to the standard
mortality tables, is approximately thirty-three years. We are of the opinion that a fair
compensation for the damage suffered by him for his permanent disability is the sum
of P2,500, and that he is also entitled to recover of defendant the additional sum of
P790.25 for medical attention, hospital services, and other incidental expenditures
connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for
the sum of P3,290.25, and for the costs of both instances. So ordered.

As the case now before us presents itself, the only fact from which a conclusion can be
drawn to the effect that plaintiff was guilty of contributory negligence is that he stepped
off the car without being able to discern clearly the condition of the platform and while
the train was yet slowly moving. In considering the situation thus presented, it should
not be overlooked that the plaintiff was, as we find, ignorant of the fact that the
obstruction which was caused by the sacks of melons piled on the platform existed;
and as the defendant was bound by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff had a right to assume,
in the absence of some circumstance to warn him to the contrary, that the platform was
clear. The place, as we have already stated, was dark, or dimly lighted, and this also is
proof of a failure upon the part of the defendant in the performance of a duty owing by
it to the plaintiff; for if it were by any possibility concede that it had right to pile these
sacks in the path of alighting passengers, the placing of them adequately so that their
presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this
case the following circumstances are to be noted: The company's platform was
constructed upon a level higher than that of the roadbed and the surrounding ground.
The distance from the steps of the car to the spot where the alighting passenger would
place his feet on the platform was thus reduced, thereby decreasing the risk incident to
stepping off. The nature of the platform, constructed as it was of cement material, also
assured to the passenger a stable and even surface on which to alight. Furthermore,
the plaintiff was possessed of the vigor and agility of young manhood, and it was by no
means so risky for him to get off while the train was yet moving as the same act would
have been in an aged or feeble person. In determining the question of contributory
negligence in performing such act — that is to say, whether the passenger acted
prudently or recklessly — the age, sex, and physical condition of the passenger are
circumstances necessarily affecting the safety of the passenger, and should be
considered. Women, it has been observed, as a general rule are less capable than men
of alighting with safety under such conditions, as the nature of their wearing apparel
obstructs the free movement of the limbs. Again, it may be noted that the place was
perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at
this station. There could, therefore, be no uncertainty in his mind with regard either to
the length of the step which he was required to take or the character of the platform
where he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking
to alight while the train was yet slightly under way was not characterized by imprudence
and that therefore he was not guilty of contributory negligence.
 3. Gregorio v. CA GR No. 179799
ZENAIDA R. GREGORIO,
Petitioner,
- versus -
COURT OF APPEALS, SANSIO PHILIPPINES, INC., and
EMMA J. DATUIN,
Respondents.
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
This is a petition[1] for certiorari under Rule 45 of the Rules of Court assailing the
Decision[2] of the Court of Appeals (CA) dated January 31, 2007 and its
Resolution[3] dated September 12, 2007 in CA-G.R. SP No. 63602, entitled Sansio
Philippines, Inc., et al. v. Hon. Romulo SG. Villanueva, et al.
The case arose from the filing of an Affidavit of Complaint[4] for violation of Batas
Pambansa Bilang (B.P. Blg.) 22 (Bouncing Checks Law) by respondent Emma J.
Datuin (Datuin), as Officer-in-Charge of the Accounts Receivables Department, and
upon authority of petitioner Sansio Philippines, Inc. (Sansio), against petitioner Zenaida
R. Gregorio (Gregorio) and one Vito Belarmino, as proprietors of Alvi Marketing,
allegedly for delivering insufficiently funded bank checks as payment for the numerous
appliances bought by Alvi Marketing from Sansio.
As the address stated in the complaint was incorrect, Gregorio was unable to controvert
the charges against her. Consequently, she was indicted for three (3) counts of violation
of B.P. Blg. 22, docketed as Criminal Case Nos. 236544, 236545, and 236546, before
the Metropolitan Trial Court (MeTC), Branch 3, Manila.
The MeTC issued a warrant[5] for her arrest, and it was served upon her by
the armed operatives of the Public Assistance and Reaction Against Crime (PARAC)
of the Department of Interior and Local Government (DILG) on October 17, 1997,
Friday, at around 9:30 a.m. in Quezon City while she was visiting her husband and their
two (2) daughters at their city residence. Gregorio was brought to the PARAC-DILG
Office where she was subjected to fingerprinting and mug shots, and was detained. She
was released in the afternoon of the same day when her husband posted a bond for
her temporary liberty.
G.R. No. 179799 On December 5, 1997, Gregorio filed before the MeTC a Motion[6] for
Deferment of Arraignment and Reinvestigation, alleging that she could not have issued
Present: the bounced checks, since she did not even have a checking account with the bank on
which the checks were drawn, as certified by the branch manager of the Philippine
YNARES-SANTIAGO, J., National Bank, Sorsogon Branch. She also alleged that her signature was patently and
Chairperson, radically different from the signatures appearing on the bounced checks.
CHICO-NAZARIO,
VELASCO, JR., The MeTC granted the Motion and a reinvestigation was conducted. In the
NACHURA, and course of the reinvestigation, Datuin submitted an Affidavit of Desistance[7] dated
PERALTA, JJ. August 18, 1998, stating, among others, that Gregorio was not one of the signatories
of the bounced checks subject of prosecution.
Promulgated:
Subsequently, the assistant city prosecutor filed a Motion to Dismiss[8] dated
September 11, 2009 November 12, 1998 with respect to Criminal Case Nos. 236544-46. The MeTC granted
the motion and ordered the B.P. Blg. 22 cases dismissed.[9]
On August 18, 2000, Gregorio filed a complaint[10] for damages against Sansio
and Datuin before the Regional Trial Court (RTC), Branch 12, Ligao, Albay. The
complaint, in part, reads
4. That on or about December 15, 1995, defendant Emma J. Datuin
filed with the Office of the City Prosecutor of Manila an Affidavit of
Complaint wherein, among others, she alleged under oath that as an
Officer In-charge of the Accounts Receivables Department of
SANSIO PHILIPPINES, INC., she was duly authorized and
empowered by said company to file cases against debtors,
customers and dealers of the company;
xxxx
5. That while acting under authority of her employer namely the
defendant SANSIO PHILIPPINES, INC., defendant EMMA J.
DATUIN falsely stated in the Affidavit of Complaint (Annex A), among
others, that plaintiff Zenaida R. Gregorio issued and delivered to their
office the following checks, to wit:
a. PNB Check No. C-347108 dated November 30,
1992 in the amount of P9,564.00;
b. PNB Check No. C-347109 dated November 30,
1992 in the amount of P19,194.48; and
c. PNB Check No. C-347104 dated December 2,
1992 in the amount of P10,000.00
and that the above-mentioned PNB Checks bounced when
deposited upon maturity;
6. That as a result of the filing of the Affidavit of Complaint (Annex A)
wherein defendant Emma J. Datuin falsely charged the plaintiff with
offenses of Estafa and/or violation of B.P. Blg. 22 on three (3) counts,
the Office of the City Prosecutor of Manila issued a Resolution dated
April 1, 1996 finding the existence of a probable cause against the
plaintiff for violation of Batas Pambansa Blg. 22 on three counts;
xxxx
7. That in the MEMO OF PRELIMINARY INVESTIGATION attached
hereto as Annex C, signed by defendant Emma J. Datuin she falsely
indicated the address of plaintiff to be at No. 76 Pearanda Street,
Legaspi City when the truth of the matter is that the latters correct
address is at Barangay Rizal, Oas, Albay;
8. That as a consequence of the aforegoing false and misleading
indication of address, plaintiff was therefore not duly notified of the
charges filed against her by defendant Emma J. Datuin; and more,
she was not able to controvert them before the investigating
prosecutor, finally resulting in the filing in court of three (3)
informations accusing her of violating B.P. 22;
xxxx
9. That as pernicious result of the unwarranted and baseless
accusation by the defendants which culminated in the filing of three
(3) informations in the Metropolitan Trial Court of Manila, Branch 3
indicting the plaintiff on three counts of the offense of violating B.P.
22, the said court issued a Warrant of Arrest on July 22, 1996
ordering the arrest of the plaintiff;
xxxx
10. That taking extra effort to expedite the apprehension of plaintiff,
defendants retained private prosecutor managed to obtain the
Warrant for the Arrest of said plaintiff from the Court as evidenced by
the copy of the letter of lawyer Alquin B. Manguerra of Chua and
Associates Law Office (Annex H) so much so that in the morning of
October 17, 1997, while plaintiff was visiting her husband Jose
Gregorio and their two daughters at their city residence at 78 K-2
Street, Kamuning, Quezon City, and without the slightest premonition
that she was wanted by the law, armed operatives of the Public
Assistance and Reaction Against Crime (PARAC) of DILG suddenly
swooped down on their residence, arrested the plaintiff and brought
her to the PARAC DILG Office in Quezon City where she was
fingerprinted and detained like an ordinary criminal;
xxxx
11. That feeling distraught, helpless and hungry (not having eaten for
a whole day) the plaintiff languished in her place of confinement until
the late afternoon of October 17, 1997 when her husband was able
to post a bond for her temporary liberty and secure an order of
release (Annex J) from the court. It was providential that a city judge
was available in the late afternoon of October 17, 1997 which was a
Friday, otherwise plaintiff would have remained in confinement for
the entire weekend;
12. That because of her desire to prove and establish her innocence
of the unjustified charges lodged against her by the defendants, the
plaintiff was thus compelled to retain the services of counsel resulting
in the filing of a Motion for Deferment of Arraignment and
Reinvestigation (Annex K) which was granted by the court; the filing
of a Request for Reinvestigation with the prosecutors office (Annex
L); and the submission of a Counter-Affidavit to the investigating
prosecutor. All of these culminated in the filing by the investigating
prosecutor of a Motion to Dismiss (Annex M) the three criminal cases
as a consequence of which the Court issued an Order dated June 1,
1999 (Annex N) dismissing Criminal Cases No. 236544, No. 236545
and No. 236546, copy of which was received by plaintiff only on July
7, 2000;
13. That previous to the filing of the above-mentioned Motion to
Dismiss by the prosecutor and having been faced with the truth and
righteousness of plaintiffs avowal of innocence which was irrefutable,
defendants had no recourse but to concede and recognize the verity
that they had wrongly accused an innocent person, in itself a brazen
travesty of justice, so much so that defendant Emma J. Datuin had
to execute an Affidavit of Desistance (Annex O) admitting that
plaintiff is not a signatory to the three bouncing checks in question,
rationalizing, albeit lamely, that the filing of the cases against the
plaintiff was by virtue of an honest mistake or inadvertence on her
(Datuins) part;
14. Be that as it may, incalculable damage has been inflicted on
the plaintiff on account of the defendants wanton, callous and
reckless disregard of the fundamental legal precept that every
person shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons (Art. 26, Civil Code
of the Philippines);
15. That the plaintiff, being completely innocent of the
charges against her as adverted to in the preceding paragraphs, was
socially humiliated, embarrassed, suffered physical discomfort,
mental anguish, fright, and serious anxiety as a proximate result of
her unjustified indictment, arrest and detention at the PARAC
headquarters all of these ordeals having been exacerbated by the
fact that plaintiff is a woman who comes from a respected family in
Oas, Albay, being the wife of an executive of the Philippine National
Construction Corporation, the mother of two college students
studying in Manila, a pharmacist by profession, a businesswoman by
occupation, and an incumbent Municipal Councilor (Kagawad) of
Oas, Albay, at the time of her arrest and detention; and that she
previously held the following positions:

(a). President, Philippine Pharmaceutical Association (Albay
Chapter);
(b). Chairman of the Board, Albay Pharmaceutical Marketing
Cooperative (ALPHAMAC);
(c). Charter Secretary, Kiwanis Club of Oas;
(d). Chairman, Polangui Ladies Multi-Purpose Cooperative,
Polangui, Albay;
(e). Vicarial Regent, Daughters of Mary Immaculate International,
District IX;
(f). Chapter President and Municipal Coordinator, Albay Women
Volunteers Association, Inc., Legaspi City;
(g). Regent, Daughters of Mary Immaculate International Virgo
Clemens Circle, Oas, Albay;
(h). Secretary, Girl Scout of the Philippines District Association; and
(i). Director, Albay Electric Cooperative (ALECO),
not to mention the undue aspersion cast upon her social,
professional and business reputation because of defendants tortious
act of accusing her of Estafa and/or issuing bouncing checks even
without a scintilla of evidence;
16. That to compound the aforegoing travails and sufferings of the
plaintiff she had to devote and spend much of her time, money and
efforts trying to clear her tarnished name and reputation, including
traveling to and from Manila to confer with her lawyer, attend the
hearings at the prosecutors office and at the Metropolitan Trial Court;
17. By and large, defendants fault or, at the very least, their reckless
imprudence or negligence, in filing the three (3) criminal cases
against the plaintiff unequivocally caused damage to the latter and
because of defendants baseless and unjustified accusations, plaintiff
was constrained to retain the services of a lawyer to represent her at
the Metropolitan Trial Court and at the Office of the City Prosecutor
at Manila in order to establish her innocence and cause the dismissal
of the three (3) criminal cases filed against her, reason for which she
spent P20,000.00; and in order to institute this instant action for the
redress of her grievances, plaintiff have to pay the sum
of P50,000.00 as attorneys fees and incur litigation expenses in the
amount of P35,000.00;
18. That by reason of all the aforegoing and pursuant to the
provision of law that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged
to pay for the damage done, (Article 2176, Civil Code of the
Philippines), the plaintiff is entitled to and hereby claims the
following items of damages:
a. P3,000,000.00 as moral damages
b. P50,000.00 as actual damages
c. P50,000.00 as nominal damages
d. P70,000.00 as attorneys fees
e. P35,000.00 as litigation expenses
19. That defendants herein are jointly and solidarily liable for the
payment of the above items of damages being co-
tortfeasors. Moreover, defendant SANSIO PHILIPPINES, INC. is
vicariously liable as the employer of defendant Emma J. Datuin
who patently acted within the scope of her assigned
tasks (Vide: Art. 2180, Civil Code of the Philippines).[11]
Sansio and Datuin filed a Motion to Dismiss[12] on the ground that the
complaint, being one for damages arising from malicious prosecution, failed to state a
cause of action, as the ultimate facts constituting the elements thereof were not alleged
in the complaint. Gregorio opposed[13] the Motion. Sansio and Datuin filed their
Reply[14] to the Opposition. Gregorio, in turn, filed her Rejoinder.[15]
On October 10, 2000, the RTC issued an Order[16] denying the Motion to
Dismiss. Sansio and Datuin filed a Motion for Reconsideration[17] of the October 10,
2000 Order, but the RTC denied the same in its Order[18] dated January 5, 2001.
Sansio and Datuin went to the CA via a petition[19] for certiorari under Rule 65
of the Rules of Court alleging grave abuse of discretion on the part of the presiding
judge of the RTC in denying their motions to dismiss and for reconsideration.
Meanwhile, on March 20, 2003, the RTC rendered its Decision in the civil case
for damages instituted by Gregorio, directing Sansio and Datuin, jointly and solidarily,
to pay Gregorio P200,000.00 as moral damages; P10,000.00 as nominal
damages; P35,000.00 as litigation expenses; P30,000.00 as attorneys fees; and costs
of the suit. The RTC expressly stated in its Decision that the complaint was one for
damages based on quasi-delict and not on malicious prosecution.
Aggrieved by the March 20, 2003 Decision, Sansio and Datuin appealed to
the CA, and the same is now pending resolution.
On January 31, 2007, the CA rendered a Decision on the certiorari case
granting the petition and ordering the dismissal of the damage suit of Gregorio. The
latter moved to reconsider the said Decision but the same was denied in the appellate
courts Resolution dated September 12, 2007.
Hence, this petition.
The core issue to be resolved, as culled from the factual circumstances of this
case, is whether the complaint, a civil suit filed by Gregorio, is based on quasi-delict or
malicious prosecution.
It is the position of Sansio and Datuin that the complaint for damages filed by
Gregorio before the RTC was for malicious prosecution, but it failed to allege the
elements thereof, such that it was aptly dismissed on appeal by the CA on the ground
of lack of cause of action. In their comment, citing Albenson Enterprise Corporation v.
Court of Appeals,[20] they posit that Article 26 of the Civil Code, cited by Gregorio as
one of the bases for her complaint, and Articles 19, 20, and 21 of the same Code,
mentioned by the RTC as bases for sustaining the complaint, are the very same
provisions upon which malicious prosecution is grounded. And in order to further
buttress their position that Gregorios complaint was indeed one for malicious
prosecution, they even pointed out the fact that Gregorio prayed for moral damages,
which may be awarded only in case of malicious prosecution or, if the case is for quasi-
delict, only if physical injury results therefrom.
We disagree.
A perusal of the allegations of Gregorios complaint for damages readily shows
that she filed a civil suit against Sansio and Datuin for filing against her criminal charges
for violation of B.P. Blg. 22; that respondents did not exercise diligent efforts to
ascertain the true identity of the person who delivered to them insufficiently funded
checks as payment for the various appliances purchased; and that respondents never
gave her the opportunity to controvert the charges against her, because they stated an
incorrect address in the criminal complaint. Gregorio claimed damages for the
embarrassment and humiliation she suffered when she was suddenly arrested at her
city residence in Quezon City while visiting her family. She was, at the time of her
arrest, a respected Kagawad in Oas, Albay. Gregorio anchored her civil complaint on
Articles 26,[21] 2176,[22] and 2180[23] of the Civil Code. Noticeably, despite alleging
either fault or negligence on the part of Sansio and Datuin, Gregorio never imputed to
them any bad faith in her complaint.
Basic is the legal principle that the nature of an action is determined by the
material averments in the complaint and the character of the relief
sought.[24] Undeniably, Gregorios civil complaint, read in its entirety, is a complaint
based on quasi-delict under Article 2176, in relation to Article 26 of the Civil Code,
rather than on malicious prosecution.
In every tort case filed under Article 2176 of the Civil Code, the plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by him; (2) the fault
or negligence of the defendant or some other person to whose act he must respond;
(3) the connection of cause and effect between the fault or negligence and the damages
incurred; and (4) that there must be no preexisting contractual relation between the
parties.[25]
On the other hand, Article 26 of the Civil Code grants a cause of action for
damages, prevention, and other relief in cases of breach, though not necessarily
constituting a criminal offense, of the following rights: (1) right to personal dignity; (2)
right to personal security; (3) right to family relations; (4) right to social intercourse; (5)
right to privacy; and (6) right to peace of mind.[26]
A scrutiny of Gregorios civil complaint reveals that the averments thereof,
taken together, fulfill the elements of Article 2176, in relation to Article 26 of the Civil
Code. It appears that Gregorios rights to personal dignity, personal security, privacy,
and peace of mind were infringed by Sansio and Datuin when they failed to exercise
the requisite diligence in determining the identity of the person they should rightfully
accuse of tendering insufficiently funded checks. This fault was compounded when
they failed to ascertain the correct address of petitioner, thus depriving her of the
opportunity to controvert the charges, because she was not given proper
notice. Because she was not able to refute the charges against her, petitioner was
falsely indicted for three (3) counts of violation of B.P. Blg. 22. Although she was never
found at No. 76 Pearanda St., Legaspi City, the office address of Alvi Marketing as
stated in the criminal complaint, Gregorio was conveniently arrested by armed
operatives of the PARAC-DILG at her city residence at 78 K-2 St., Kamuning, Quezon
City, while visiting her family. She suffered embarrassment and humiliation over her
sudden arrest and detention and she had to spend time, effort, and money to clear her
tarnished name and reputation, considering that she had held several honorable
positions in different organizations and offices in the public service, particularly her
being a Kagawad in Oas, Albay at the time of her arrest. There exists no contractual
relation between Gregorio and Sansio.On the other hand, Gregorio is prosecuting
Sansio, under Article 2180 of the Civil Code, for its vicarious liability, as employer,
arising from the act or omission of its employee Datuin.
These allegations, assuming them to be true, sufficiently constituted a cause
of action against Sansio and Datuin. Thus, the RTC was correct when it denied
respondents motion to dismiss.
Sansio and Datuin are in error when they insist that Gregorios complaint is
based on malicious prosecution. In an action to recover damages for malicious
prosecution, it must be alleged and established that Sansio and Datuin were impelled
by legal malice or bad faith in deliberately initiating an action against Gregorio, knowing
that the charges were false and groundless, intending to vex and humiliate her.[27] As
previously mentioned, Gregorio did not allege this in her complaint. Moreover, the fact
that she prayed for moral damages did not change the nature of her action based on
quasi-delict. She might have acted on the mistaken notion that she was entitled to moral
damages, considering that she suffered physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation on account of her indictment and her sudden arrest.
Verily, Gregorio was only acting within her right when she instituted against
Sansio and Datuin an action she perceived to be proper, given the factual antecedents
of the case.
WHEREFORE, the petition is GRANTED. The Decision dated January 31,
2007 and the Resolution dated September 12, 2007 are REVERSED and SET
ASIDE. Costs against respondents.
SO ORDERED.
 4. American Express International v. Cordero GR No. 138550
AMERICAN EXPRESS G.R. No. 138550
INTERNATIONAL, INC.,
Petitioner,
Present:
PANGANIBAN, J., Chairman,
SANDOVAL-GUTIERREZ,
- versus - CORONA,
CARPIO MORALES, and
GARCIA, JJ.
NOEL CORDERO, Promulgated:
Defendant.
October 14, 2005
x-------------------------------------------------------------------------------------------------x
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
This is a petition for review on certiorari of the Decision[1] of the Court of Appeals dated
April 30, 1999 in CA-G.R. CV No. 51671, entitled, Noel Cordero, Plaintiff-Appellee
versus American Express International, Inc., Defendant-Appellant.
Petitioner is a foreign corporation that issues charge cards to its customers, which the
latter then use to purchase goods and services at accredited merchants worldwide.
Sometime in 1988, Nilda Cordero, wife of respondent Noel Cordero, applied for and
was issued an American Express charge card with No. 3769-895901-010020. The
issuance of the charge card was covered by an Amex Cardmember Agreement. As
cardholder, Nilda, upon signing the back portion of the card, manifested her acceptance
of the terms of the Agreement.
An extension charge card, with No. 3769-895901-01010, was likewise issued
to respondent Noel Cordero which he also signed.[2]
On November 29, 1991, respondent, together with his wife, Nilda, daughter, sisters-in-
law and uncle-in-law, went on a three-day holiday trip to Hong Kong. In the early
evening of November 30, 1991, at about 7:00 oclock, the group went to the Watsons
Chemist Shop located at 277C Ocean Gallery, Kowloon, Hong Kong. Noel picked up
some chocolate candies and handed to the sales clerk his American Express extension
charge card to pay for his purchases. The sales clerk verified the card by making a
telephone call to the American Express Office in Hong Kong. Moments later, Susan
Chong, the store manager, emerged from behind the counter and informed respondent
that she had to confiscate the card. Thereupon, she cut respondents American Express
card in half with a pair of scissors. This, according to respondent, caused him
embarrassment and humiliation considering that it was done in front of his family and
the other customers lined up at the check-out counter. Hence, Nilda had to pay for the
purchases using her own American Express charge card.[3]
When they returned to the Excelsior Hotel, Nilda called up petitioners Office in Hong
Kong. She was able to talk to Senior Authorizer Johnny Chen, who informed her that
on November 1, 1991, a person in Hong Kong attempted to use a charge card with the
same number as respondents card. The Hong Kong American Express Office called
up respondent and after determining that he was in Manila and not in Hong Kong,
placed his card in the Inspect Airwarn Support System. This is the system utilized by
petitioner as a protection both for the company and the cardholders against the
fraudulent use of their charge cards. Once a card suspected of unauthorized use is
placed in the system, the person to whom the card is tendered must verify the identity
of the holder. If the true identity of the card owner is established, the card is honored
and the charges are approved. Otherwise, the card is revoked or confiscated.[4]
When the Watsons sales clerk called up petitioners Hong Kong Office, its
representative said he wants to talk to respondent in order to verify the latters identity,
pursuant to the procedure observed under the Inspect Airwarn Support System.
However, respondent refused. Consequently, petitioners representative was unable to
establish the identity of the cardholder.[5] This led to the confiscation of respondents
card.
On March 31, 1992, respondent filed with the Regional Trial Court, Branch V,
Manila, a complaint for damages against petitioner, docketed as Civil Case No. 92-
60807. He prayed for the award of moral damages and exemplary damages, as well
as attorneys fees as a result of the humiliation he suffered.
The trial court found that the inexcusable failure of defendant (petitioner
herein) to inform plaintiff (respondent herein) of the November 1, 1991 incident despite
sufficient time was the proximate cause of the confiscation and cutting of plaintiffs
extension card which exposed the latter to public humiliation for which defendant should
be held liable.[6] On February 20, 1995, the trial court promulgated its Decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant, ordering the latter to pay the
former the following amounts, namely:
a) The sum of P300,000.00 as and by way of moral
damages;
b) The sum of P200,000.00 as exemplary damages;
c) The sum of P100,000.00 as and for reasonable attorneys
fees; and
d) The costs of the suit.
SO ORDERED.[7]

Upon appeal, the Court of Appeals rendered the assailed Decision affirming
the trial courts Decision with modification in the sense that the amounts of damages
awarded were reduced, thus:
WHEREFORE, in view of the foregoing, the appealed
decision dated February 20, 1995 of the Regional Trial Court of
Manila, Branch V, in Civil Case No. 92-60807 is hereby AFFIRMED,
subject to modifications with respect to the amount of damages
awarded, which are reduced as follows:
(a) Moral damages from P300,000.00 to P150,000.00; and
(b) Exemplary damages from P200,000.00 to P100,000.00.
No pronouncement as to costs.
SO ORDERED.
Hence, the instant petition raising the following issues:
A. Whether the lower courts gravely erred in attributing the
public humiliation allegedly suffered by Cordero to Amex.
B. Whether the lower courts gravely erred in holding Amex
liable to Cordero for moral damages, exemplary damages and
attorneys fees.[8]
Respondent filed his comment contending in the main that the petition raises
questions of fact beyond this Courts domain.
While it is true that under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, this Court may review only errors of law, however, this rule admits of well-
known recognized exceptions, thus:
. . . (1) the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; (2) the inference made is
manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on a misapprehension of facts; (5) the findings of
fact are conflicting; (6) the Court of Appeals went beyond the issues
of the case and its findings are contrary to the admissions of both
parties; (7) the findings of fact of the Court of Appeals are contrary to
those of the trial court; (8) said findings of fact are conclusions
without citation of specific evidence on which they are based; (9) the
facts set forth in the petition are not disputed by the respondents; and
(10) the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on
record.[9]
In this case, the inference made by the courts below is manifestly mistaken.
Therefore, we are justified in reviewing the records of this case and rendering judgment
based on our own findings.
In his complaint, respondent claimed that he suffered embarrassment and
humiliation because his card was unceremoniously confiscated and cut in half by Susan
Chong of Watsons Chemist Shop.
Respondent anchors his cause of action on the following provision of the Civil
Code:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.[10]
In order that an obligation based on quasi-delict may arise, there must be no
pre-existing contractual relation between the parties. But there are exceptions. There
may be an action for quasi-delict notwithstanding that there is a subsisting contract
between the parties. A liability for tort may arise even under a contract, where tort is
that which breaches the contract. Stated differently, when an act which constitutes a
breach of contract would have itself constituted the source of a quasi-delictual liability,
the contract can be said to have been breached by tort, thereby allowing the rules on
tort to apply.[11]
Furthermore, to constitute quasi-delict, the fault or negligence must be the
proximate cause of the damage or injury suffered by the plaintiff. Proximate cause is
that cause which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result would not have
occurred. Proximate cause is determined by the facts of each case upon mixed
considerations of logic, common sense, policy and precedent.[12]
According to the trial court, petitioner should have informed respondent that
on November 1, 1991, a person in Hong Kong attempted to use a charge card bearing
similar number to that of respondents card; and that petitioners inexcusable failure to
do so is the proximate cause of the confiscation and cutting of [respondents] extension
card which exposed the latter to public humiliation for which [petitioner] should be held
liable.[13]
We cannot sustain the trial courts conclusion.
As explained by respondent himself, he could have used his card upon
verification by the sales clerk of Watson that indeed he is the authorized cardholder.
This could have been accomplished had respondent talked to petitioners
representative, enabling the latter to determine that respondent is indeed the true
holder of the card. Clearly, no negligence which breaches the contract can be attributed
to petitioner. If at all, the cause of respondents humiliation and embarrassment was his
refusal to talk to petitioners representative.
 That respondent refused to talk to petitioners representative can be gleaned Bulletin, or otherwise inform Establishments that the Card issued to
from the testimony of Mr. Chen Heng Kun a.k.a. Johnny Chen during the deposition in you and, if you are the basic Cardmember, any Additional Cards
Hong Kong,[14] thus: have been revoked or cancelled.

Question No 9 : Was AEII required under its existing
policies and/or membership agreement with
its cardholders to advise said cardholders of
their card have been put under the support
INSPECT Strictly Question (for identification)
cardmembers before approving any charge?
Mr. Johnny Chen : Under the existing policies of AEII,
we dont have to inform the cardholders if they
have to pass the INSPECT Strictly Questions
(for identification).
If we revoke the card or it expires, you must return it to us if
we request. Also, if any Establishment asks you to surrender an
expired or revoked Card, you must do so. You may not use the Card
after it has expired or after it has been revoked.
The revocation, repossession or request for the return of the
Card is not, and shall not constitute any reflection of your character
or credit-worthiness and we shall not be liable in any way for any
statement made by any person requesting the return or surrender of
the Card.[15]

Question No 10 : If the answer to Q9 is in the negative,

please explain why not?
Mr. Johnny Chen : The reason why we dont have to are To be sure, pursuant to the above stipulation, petitioner can revoke
because, first, we are not terminating the respondents card without notice, as was done here. It bears reiterating that the subject
service to the cardholder. Second, it doesnt card would not have been confiscated and cut had respondent talked to petitioners
mean that we are going to limit the service to representative and identified himself as the genuine cardholder. It is thus safe to
the cardholder. Third, as long as the conclude that there was no negligence on the part of petitioner and that, therefore, it
cardholder can present an identification card cannot be held liable to respondent for damages.
of his membership, we allow him to use the
card. He can show this by telephoning the WHEREFORE, the petition is GRANTED. The assailed Decision of the Court
company or by presenting us his passport or of Appeals in CA-G.R. CV No. 51671 is REVERSED.
travel document. When Watson Company
called AEII for authorization, AEII SO ORDERED.
representative requested that he talk to
Mr. Cordero but he refused to talk to any
representative of AEII. AEII could not
prove then that he is really the real card
holder.

Mr. Chen Heng Kun was briefly cross-examined by respondents counsel,

thus:

Question No 10 : Question 9 is objected to since the

best evidence would be the membership
agreement between plaintiffs and AEII.

Significantly, paragraph 16 of the Cardmember Agreement signed by

respondent provides:

16. THE CARD REMAINS OUR PROPERTY

The Card remains our property and we can revoke your

right and the right of ay Additional Cardmember to use it at any time,
we can do this with or without giving you notice. If we have revoked
the Card without cause, we will refund a proportion of your annual
Card Account fee. We may list revoked Cards in our Cancellation
 5. Air France v. Carrascoso 18 SCRA 185 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
G.R. No. L-21438 September 28, 1966 plaintiff reluctantly gave his "first class" seat in the plane.3

AIR FRANCE, petitioner, 1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of
vs. respondent Court of Appeals. Petitioner charges that respondent court failed to make
RAFAEL CARRASCOSO and the HONORABLE COURT OF complete findings of fact on all the issues properly laid before it. We are asked to
APPEALS, respondents. consider facts favorable to petitioner, and then, to overturn the appellate court's
decision.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso. 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
SANCHEZ, J.: complete findings of fact on all issues properly raised before it". 7

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
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". 16They 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)
xxx xxx xxx
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. 24Implicit 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". 29And 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 Tourist Class 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
xxx xxx xxx
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
xxx xxx xxx
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 ousted by 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.1awphîl.nèt
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.
 6. Far East Bank v. CA GR No. 108164
G.R. No. 108164 February 23, 1995
FAR EAST BANK AND TRUST COMPANY, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, LUIS A. LUNA and CLARITA S.
LUNA, respondents.
VITUG, J.:
Some time in October 1986, private respondent Luis A. Luna applied for, and was
accorded, a FAREASTCARD issued by petitioner Far East Bank and Trust Company
("FEBTC") at its Pasig Branch. Upon his request, the bank also issued a supplemental
card to private respondent Clarita S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was forthwith informed. In order to
replace the lost card, Clarita submitted an affidavit of loss. In cases of this nature, the
bank's internal security procedures and policy would appear to be to meanwhile so
record the lost card, along with the principal card, as a "Hot Card" or "Cancelled Card"
in its master file.
On 06 October 1988, Luis tendered a despedida lunch for a close friend, a Filipino-
American, and another guest at the Bahia Rooftop Restaurant of the Hotel
Intercontinental Manila. To pay for the lunch, Luis presented his FAREASTCARD to
the attending waiter who promptly had it verified through a telephone call to the bank's
Credit Card Department. Since the card was not honored, Luis was forced to pay in
cash the bill amounting to P588.13. Naturally, Luis felt embarrassed by this incident.
In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel,
demanded from FEBTC the payment of damages. Adrian V. Festejo, a vice-president
of the bank, expressed the bank's apologies to Luis. In his letter, dated 03 November
1988, Festejo, in part, said:
In cases when a card is reported to our office as lost, FAREASTCARD
undertakes the necessary action to avert its unauthorized use (such as
tagging the card as hotlisted), as it is always our intention to protect our
cardholders.
An investigation of your case however, revealed that FAREASTCARD failed
to inform you about its security policy. Furthermore, an overzealous employee
of the Bank's Credit Card Department did not consider the possibility that it
may have been you who was presenting the card at that time (for which
reason, the unfortunate incident occurred). 1
Festejo also sent a letter to the Manager of the Bahia Rooftop Restaurant to assure the
latter that private respondents were "very valued clients" of FEBTC. William Anthony
King, Food and Beverage Manager of the Intercontinental Hotel, wrote back to say that
the credibility of private respondent had never been "in question." A copy of this reply
was sent to Luis by Festejo.
Still evidently feeling aggrieved, private respondents, on 05 December 1988, filed a
complaint for damages with the Regional Trial Court ("RTC") of Pasig against FEBTC.
On 30 March 1990, the RTC of Pasig, given the foregoing factual settings, rendered a
decision ordering FEBTC to pay private respondents (a) P300,000.00 moral damages;
(b) P50,000.00 exemplary damages; and (c) P20,000.00 attorney's fees.
On appeal to the Court of Appeals, the appellate court affirmed the decision of the trial
court.
Its motion for reconsideration having been denied by the appellate court, FEBTC has
come to this Court with this petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered where the defendant is shown
to have acted in bad faith or with malice in the breach of the contract. 2 The Civil Code
provides:
Art. 2220. Willful injury to property may be a legal ground for awarding moral
damages if the court should find that, under the circumstances, such damages
are justly due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith. (Emphasis supplied)
Bad faith, in this context, includes gross, but not simple, negligence.3 Exceptionally, in
a contract of carriage, moral damages are also allowed in case of death of a passenger
attributable to the fault (which is presumed4 ) of the common carrier.5
Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his
own card's cancellation. Nothing in the findings of the trial court and the appellate court,
however, can sufficiently indicate any deliberate intent on the part of FEBTC to cause
harm to private respondents. Neither could FEBTC's negligence in failing to give
personal notice to Luis be considered so gross as to amount to malice or bad faith.
Malice or bad faith implies a conscious and intentional design to do a wrongful act for
a dishonest purpose or moral obliquity; it is different from the negative idea of
negligence in that malice or bad faith contemplates a state of mind affirmatively
operating with furtive design or ill will.6
We are not unaware of the previous rulings of this Court, such as in American Express
International, Inc., vs. Intermediate Appellate Court (167 SCRA 209) and Bank of
Philippine Islands vs. Intermediate Appellate Court (206 SCRA 408), sanctioning the
application of Article 21, in relation to Article 2217 and Article 22197 of the Civil Code
to a contractual breach similar to the case at bench. Article 21 states:
Art. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
Article 21 of the Code, it should be observed, contemplates a conscious act to cause
harm. Thus, even if we are to assume that the provision could properly relate to a
breach of contract, its application can be warranted only when the defendant's
disregard of his contractual obligation is so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad faith. Most importantly, Article 21
is a mere declaration of a general principle in human relations that clearly must, in any
case, give way to the specific provision of Article 2220 of the Civil Code authorizing the
grant of moral damages in culpa contractual solely when the breach is due to fraud or
bad faith.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. Miranda8 explained with great
clarity the predominance that we should give to Article 2220 in contractual relations; we
quote:
Anent the moral damages ordered to be paid to the respondent, the same
must be discarded. We have repeatedly ruled (Cachero vs. Manila Yellow
Taxicab Co. Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599; Necesito, et al. vs.
Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023), that moral damages are not
recoverable in damage actions predicated on a breach of the contract of
transportation, in view of Articles 2219 and 2220 of the new Civil Code, which
provide as follows:
Art. 2219. Moral damages may be recovered in the
following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
xxx xxx xxx
Art. 2220. Wilful injury to property may be a legal ground for
awarding moral damages if the court should find that, under
the circumstances, such damages are justly due. The same
rule applies to breaches of contract where the defendant
acted fraudulently or in bad faith.
By contrasting the provisions of these two articles it immediately becomes
apparent that:
(a) In case of breach of contract (including one of transportation) proof of bad
faith or fraud (dolus), i.e., wanton or deliberately injurious conduct, is essential
to justify an award of moral damages; and
(b) That a breach of contract can not be considered included in the descriptive
term "analogous cases" used in Art. 2219; not only because Art. 2220
specifically provides for the damages that are caused contractual breach, but
because the definition of quasi-delict in Art. 2176 of the Code expressly
excludes the cases where there is a "preexisitng contractual relations between
the parties."
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of
this Chapter.
The exception to the basic rule of damages now under consideration is a
mishap resulting in the death of a passenger, in which case Article 1764
makes the common carrier expressly subject to the rule of Art. 2206, that
entitles the spouse, descendants and ascendants of the deceased passenger
to "demand moral damages for mental anguish by reason of the death of the
deceased" (Necesito vs. Paras, 104 Phil. 84, Resolution on motion to
reconsider, September 11, 1958). But the exceptional rule of Art. 1764 makes
it all the more evident that where the injured passenger does not die, moral
damages are not recoverable unless it is proved that the carrier was guilty of
malice or bad faith. We think it is clear that the mere carelessness of the
carrier's driver does not per se constitute or justify an inference of malice or
bad faith on the part of the carrier; and in the case at bar there is no other
evidence of such malice to support the award of moral damages by the Court
of Appeals. To award moral damages for breach of contract, therefore, without
proof of bad faith or malice on the part of the defendant, as required by Art.
2220, would be to violate the clear provisions of the law, and constitute
unwarranted judicial legislation.
xxx xxx xxx
The distinction between fraud, bad faith or malice in the sense of deliberate or
wanton wrong doing and negligence (as mere carelessness) is too
fundamental in our law to be ignored (Arts. 1170-1172); their consequences
being clearly differentiated by the Code.
Art. 2201. In contracts and quasi-contracts, the damages
for which the obligor who acted in good faith is liable shall
be those that are the natural and probable consequences
of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the
obligation was constituted.
 In case of fraud, bad faith, malice or wanton attitude, the
obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the
obligation.
It is to be presumed, in the absence of statutory provision to the contrary, that
this difference was in the mind of the lawmakers when in Art. 2220 they limited
recovery of moral damages to breaches of contract in bad faith. It is true that
negligence may be occasionally so gross as to amount to malice; but the fact
must be shown in evidence, and a carrier's bad faith is not to be lightly inferred
from a mere finding that the contract was breached through negligence of the
carrier's employees.
Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card
issued to private respondent Luis should entitle him to recover a measure of damages
sanctioned under Article 2221 of the Civil Code providing thusly:
Art. 2221. Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him.
Reasonable attorney's fees may be recovered where the court deems such recovery
to be just and equitable (Art. 2208, Civil Code). We see no issue of sound discretion on
the part of the appellate court in allowing the award thereof by the trial court.

The Court has not in the process overlooked another rule that a quasi-delict can be the WHEREFORE, the petition for review is given due course. The appealed decision is
cause for breaching a contract that might thereby permit the application of applicable MODIFIED by deleting the award of moral and exemplary damages to private
principles on tort9 even where there is a pre-existing contract between the plaintiff and respondents; in its stead, petitioner is ordered to pay private respondent Luis A. Luna
the defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA 143; Singson vs. Bank of an amount of P5,000.00 by way of nominal damages. In all other respects, the appealed
Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18 SCRA 155). This decision is AFFIRMED. No costs.
doctrine, unfortunately, cannot improve private respondents' case for it can aptly govern
only where the act or omission complained of would constitute an actionable tort
independently of the contract. The test (whether a quasi-delict can be deemed to SO ORDERED.
underlie the breach of a contract) can be stated thusly: Where, without a pre-existing
contract between two parties, an act or omission can nonetheless amount to an
actionable tort by itself, the fact that the parties are contractually bound is no bar to the
application of quasi-delict provisions to the case. Here, private respondents' damage
claim is predicated solely on their contractual relationship; without such agreement, the
act or omission complained of cannot by itself be held to stand as a separate cause of
action or as an independent actionable tort.

The Court finds, therefore, the award of moral damages made by the court a quo,
affirmed by the appellate court, to be inordinate and substantially devoid of legal basis.

Exemplary or corrective damages, in turn, are intended to serve as an example or as

correction for the public good in addition to moral, temperate, liquidated or
compensatory damages (Art. 2229, Civil Code; see Prudenciado vs. Alliance Transport
System, 148 SCRA 440; Lopez vs. Pan American World Airways, 16 SCRA 431).
In criminal offenses, exemplary damages are imposed when the crime is committed
with one or more aggravating circumstances (Art. 2230, Civil Code). In quasi-delicts,
such damages are granted if the defendant is shown to have been so guilty of gross
negligence as to approximate malice (See Art. 2231, Civil Code; CLLC E.G.
Gochangco Workers Union vs. NLRC, 161 SCRA 655; Globe Mackay Cable and Radio
Corp. vs. CA, 176 SCRA 778). In contracts and quasi-contracts, the court may award
exemplary damages if the defendant is found to have acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner (Art. 2232, Civil Code; PNB vs. Gen.
Acceptance and Finance Corp., 161 SCRA 449).

Given the above premises and the factual circumstances here obtaining, it would also
be just as arduous to sustain the exemplary damages granted by the courts below
(see De Leon vs. Court of Appeals, 165 SCRA 166).
 7. Equitable Leasing v. Suyom GR No. 143360 1. the sum of P50,000.00 for the death of Reniel Tamayo;

2. P50,000.00 as moral damages; and

[G.R. No. 143360. September 5, 2002] 3. P56,000.00 for the damage to the store and its contents, and funeral expenses.

B. TO FELIX OLEDAN

EQUITABLE LEASING CORPORATION, petitioner, vs. LUCITA SUYOM, MARISSA

1. the sum of P50,000.00 for the death of Felmarie Oledan;
ENANO, MYRNA TAMAYO and FELIX OLEDAN, respondents.

2. P50,000.00 as moral damages; and

DECISION
PANGANIBAN, J.: 3. P30,000.00 for medical expenses, and funeral expenses.

In an action based on quasi delict, the registered owner of a motor vehicle is C. TO MARISSA ENANO
solidarily liable for the injuries and damages caused by the negligence of the driver, in
spite of the fact that the vehicle may have already been the subject of an unregistered 1. P7,000.00 as actual damages
Deed of Sale in favor of another person. Unless registered with the Land Transportation
Office, the sale -- while valid and binding between the parties -- does not affect third
parties, especially the victims of accidents involving the said transport D. TO LUCITA SUYOM
equipment. Thus, in the present case, petitioner, which is the registered owner, is liable
for the acts of the driver employed by its former lessee who has become the owner of 1. The sum of P5,000.00 for the medical treatment of her two sons.
that vehicle by virtue of an unregistered Deed of Sale.
The sum of P120,000.00 as and for attorneys fees.[4]

Statement of the Case

The Facts
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing
the May 12, 2000 Decision[1] of the Court of Appeals[2] (CA) in CA-GR CV No.
On July 17, 1994, a Fuso Road Tractor driven by Raul Tutor rammed into the
55474. The decretal portion of the Decision reads as follows:
house cum store of Myrna Tamayo located at Pier 18, Vitas, Tondo, Manila. A portion
of the house was destroyed. Pinned to death under the engine of the tractor were
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED for lack Respondent Myrna Tamayos son, Reniel Tamayo, and Respondent Felix Oledans
of merit. The assailed decision, dated May 5, 1997, of the Regional Trial Court of daughter, Felmarie Oledan. Injured were Respondent Oledan himself, Respondent
Manila, Branch 14, in Civil Case No. 95-73522, is Marissa Enano, and two sons of Respondent Lucita Suyom.
hereby AFFIRMED with MODIFICATION that the award of attorneys fees
is DELETED.[3] Tutor was charged with and later convicted of reckless imprudence resulting in
multiple homicide and multiple physical injuries in Criminal Case No. 296094-SA,
Metropolitan Trial Court of Manila, Branch 12.[5]
On the other hand, in Civil Case No. 95-73522, the Regional Trial Court (RTC) of
Manila (Branch 14) had earlier disposed in this wise: Upon verification with the Land Transportation Office, respondents were furnished
a copy of Official Receipt No. 62204139[6] and Certificate of Registration No.
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the 08262797,[7] showing that the registered owner of the tractor was Equitable Leasing
defendant Equitable Leasing Corporation ordering said defendant to pay to the plaintiffs Corporation/leased to Edwin Lim. On April 15, 1995, respondents filed against Raul
the following: Tutor, Ecatine Corporation (Ecatine) and Equitable Leasing Corporation (Equitable) a
Complaint[8] for damages docketed as Civil Case No. 95-73522 in the RTC of Manila,
Branch 14.
A. TO MYRNA TAMAYO
 The trial court, upon motion of plaintiffs counsel, issued an Order dropping Raul
Tutor, Ecatine and Edwin Lim from the Complaint, because they could not be located
and served with summonses.[9] On the other hand, in its Answer with
Counterclaim,[10] petitioner alleged that the vehicle had already been sold to Ecatine
and that the former was no longer in possession and control thereof at the time of the
incident. It also claimed that Tutor was an employee, not of Equitable, but of Ecatine.
After trial on the merits, the RTC rendered its Decision ordering petitioner to pay
actual and moral damages and attorneys fees to respondents. It held that since the
Deed of Sale between petitioner and Ecatine had not been registered with the Land
Transportation Office (LTO), the legal owner was still Equitable.[11] Thus, petitioner was
liable to respondents.[12]
Ruling of the Court of Appeals
Sustaining the RTC, the CA held that petitioner was still to be legally deemed the
owner/operator of the tractor, even if that vehicle had been the subject of a Deed of
Sale in favor of Ecatine on December 9, 1992. The reason cited by the CA was that the
Certificate of Registration on file with the LTO still remained in petitioners name.[13] In
order that a transfer of ownership of a motor vehicle can bind third persons, it must be
duly recorded in the LTO.[14]
The CA likewise upheld respondents claim for moral damages against petitioner
because the appellate court considered Tutor, the driver of the tractor, to be an agent
of the registered owner/operator.[15]
Hence, this Petition.[16]
Issues
In its Memorandum, petitioner raises the following issues for the Courts
consideration:
I of, subject to the caveat[28] that the offended party cannot recover damages twice for
Whether or not the Court of Appeals and the trial court gravely erred when they decided
and held that petitioner [was] liable for damages suffered by private respondents in an
action based on quasi delict for the negligent acts of a driver who [was] not the
employee of the petitioner.
II
Whether or not the Court of Appeals and the trial court gravely erred when they
awarded moral damages to private respondents despite their failure to prove that the
injuries they suffered were brought by petitioners wrongful act.[17]
This Courts Ruling
The Petition has no merit.
First Issue:
Liability for Wrongful Acts
Petitioner contends that it should not be held liable for the damages sustained by
respondents and that arose from the negligence of the driver of the Fuso Road Tractor,
which it had already sold to Ecatine at the time of the accident. Not having employed
Raul Tutor, the driver of the vehicle, it could not have controlled or supervised him.[18]
We are not persuaded. In negligence cases, the aggrieved party may sue the
negligent party under (1) Article 100[19] of the Revised Penal Code, for civil liability ex
delicto; or (2) under Article 2176[20] of the Civil Code, for civil liability ex quasi delicto.[21]
Furthermore, under Article 103 of the Revised Penal Code, employers may be
held subsidiarily liable for felonies committed by their employees in the discharge of the
latters duties.[22] This liability attaches when the employees who are convicted of crimes
committed in the performance of their work are found to be insolvent and are thus
unable to satisfy the civil liability adjudged.[23]
On the other hand, under Article 2176 in relation to Article 2180[24] of the Civil
Code, an action predicated on quasi delict may be instituted against the employer for
an employees act or omission. The liability for the negligent conduct of the subordinate
is direct and primary, but is subject to the defense of due diligence in the selection and
supervision of the employee.[25] The enforcement of the judgment against the employer
for an action based on Article 2176 does not require the employee to be insolvent, since
the liability of the former is solidary -- the latter being statutorily considered a joint
tortfeasor.[26] To sustain a claim based on quasi delict, the following requisites must be
proven: (a) damage suffered by the plaintiff, (b) fault or negligence of the defendant,
and (c) connection of cause and effect between the fault or negligence of the defendant
and the damage incurred by the plaintiff.[27]
These two causes of action (ex delicto or ex quasi delicto) may be availed
the same act or omission or under both causes.[29] Since these two civil liabilities are
distinct and independent of each other, the failure to recover in one will not necessarily
preclude recovery in the other.[30]
In the instant case, respondents -- having failed to recover anything in the criminal
case -- elected to file a separate civil action for damages, based on quasi delict under
Article 2176 of the Civil Code.[31] The evidence is clear that the deaths and the injuries
suffered by respondents and their kins were due to the fault of the driver of the Fuso
tractor.
Dated June 4, 1991, the Lease Agreement[32] between petitioner and Edwin Lim
stipulated that it is the intention of the parties to enter into a FINANCE LEASE
AGREEMENT.[33] Under such scheme, ownership of the subject tractor was to be
registered in the name of petitioner, until the value of the vehicle has been fully paid by
Edwin Lim.[34] Further, in the Lease Schedule,[35] the monthly rental for the tractor was
stipulated, and the term of the Lease was scheduled to expire on December 4, 1992.
After a few months, Lim completed the payments to cover the full price of the
tractor.[36] Thus, on December 9, 1992, a Deed of Sale[37] over the tractor was executed
by petitioner in favor of Ecatine represented by Edwin Lim. However, the Deed was not
registered with the LTO.
We hold petitioner liable for the deaths and the injuries complained of, because it
was the registered owner of the tractor at the time of the accident on July 17,
1994.[38] The Court has consistently ruled that, regardless of sales made of a motor
vehicle, the registered owner is the lawful operator insofar as the public and third
persons are concerned; consequently, it is directly and primarily responsible for the
consequences of its operation.[39] In contemplation of law, the owner/operator of record
is the employer of the driver, the actual operator and employer being considered as
merely its agent.[40] The same principle applies even if the registered owner of any
vehicle does not use it for public service.[41]
Since Equitable remained the registered owner of the tractor, it could not escape
primary liability for the deaths and the injuries arising from the negligence of the
driver.[42]
The finance-lease agreement between Equitable on the one hand and Lim or
Ecatine on the other has already been superseded by the sale. In any event, it does
not bind third persons. The rationale for this rule has been aptly explained in Erezo v.
Jepte,[43] which we quote hereunder:
x x x. The main aim of motor vehicle registration is to identify the owner so that if any
accident happens, or that any damage or injury is caused by the vehicle on the public
highways, responsibility therefor can be fixed on a definite individual, the registered
owner. Instances are numerous where vehicles running on public highways caused
accidents or injuries to pedestrians or other vehicles without positive identification of
the owner or drivers, or with very scant means of identification. It is to forestall these
circumstances, so inconvenient or prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the determination of persons
responsible for damages or injuries caused on public highways.[44]
Further, petitioners insistence on FGU Insurance Corp. v. Court of Appeals is
misplaced.[45] First, in FGU Insurance, the registered vehicle owner, which was
engaged in a rent-a-car business, rented out the car. In this case, the registered owner
of the truck, which is engaged in the business of financing motor vehicle acquisitions,
has actually sold the truck to Ecatine, which in turn employed Tutor. Second, in FGU
Insurance, the registered owner of the vehicle was not held responsible for the
negligent acts of the person who rented one of its cars, because Article 2180 of the
Civil Code was not applicable. We held that no vinculum juris as employer and
employee existed between the owner and the driver.[46] In this case, the registered
owner of the tractor is considered under the law to be the employer of the driver, while
the actual operator is deemed to be its agent.[47] Thus, Equitable, the registered owner
of the tractor, is -- for purposes of the law on quasi delict -- the employer of Raul Tutor,
the driver of the tractor. Ecatine, Tutors actual employer, is deemed as merely an agent
of Equitable.[48]
True, the LTO Certificate of Registration, dated 5/31/91, qualifies the name of the
registered owner as EQUITABLE LEASING CORPORATION/Leased to Edwin Lim.But
the lease agreement between Equitable and Lim has been overtaken by the Deed of
Sale on December 9, 1992, between petitioner and Ecatine. While this Deed does not
affect respondents in this quasi delict suit, it definitely binds petitioner because, unlike
them, it is a party to it.
We must stress that the failure of Equitable and/or Ecatine to register the sale with
the LTO should not prejudice respondents, who have the legal right to rely on the legal
principle that the registered vehicle owner is liable for the damages caused by the
negligence of the driver. Petitioner cannot hide behind its allegation that Tutor was the
employee of Ecatine. This will effectively prevent respondents from recovering their
losses on the basis of the inaction or fault of petitioner in failing to register the sale. The
non-registration is the fault of petitioner, which should thus face the legal consequences
thereof.
Second Issue:
Moral Damages
Petitioner further claims that it is not liable for moral damages, because
respondents failed to establish or show the causal connection or relation between the
factual basis of their claim and their wrongful act or omission, if any. [49]
Moral damages are not punitive in nature, but are designed to compensate[50] and
alleviate in some way the physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury unjustly caused a person.[51] Although incapable of pecuniary computation, moral
damages must nevertheless be somehow proportional to and in approximation of the
suffering inflicted.[52] This is so because moral damages are in the category of an award
designed to compensate the claimant for actual injury suffered, not to impose a penalty
on the wrongdoer.[53]
Viewed as an action for quasi delict, the present case falls squarely within the
purview of Article 2219 (2),[54] which provides for the payment of moral damages in
cases of quasi delict.[55] Having established the liability of petitioner as the registered
owner of the vehicle,[56] respondents have satisfactorily shown the existence of the
factual basis for the award[57] and its causal connection to the acts of Raul Tutor, who
is deemed as petitioners employee.[58] Indeed, the damages and injuries suffered by
respondents were the proximate result of petitioners tortious act or omission.[59]
Further, no proof of pecuniary loss is necessary in order that moral damages may
be awarded, the amount of indemnity being left to the discretion of the court.[60]The
evidence gives no ground for doubt that such discretion was properly and judiciously
exercised by the trial court.[61] The award is in fact consistent with the rule that moral
damages are not intended to enrich the injured party, but to alleviate the moral suffering
undergone by that party by reason of the defendants culpable action.[62]
WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.
 8. Picart v. Smith GR No. L-12219
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.
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.

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
 9. Barredo and Garcia v. Almario GR No. 48006
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein, Fausto
Barredo, liable in damages for the death of Faustino Garcia caused by the negligence
of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon
and Navotas, Province of Rizal, there was a head-on collision between a taxi of the
Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis.
The carretela was overturned, and one of its passengers, 16-year-old boy Faustino
Garcia, suffered injuries from which he died two days later. A criminal action was filed
against Fontanilla in the Court of First Instance of Rizal, and he was convicted and
sentenced to an indeterminate sentence of one year and one day to two years of prision
correccional. The court in the criminal case granted the petition that the right to bring a
separate civil action be reserved. The Court of Appeals affirmed the sentence of the
lower court in the criminal case. Severino Garcia and Timotea Almario, parents of the
deceased on March 7, 1939, brought an action in the Court of First Instance of Manila
against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of
Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the
complaint. This decision was modified by the Court of Appeals by reducing the
damages to P1,000 with legal interest from the time the action was instituted. It is
undisputed that Fontanilla 's negligence was the cause of the mishap, as he was driving
on the wrong side of the road, and at high speed. As to Barredo's responsibility, the
Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he
exercised the diligence of a good father of a family to prevent damage. (See
p. 22, appellant's brief.) In fact it is shown he was careless in employing
Fontanilla who had been caught several times for violation of the Automobile
Law and speeding (Exhibit A) — violation which appeared in the records of
the Bureau of Public Works available to be public and to himself. Therefore,
he must indemnify plaintiffs under the provisions of article 1903 of the Civil
Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the
Revised Penal Code; hence, his liability is only subsidiary, and as there has been no
civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot be
held responsible in the case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure
to exercise all the diligence of a good father of a family in the selection and
supervision of Pedro Fontanilla to prevent damages suffered by the
respondents. In other words, The Court of Appeals insists on applying in the
case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to
a civil liability arising from a crime as in the case at bar simply because
Chapter II of Title 16 of Book IV of the Civil Code, in the precise words of
article 1903 of the Civil Code itself, is applicable only to "those (obligations)
arising from wrongful or negligent acts or commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be
imposed upon him in this action is not a civil obligation arising from a felony
or a misdemeanor (the crime of Pedro Fontanilla,), but an obligation imposed
in article 1903 of the Civil Code by reason of his negligence in the selection or
supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate civil
action against Fausto Barredo, thus making him primarily and directly, responsible
under article 1903 of the Civil Code as an employer of Pedro Fontanilla. The defendant
maintains that Fontanilla's negligence being punishable by the Penal Code, his
(defendant's) liability as an employer is only subsidiary, according to said Penal code,
but Fontanilla has not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the tangle that has, in the
minds of many confused and jumbled together delitos and cuasi delitos, or crimes
under the Penal Code and fault or negligence under articles 1902-1910 of the Civil
Code. This should be done, because justice may be lost in a labyrinth, unless principles
and remedies are distinctly envisaged. Fortunately, we are aided in our inquiry by the
luminous presentation of the perplexing subject by renown jurists and we are likewise
guided by the decisions of this Court in previous cases as well as by the solemn clarity
of the consideration in several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate
legal institution under the Civil Code with a substantivity all its own, and individuality
that is entirely apart and independent from delict or crime. Upon this principle and on
the wording and spirit article 1903 of the Civil Code, the primary and direct responsibility
of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and
from acts and omissions which are unlawful or in which any kind of fault or
negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be
governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervenes shall be subject to the
provisions of Chapter II, Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to another
by his fault or negligence shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible,
not only for personal acts and omissions, but also for those of persons for
whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable for
any damages caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons
subject to their authority and living with them.
Owners or directors of an establishment or business are equally liable for any
damages caused by their employees while engaged in the branch of the
service in which employed, or on occasion of the performance of their duties.
The State is subject to the same liability when it acts through a special agent,
but not if the damage shall have been caused by the official upon whom
properly devolved the duty of doing the act performed, in which case the
provisions of the next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages caused
by their pupils or apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned
therein prove that they are exercised all the diligence of a good father of a
family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may
recover from the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person criminally
liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The exemption
from criminal liability established in subdivisions 1, 2, 3, 5, and 6 of article 12
and in subdivision 4 of article 11 of this Code does not include exemption from
civil liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts
committed by any imbecile or insane person, and 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.
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship, or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose
benefit the harm has been prevented shall be civilly liable in proportion to the
benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for
which each one shall be liable.
When the respective shares can not be equitably determined, even approximately, or
when the liability also attaches to the Government, or to the majority of the inhabitants
of the town, and, in all events, whenever the damage has been caused with the consent
of the authorities or their agents, indemnification shall be made in the manner
prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using
violence or causing the fear shall be primarily liable and secondarily, or, if there be no
such persons, those doing the act shall be liable, saving always to the latter that part of
their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishment. — In default of persons criminally liable,
innkeepers, tavern keepers, and any other persons or corporation shall be
civilly liable for crimes committed in their establishments, in all cases where a
violation of municipal ordinances or some general or special police regulation
shall have been committed by them or their employees.
 Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses lodging therein, or the person, or for the
payment of the value thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing him, of the deposit
of such goods within the inn; and shall furthermore have followed the
directions which such innkeeper or his representative may have given them
with respect to the care of and vigilance over such goods. No liability shall
attach in case of robbery with violence against or intimidation against or
intimidation of persons unless committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability
established in the next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by reckless
imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum
and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act
which would otherwise constitute a grave felony, shall suffer the penalty
of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum
period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be
broad enough to cover the driver's negligence in the instant case, nevertheless article
1093 limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as
article 365 of the Revised Penal Code punishes not only reckless but even simple
imprudence or negligence, the fault or negligence under article 1902 of the Civil Code
has apparently been crowded out. It is this overlapping that makes the "confusion worse
confounded." However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between the civil liability arising
from a crime and the responsibility for cuasi-delitos or culpa extra-contractual. The
same negligent act causing damages may produce civil liability arising from a crime
under article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and
unmistakable. This legal institution is of ancient lineage, one of its early ancestors being
the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminology, this
responsibility is often referred to as culpa aquiliana. The Partidas also contributed to
the genealogy of the present fault or negligence under the Civil Code; for instance, Law
6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que
el non fizo a sabiendas en daño al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article
1089, one of the five sources of obligations is this legal institution of cuasi-
delito or culpa extra-contractual: "los actos . . . en que intervenga cualquier genero de
culpa o negligencia." Then article 1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This portion
of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the
Civil Code, by means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only
if there is a penal law clearly covering them, while the latter, cuasi-delitos, include all
acts in which "any king of fault or negligence intervenes." However, it should be noted
that not all violations of the penal law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws, infraction of the rules of traffic
when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol.
3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts
and the employer's primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica
Española" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y
comprende a diferentes personas. Asi, existe una responsabilidad civil
propiamente dicha, que en ningun casl lleva aparejada responsabilidad
criminal alguna, y otra que es consecuencia indeclinable de la penal que nace
de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises
different persons. Thus, there is a civil responsibility, properly speaking, which
in no case carries with it any criminal responsibility, and another which is a
necessary consequence of the penal liability as a result of every felony or
misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been
a collision between two trains belonging respectively to the Ferrocarril Cantabrico and
the Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal
case, in which the company had been made a party as subsidiarily responsible in civil
damages. The employee had been acquitted in the criminal case, and the employer,
the Ferrocarril del Norte, had also been exonerated. The question asked was whether
the Ferrocarril Cantabrico could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part
(Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos,
todavia menos parece sostenible que exista cosa juzgada acerca de la
obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el
choque de los trenes. El titulo en que se funda la accion para demandar el
resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa
rodeada de notas agravatorias que motivan sanciones penales, mas o menos
severas. La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena misma
atañen al orden publico; por tal motivo vienen encomendadas, de ordinario,
al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos
y menoscabos, el agraviado excusa procurar el ya conseguido desagravio;
pero esta eventual coincidencia de los efectos, no borra la diversidad
originaria de las acciones civiles para pedir indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no
vendrian a cuento y que tiene otro regimen), dimanan, segun el articulo 1902
del Codigo Civil, de toda accion u omision, causante de daños o perjuicios,
en que intervenga culpa o negligencia. Es trivial que acciones semejantes son
ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia
punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al
128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del
mismo, desenvuelven y ordenan la materia de responsabilidades
civiles nacidas de delito, en terminos separados del regimen por ley comun
de la culpa que se denomina aquiliana, por alusion a precedentes legislativos
del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones,
y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y
es necesaria una de las diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las
responsabilidades civiles, entre los que sean por diversos conceptos
culpables del delito o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los delincuentes; pero con
caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean
responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo
1903, dice; La obligacion que impone el articulo anterior es exigible, no solo
por los actos y omisiones propios, sino por los de aquellas personas de
quienes se debe responder; personas en la enumeracion de las cuales figuran
los dependientes y empleados de los establecimientos o empresas, sea por
actos del servicio, sea con ocasion de sus funciones. Por esto acontece, y se
observa en la jurisprudencia, que las empresas, despues de intervenir en las
causas criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero
postulado de nuestro regimen judicial la separacion entre justicia punitiva y
tribunales de lo civil, de suerte que tienen unos y otros normas de fondo en
distintos cuerpos legales, y diferentes modos de proceder, habiendose, por
añadidura, abstenido de asistir al juicio criminal la Compañia del Ferrocarril
Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el choque, no
estuvo sub judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el
veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que tal
accion quedaba legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se redobla el
motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion
para pedir su cumplimiento permanece incolume, extraña a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less
tenable that there should be res judicata with regard to the civil obligation for
damages on account of the losses caused by the collision of the trains. The
title upon which the action for reparation is based cannot be confused with the
civil responsibilities born of a crime, because there exists in the latter,
whatever each nature, a culpa surrounded with aggravating aspects which
give rise to penal measures that are more or less severe. The injury caused
by a felony or misdemeanor upon civil rights requires restitutions, reparations,
or indemnifications which, like the penalty itself, affect public order; for this
reason, they are ordinarily entrusted to the office of the prosecuting attorney;
and it is clear that if by this means the losses and damages are repaired, the
injured party no longer desires to seek another relief; but this coincidence of
effects does not eliminate the peculiar nature of civil actions to ask for
indemnity.
Such civil actions in the present case (without referring to contractual faults
which are not pertinent and belong to another scope) are derived, according
to article 1902 of the Civil Code, from every act or omission causing losses
and damages in which culpa or negligence intervenes. It is unimportant that
such actions are every day filed before the civil courts without the criminal
courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
Code, bearing in mind the spirit and the social and political purposes of that
Code, develop and regulate the matter of civil responsibilities arising from a
crime, separately from the regime under common law, of culpa which is known
as aquiliana, in accordance with legislative precedent of the Corpus Juris. It
would be unwarranted to make a detailed comparison between the former
provisions and that regarding the obligation to indemnify on account of
civil culpa; but it is pertinent and necessary to point out to one of such
differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the
civil responsibilities among those who, for different reasons, are guilty of felony
or misdemeanor, make such civil responsibilities applicable to enterprises and
establishments for which the guilty parties render service, but with subsidiary
character, that is to say, according to the wording of the Penal Code, in default
 of those who are criminally responsible. In this regard, the Civil Code does not
coincide because article 1903 says: "The obligation imposed by the next
preceding article is demandable, not only for personal acts and omissions, but
also for those of persons for whom another is responsible." Among the
persons enumerated are the subordinates and employees of establishments
or enterprises, either for acts during their service or on the occasion of their
functions. It is for this reason that it happens, and it is so observed in judicial
decisions, that the companies or enterprises, after taking part in the criminal
cases because of their subsidiary civil responsibility by reason of the crime,
are sued and sentenced directly and separately with regard to the obligation,
before the civil courts.
Seeing that the title of this obligation is different, and the separation between
punitive justice and the civil courts being a true postulate of our judicial system,
so that they have different fundamental norms in different codes, as well as
different modes of procedure, and inasmuch as the Compaña del Ferrocarril
Cantabrico has abstained from taking part in the criminal case and has
reserved the right to exercise its actions, it seems undeniable that the action
for indemnification for the losses and damages caused to it by the collision
was not sub judice before the Tribunal del Jurado, nor was it the subject of a
sentence, but it remained intact when the decision of March 21 was rendered.
Even if the verdict had not been that of acquittal, it has already been shown
that such action had been legitimately reserved till after the criminal
prosecution; but because of the declaration of the non-existence of the felony
and the non-existence of the responsibility arising from the crime, which was
the sole subject matter upon which the Tribunal del Jurado had jurisdiction,
there is greater reason for the civil obligation ex lege, and it becomes clearer
that the action for its enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which
the Spanish Civil Code is largely based and whose provisions on cuasi-delito or culpa
extra-contractual are similar to those of the Spanish Civil Code, says, referring to article
1384 of the French Civil Code which corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for
another), without including the author of the act. The action against the
principal is accessory in the sense that it implies the existence of a prejudicial
act committed by the employee, but it is not subsidiary in the sense that it can
not be instituted till after the judgment against the author of the act or at least,
that it is subsidiary to the principal action; the action for responsibility (of the
employer) is in itself a principal action. (Laurent, Principles of French Civil Law,
Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430),
declares that the responsibility of the employer is principal and not subsidiary. He
writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones
u omisiones de aquellas personas por las que se debe responder, es
subsidiaria? es principal? Para contestar a esta pregunta es necesario saber,
en primer lugar, en que se funda el precepto legal. Es que realmente se
impone una responsabilidad por una falta ajena? Asi parece a primera vista;
pero semejante afirmacion seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno responde de aquellas que
le son imputables. La responsabilidad de que tratamos se impone con ocasion
de un delito o culpa, pero no por causa de ellos, sino por causa del causi
delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del
dueño o director del establecimiento, del maestro, etc. Cuando cualquiera de
las personas que enumera el articulo citado (menores de edad, incapacitados,
dependientes, aprendices) causan un daño, la ley presume que el padre, el
tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o
evitar el daño. Esta falta es la que la ley castiga. No hay, pues,
responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La idea de que esa
responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts or
omissions of those persons for who one is responsible, subsidiary or principal?
In order to answer this question it is necessary to know, in the first place, on
what the legal provision is based. Is it true that there is a responsibility for the
fault of another person? It seems so at first sight; but such assertion would be
contrary to justice and to the universal maxim that all faults are personal, and
that everyone is liable for those faults that can be imputed to him. The
responsibility in question is imposed on the occasion of a crime or fault, but
not because of the same, but because of the cuasi-delito, that is to say, the
imprudence or negligence of the father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the
father, guardian, teacher, etc. have committed an act of negligence in not
preventing or avoiding the damage. It is this fault that is condemned by the
law. It is, therefore, only apparent that there is a responsibility for the act of
another; in reality the responsibility exacted is for one's own act. The idea that
such responsibility is subsidiary is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo
Civil Español," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de su
propia culpa, doctrina del articulo 1902; mas por excepcion, se responde de
la ajena respecto de aquellas personas con las que media algun nexo o
vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es
directa o es subsidiaria? En el orden penal, el Codigo de esta clase distingue
entre menores e incapacitados y los demas, declarando directa la primera
(articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil,
en el caso del articulo 1903, ha de entenderse directa, por el tenor del articulo
que impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."
 That is to say, one is not responsible for the acts of others, because one is
liable only for his own faults, this being the doctrine of article 1902; but, by
exception, one is liable for the acts of those persons with whom there is a
bond or tie which gives rise to the responsibility. Is this responsibility direct or
subsidiary? In the order of the penal law, the Penal Code distinguishes
between minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the former is direct
(article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme
of the civil law, in the case of article 1903, the responsibility should be
understood as direct, according to the tenor of that articles, for precisely it
imposes responsibility "for the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld
the principles above set forth: that a quasi-delict or culpa extra-contractual is a
separate and distinct legal institution, independent from the civil responsibility arising
from criminal liability, and that an employer is, under article 1903 of the Civil Code,
primarily and directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In
that case, Ramon Lafuente died as the result of having been run over by a street car
owned by the "compañia Electric Madrileña de Traccion." The conductor was
prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil
action against the street car company, paying for damages in the amount of 15,000
pesetas. The lower court awarded damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final
judgment the non-existence of fault or negligence had been declared. The Supreme
Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en el equivocado
supuesto de que el Tribunal a quo, al condonar a la compañia Electrica
Madrileña al pago del daño causado con la muerte de Ramon La fuente
Izquierdo, desconoce el valor y efectos juridicos de la sentencia absolutoria
deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo
cierto que de este han conocido las dos jurisdicciones bajo diferentes as
pectos, y como la de lo criminal declrao dentro de los limites de su
competencia que el hecho de que se trata no era constitutivo de delito por no
haber mediado descuido o negligencia graves, lo que no excluye, siendo este
el unico fundamento del fallo absolutorio, el concurso de la culpa o negligencia
no califacadas, fuente de obligaciones civiles segun el articulo 1902 del
Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los Directores
de establecimientos o empresas por los daños causados por sus
dependientes en determinadas condiciones, es manifesto que la de lo civil, al
conocer del mismo hehco baho este ultimo aspecto y al condenar a la
compañia recurrente a la indemnizacion del daño causado por uno de sus
empleados, lejos de infringer los mencionados textos, en relacion con el
articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente
a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en
lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken
supposition that the trial court, in sentencing the Compañia Madrileña to the
payment of the damage caused by the death of Ramon Lafuente Izquierdo,
disregards the value and juridical effects of the sentence of acquittal rendered
in the criminal case instituted on account of the same act, when it is a fact that
the two jurisdictions had taken cognizance of the same act in its different
aspects, and as the criminal jurisdiction declared within the limits of its
authority that the act in question did not constitute a felony because there was
no grave carelessness or negligence, and this being the only basis of acquittal,
it does no exclude the co-existence of fault or negligence which is not
qualified, and is a source of civil obligations according to article 1902 of the
Civil Code, affecting, in accordance with article 1903, among other persons,
the managers of establishments or enterprises by reason of the damages
caused by employees under certain conditions, it is manifest that the civil
jurisdiccion in taking cognizance of the same act in this latter aspect and in
ordering the company, appellant herein, to pay an indemnity for the damage
caused by one of its employees, far from violating said legal provisions, in
relation with article 116 of the Law of Criminal Procedure, strictly followed the
same, without invading attributes which are beyond its own jurisdiction, and
without in any way contradicting the decision in that cause. (Emphasis
supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the street
car company. This is precisely what happens in the present case: the driver, Fontanilla,
has not been sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence, but the
Supreme Tribunal of Spain said that this did not exclude the co-existence of fault or
negligence, which is not qualified, on the part of the conductor, under article 1902 of
the Civil Code. In the present case, the taxi driver was found guilty of criminal
negligence, so that if he had even sued for his civil responsibility arising from the crime,
he would have been held primarily liable for civil damages, and Barredo would have
been held subsidiarily liable for the same. But the plaintiffs are directly suing Barredo,
on his primary responsibility because of his own presumed negligence — which he did
not overcome — under article 1903. Thus, there were two liabilities of Barredo: first,
the subsidiary one because of the civil liability of the taxi driver arising from the latter's
criminal negligence; and, second, Barredo's primary liability as an employer under
article 1903. The plaintiffs were free to choose which course to take, and they preferred
the second remedy. In so doing, they were acting within their rights. It might be
observed in passing, that the plaintiff choose the more expeditious and effective method
of relief, because Fontanilla was either in prison, or had just been released, and
besides, he was probably without property which might be seized in enforcing any
judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the employer was
held liable civilly, notwithstanding the acquittal of the employee (the conductor) in a
previous criminal case, with greater reason should Barredo, the employer in the case
at bar, be held liable for damages in a civil suit filed against him because his taxi driver
had been convicted. The degree of negligence of the conductor in the Spanish case
cited was less than that of the taxi driver, Fontanilla, because the former was acquitted
in the previous criminal case while the latter was found guilty of criminal negligence and
was sentenced to an indeterminate sentence of one year and one day to two years
of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action
was brought against a railroad company for damages because the station agent,
employed by the company, had unjustly and fraudulently, refused to deliver certain
articles consigned to the plaintiff. The Supreme Court of Spain held that this action was
properly under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud de los hechos
que consigna con relacion a las pruebas del pleito: 1.º, que las expediciones
facturadas por la compañia ferroviaria a la consignacion del actor de las
vasijas vacias que en su demanda relacionan tenian como fin el que este las
devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a su
destino tales mercanias no se quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que la
falta de entrega de estas expediciones al tiempo de reclamarlas el
demandante le originaron daños y perjuicios en cantidad de bastante
importancia como expendedor al por mayor que era de vinos y alcoholes por
las ganancias que dejo de obtener al verse privado de servir los pedidos que
se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro
motivos que integran este recurso, porque la demanda inicial del pleito a que
se contrae no contiene accion que nazca del incumplimiento del contrato de
transporte, toda vez que no se funda en el retraso de la llegada de las
mercancias ni de ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo
de Comercio, en que principalmente descansa el fallo recurrido, sino que se
limita a pedir la reparaction de los daños y perjuicios producidos en el
patrimonio del actor por la injustificada y dolosa negativa del porteador a la
entrega de las mercancias a su nombre consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta claramente sancionada en el articulo
1902 del Codigo Civil, que obliga por el siguiente a la Compañia demandada
como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts
which it declares, in relation to the evidence in the case: (1) that the invoice
issued by the railroad company in favor of the plaintiff contemplated that the
empty receptacles referred to in the complaint should be returned to the
consignors with wines and liquors; (2) that when the said merchandise
reached their destination, their delivery to the consignee was refused by the
station agent without justification and with fraudulent intent, and (3) that the
lack of delivery of these goods when they were demanded by the plaintiff
caused him losses and damages of considerable importance, as he was a
wholesale vendor of wines and liquors and he failed to realize the profits when
he was unable to fill the orders sent to him by the consignors of the
receptacles:
Considering that upon this basis there is need of upholding the four
assignments of error, as the original complaint did not contain any cause of
action arising from non-fulfillment of a contract of transportation, because the
action was not based on the delay of the goods nor on any contractual relation
between the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not applicable;
but it limits to asking for reparation for losses and damages produced on the
patrimony of the plaintiff on account of the unjustified and fraudulent refusal of
the carrier to deliver the goods consigned to the plaintiff as stated by the
sentence, and the carrier's responsibility is clearly laid down in article 1902 of
the Civil Code which binds, in virtue of the next article, the defendant
company, because the latter is connected with the person who caused the
damage by relations of economic character and by administrative hierarchy.
(Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both
the Penal Code and the Civil Code. In that case, the action of the agent was unjustified
and fraudulent and therefore could have been the subject of a criminal action. And yet,
it was held to be also a proper subject of a civil action under article 1902 of the Civil
Code. It is also to be noted that it was the employer and not the employee who was
being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365
[year 1907]), the trial court awarded damages to the plaintiff, a laborer of the defendant,
because the latter had negligently failed to repair a tramway in consequence of which
the rails slid off while iron was being transported, and caught the plaintiff whose leg was
broken. This Court held:
It is contended by the defendant, as its first defense to the action that the
necessary conclusion from these collated laws is that the remedy for injuries
through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured
the arrest of the representative of the company accountable for not repairing
the track, and on his prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject.
Article 1093 of the Civil Code makes obligations arising from faults or
negligence not punished by the law, subject to the provisions of Chapter II of
Title XVI. Section 1902 of that chapter reads:
 "A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the
damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for
the damages caused by the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally
liable for the damages caused by their employees in the service of
the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient
to point out that nowhere in our general statutes is the employer penalized for
failure to provide or maintain safe appliances for his workmen. His obligation
therefore is one 'not punished by the laws' and falls under civil rather than
criminal jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of these
scientific codes, such as is proposed by the defendant, that would rob some
of these articles of effect, would shut out litigants against their will from the
civil courts, would make the assertion of their rights dependent upon the
selection for prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal actions.
Even if these articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the provisions of
the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal),
which, though never in actual force in these Islands, was formerly given a
suppletory or explanatory effect. Under article 111 of this law, both classes of
action, civil and criminal, might be prosecuted jointly or separately, but while
the penal action was pending the civil was suspended. According to article
112, the penal action once started, the civil remedy should be sought
therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced only on private
complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal Code
on the same subject.
An examination of this topic might be carried much further, but the citation of
these articles suffices to show that the civil liability was not intended to be
merged in the criminal nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for a negligent act or
omission, it is not required that the injured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be
regarded as subsidiary in respect of criminal actions against his employees
only while they are in process of prosecution, or in so far as they determine
the existence of the criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not barred thereby
unless by the election of the injured person. Inasmuch as no criminal
proceeding had been instituted, growing our of the accident in question, the
provisions of the Penal Code can not affect this action. This construction
renders it unnecessary to finally determine here whether this subsidiary civil
liability in penal actions has survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in force in the
Philippines.
The difficulty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of the
words of article 1093, "fault or negligence not punished by law," as applied to
the comprehensive definition of offenses in articles 568 and 590 of the Penal
Code. It has been shown that the liability of an employer arising out of his
relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1902 and
1093. More than this, however, it cannot be said to fall within the class of acts
unpunished by the law, the consequence of which are regulated by articles
1902 and 1903 of the Civil Code. The acts to which these articles are
applicable are understood to be those not growing out of pre-existing duties
of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches of
those duties are subject to articles 1101, 1103, and 1104 of the same code. A
typical application of this distinction may be found in the consequences of a
railway accident due to defective machinery supplied by the employer. His
liability to his employee would arise out of the contract of employment, that to
the passengers out of the contract for passage, while that to the injured
bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old
child Salvador Bona brought a civil action against Moreta to recover damages resulting
from the death of the child, who had been run over by an automobile driven and
managed by the defendant. The trial court rendered judgment requiring the defendant
to pay the plaintiff the sum of P1,000 as indemnity: This Court in affirming the judgment,
said in part:
If it were true that the defendant, in coming from the southern part of Solana
Street, had to stop his auto before crossing Real Street, because he had met
 vehicles which were going along the latter street or were coming from the
opposite direction along Solana Street, it is to be believed that, when he again
started to run his auto across said Real Street and to continue its way along
Solana Street northward, he should have adjusted the speed of the auto which
he was operating until he had fully crossed Real Street and had completely
reached a clear way on Solana Street. But, as the child was run over by the
auto precisely at the entrance of Solana Street, this accident could not have
occurred if the auto had been running at a slow speed, aside from the fact that
the defendant, at the moment of crossing Real Street and entering Solana
Street, in a northward direction, could have seen the child in the act of crossing
the latter street from the sidewalk on the right to that on the left, and if the
accident had occurred in such a way that after the automobile had run over
the body of the child, and the child's body had already been stretched out on
the ground, the automobile still moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile entered Solana Street from
Real Street, at a high speed without the defendant having blown the horn. If
these precautions had been taken by the defendant, the deplorable accident
which caused the death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a
criminal case because his negligence causing the death of the child was punishable by
the Penal Code. Here is therefore a clear instance of the same act of negligence being
a proper subject-matter either of a criminal action with its consequent civil liability
arising from a crime or of an entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate
individually of a cuasi-delito or culpa aquiliana under the Civil Code has been fully and
clearly recognized, even with regard to a negligent act for which the wrongdoer could
have been prosecuted and convicted in a criminal case and for which, after such a
conviction, he could have been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine.
In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327,
the parents of the five-year-old child, Purificacion Bernal, brought a civil action to
recover damages for the child's death as a result of burns caused by the fault and
negligence of the defendants. On the evening of April 10, 1925, the Good Friday
procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to attend the same. After the
procession the mother and the daughter with two others were passing along Gran
Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned
by defendants J. V. House, when an automobile appeared from the opposite direction.
The little girl, who was slightly ahead of the rest, was so frightened by the automobile
that she turned to run, but unfortunately she fell into the street gutter where hot water
from the electric plant was flowing. The child died that same night from the burns. The
trial courts dismissed the action because of the contributory negligence of the plaintiffs.
But this Court held, on appeal, that there was no contributory negligence, and allowed
the parents P1,000 in damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he
nevertheless was led to order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from this point that a majority of
the court depart from the stand taken by the trial judge. The mother and her
child had a perfect right to be on the principal street of Tacloban, Leyte, on the
evening when the religious procession was held. There was nothing abnormal
in allowing the child to run along a few paces in advance of the mother. No
one could foresee the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with hot water. The
doctrine announced in the much debated case of Rakes vs. Atlantic Gulf and
Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must
again be enforced. The contributory negligence of the child and her mother, if
any, does not operate as a bar to recovery, but in its strictest sense could only
result in reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied article
1902 of the Civil Code. It is thus that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only punished but also made
civilly liable because of his criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or negligence under article 1902 of the
Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages
for the death of the plaintiff's daughter alleged to have been caused by the negligence
of the servant in driving an automobile over the child. It appeared that the cause of the
mishap was a defect in the steering gear. The defendant Leynes had rented the
automobile from the International Garage of Manila, to be used by him in carrying
passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court
to pay P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment
as to Leynes on the ground that he had shown that the exercised the care of a good
father of a family, thus overcoming the presumption of negligence under article 1903.
This Court said:
As to selection, the defendant has clearly shown that he exercised the care
and diligence of a good father of a family. He obtained the machine from a
reputable garage and it was, so far as appeared, in good condition. The
workmen were likewise selected from a standard garage, were duly licensed
by the Government in their particular calling, and apparently thoroughly
competent. The machine had been used but a few hours when the accident
occurred and it is clear from the evidence that the defendant had no notice,
either actual or constructive, of the defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of
negligence, but also provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage."
 From this article two things are apparent: (1) That when an injury is caused by
the negligence of a servant or employee there instantly arises a presumption
of law that there was negligence on the part of the matter or employer either
in the selection of the servant or employee, or in supervision over him after
the selection, or both; and (2) that presumption is juris tantum and not juris et
de jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil.,
37 [year 1915]). In the latter case, the complaint alleged that the defendant's servant
had so negligently driven an automobile, which was operated by defendant as a public
vehicle, that said automobile struck and damaged the plaintiff's motorcycle. This Court,
applying article 1903 and following the rule in Bahia vs. Litonjua and Leynes, said in
part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner
or director of a business or enterprise and the negligent acts are committed
while the servant is engaged in his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison
vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for
damages brought by Cuison for the death of his seven-year-old son Moises. The little
boy was on his way to school with his sister Marciana. Some large pieces of lumber fell
from a truck and pinned the boy underneath, instantly killing him. Two youths, Telesforo
Binoya and Francisco Bautista, who were working for Ora, an employee of defendant
Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless
negligence and were sentenced accordingly. This Court, applying articles 1902 and
1903, held:
The basis of civil law liability is not respondent superior but the relationship
of pater familias. This theory bases the liability of the master ultimately on his
own negligence and not on that of his servant. (Bahia vs.Litonjua and Leynes
[1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930)
the plaintiff brought an action for damages for the demolition of its wharf, which had
been struck by the steamer Helen C belonging to the defendant. This Court held (p.
526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf
collapsed was a duly licensed captain, authorized to navigate and direct a
vessel of any tonnage, and that the appellee contracted his services because
of his reputation as a captain, according to F. C. Cadwallader. This being so,
we are of the opinion that the presumption of liability against the defendant
has been overcome by the exercise of the care and diligence of a good father
of a family in selecting Captain Lasa, in accordance with the doctrines laid
down by this court in the cases cited above, and the defendant is therefore
absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is
negatived by the six cases above set forth. He is, on the authority of these cases,
primarily and directly responsible in damages under article 1903, in relation to article
1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study
first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision
between a truck of the City of Manila and a street car of the Manila Electric Co. took
place on June 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto
Eustaquio, the motorman, was prosecuted for the crime of damage to property and
slight injuries through reckless imprudence. He was found guilty and sentenced to pay
a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio,
the City of Manila filed an action against the Manila Electric Company to obtain
payment, claiming that the defendant was subsidiarily liable. The main defense was
that the defendant had exercised the diligence of a good father of a family to prevent
the damage. The lower court rendered judgment in favor of the plaintiff. This Court held,
in part, that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the conclusion
that the provisions of the Penal Code govern. The Penal Code in easily
understandable language authorizes the determination of subsidiary liability.
The Civil Code negatives its application by providing that civil obligations
arising from crimes or misdemeanors shall be governed by the provisions of
the Penal Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was not a
wrongful or negligent act or omission not punishable by law. Accordingly, the
civil obligation connected up with the Penal Code and not with article 1903 of
the Civil Code. In other words, the Penal Code affirms its jurisdiction while the
Civil Code negatives its jurisdiction. This is a case of criminal negligence out
of which civil liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to
the Civil Code. Indeed, as pointed out by the trial judge, any different ruling
would permit the master to escape scot-free by simply alleging and proving
that the master had exercised all diligence in the selection and training of its
servants to prevent the damage. That would be a good defense to a strictly
civil action, but might or might not be to a civil action either as a part of or
predicated on conviction for a crime or misdemeanor. (By way of parenthesis,
it may be said further that the statements here made are offered to meet the
argument advanced during our deliberations to the effect that article 0902 of
the Civil Code should be disregarded and codal articles 1093 and 1903
applied.)
It is not clear how the above case could support the defendant's proposition, because
the Court of Appeals based its decision in the present case on the defendant's primary
responsibility under article 1903 of the Civil Code and not on his subsidiary liability
arising from Fontanilla's criminal negligence. In other words, the case of City of Manila
vs. Manila Electric Co., supra, is predicated on an entirely different theory, which is the
subsidiary liability of an employer arising from a criminal act of his employee, whereas
the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen
that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the
defendant. A motorman in the employ of the Manila Electric Company had been
convicted o homicide by simple negligence and sentenced, among other things, to pay
the heirs of the deceased the sum of P1,000. An action was then brought to enforce
the subsidiary liability of the defendant as employer under the Penal Code. The
defendant attempted to show that it had exercised the diligence of a good father of a
family in selecting the motorman, and therefore claimed exemption from civil liability.
But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that
the exemption from civil liability established in article 1903 of the Civil Code
for all who have acted with the diligence of a good father of a family, is not
applicable to the subsidiary civil liability provided in article 20 of the Penal
Code.
The above case is also extraneous to the theory of the defendant in the instant case,
because the action there had for its purpose the enforcement of the defendant's
subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's cause
of action is based on the defendant's primary and direct responsibility under article 1903
of the Civil Code. In fact, the above case destroys the defendant's contention because
that decision illustrates the principle that the employer's primary responsibility under
article 1903 of the Civil Code is different in character from his subsidiary liability under
the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to
recognize the distinction between civil liability arising from a crime, which is governed
by the Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the
Civil Code, and has likewise failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case
need not be set forth. Suffice it to say that the question involved was also civil liability
arising from a crime. Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-
delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a
distinction between civil liability arising from criminal negligence (governed by the Penal
Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil
Code, and that the same negligent act may produce either a civil liability arising from a
crime under the Penal Code, or a separate responsibility for fault or negligence under
articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited
render it inescapable to conclude that the employer — in this case the defendant-
petitioner — is primarily and directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient
to dispose of this case. But inasmuch as we are announcing doctrines that have been
little understood in the past, it might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to
fault or negligence not punished by law, according to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have very little scope and
application in actual life. Death or injury to persons and damage to property through
any degree of negligence — even the slightest — would have to be indemnified only
through the principle of civil liability arising from a crime. In such a state of affairs, what
sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and anomalous. Nor are
we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than
the spirit that giveth life. We will not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made enduring
in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable
doubt is required, while in a civil case, preponderance of evidence is sufficient to make
the defendant pay in damages. There are numerous cases of criminal negligence which
can not be shown beyond reasonable doubt, but can be proved by a preponderance of
evidence. In such cases, the defendant can and should be made responsible in a civil
action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be many
instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and
that is, to sue the driver and exhaust his (the latter's) property first, would be tantamount
to compelling the plaintiff to follow a devious and cumbersome method of obtaining
relief. True, there is such a remedy under our laws, but there is also a more expeditious
way, which is based on the primary and direct responsibility of the defendant under
article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for
civil wrongs, because the procedure indicated by the defendant is wasteful and
productive of delay, it being a matter of common knowledge that professional drivers of
taxis and similar public conveyance usually do not have sufficient means with which to
pay damages. Why, then, should the plaintiff be required in all cases to go through this
roundabout, unnecessary, and probably useless procedure? In construing the laws,
courts have endeavored to shorten and facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers
and their presumed negligence are principles calculated to protect society. Workmen
and employees should be carefully chosen and supervised in order to avoid injury to
the public. It is the masters or employers who principally reap the profits resulting from
the services of these servants and employees. It is but right that they should guarantee
the latter's careful conduct for the personnel and patrimonial safety of others. As
Theilhard has said, "they should reproach themselves, at least, some for their
weakness, others for their poor selection and all for their negligence." And according to
Manresa, "It is much more equitable and just that such responsibility should fall upon
the principal or director who could have chosen a careful and prudent employee, and
not upon the injured person who could not exercise such selection and who used such
employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd
Ed.) Many jurists also base this primary responsibility of the employer on the principle
of representation of the principal by the agent. Thus, Oyuelos says in the work already
cited (Vol. 7, p. 747) that before third persons the employer and employee "vienen a
ser como una sola personalidad, por refundicion de la del dependiente en la de quien
le emplea y utiliza." ("become as one personality by the merging of the person of the
employee in that of him who employs and utilizes him.") All these observations acquire
a peculiar force and significance when it comes to motor accidents, and there is need
of stressing and accentuating the responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the
Civil Code on this subject, which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding of the character and efficacy
of the action for culpa aquiliana, there has grown up a common practice to seek
damages only by virtue of the civil responsibility arising from a crime, forgetting that
there is another remedy, which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective remedy based
on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help
perpetuate this usual course. But we believe it is high time we pointed out to the harm
done by such practice and to restore the principle of responsibility for fault or negligence
under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused
the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that
its waters may no longer be diverted into that of a crime under the Penal Code. This
will, it is believed, make for the better safeguarding of private rights because it re-
establishes an ancient and additional remedy, and for the further reason that an
independent civil action, not depending on the issues, limitations and results of a
criminal prosecution, and entirely directed by the party wronged or his counsel, is more
likely to secure adequate and efficacious redress.

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby
affirmed, with costs against the defendant-petitioner.
 10. Corliss v. Manila Railroad Company 27 SCRA 674
G.R. No. L-21291 March 28, 1969
PRECIOLITA V. CORLISS, plaintiff-appellant,
vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-
being, and with reason. The future, bright with promise, looms ahead. One's powers
are still to be tested, but one feels ready for whatever challenge may come his way.
There is that heady atmosphere of self-confidence, at times carried to excess. The
temptation to take risks is there, ever so often, difficult, if not impossible, to resist. There
could be then a lessening of prudence and foresight, qualities usually associated with
age. For death seems so remote and contingent an event. Such is not always the case
though, and a slip may be attended with consequences at times unfortunate, even fatal.
Some such thought apparently was in the mind of the lower court when it dismissed
the complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss
whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the
victim of a grim tragedy, when the jeep he was driving collided with a locomotive of
defendant-appellee Manila Railroad Company, close to midnight on the evening of Feb
21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the Clark
Air Force Base. In the decision appealed from, the lower court, after summarizing the
evidence, concluded that the deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted to reach the other side, but
unfortunately he became the victim of his own miscalculation." 1
The negligence imputed to defendant-appellee was thus ruled out by the lower court,
satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal direct to
us, the amount sought in the concept of damages reaching the sum of P282,065.40.
An examination of the evidence of record fails to yield a basis for a reversal of the
decision appealed from. We affirm.
According to the decision appealed from, there is no dispute as to the following: "In
December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of
age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time of
the accident, he was driving the fatal jeep; that he was then returning in said jeep,
together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at
the Base Hospital the next day, while the soldier sustained serious physical injuries and
burns." 2
Then came a summary of the testimony of two of the witnesses for plaintiff-appellant.
Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in his
deposition, ..., that at the time of the accident, he also awaiting transportation at the
entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that
while there he saw the jeep coming towards the Base. He said that said jeep slowed
down before reaching the crossing, that it made a brief stop but that it did not stop —
dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted
into first gear and that was what he meant by a brief stop. He also testified that he could
see the train coming from the direction of San Fernando and that he heard a warning
but that it was not sufficient enough to avoid the accident." 3 Also: "Virgilio de la Paz,
another witness of the plaintiff, testified that on the night of February 21, 1957, he was
at the Balibago checkpoint and saw the train coming from Angeles and a jeep going
towards the direction of Clark Field. He stated that he heard the whistle of the
locomotive and saw the collision. The jeep, which caught fire, was pushed forward. He
helped the P.C. soldier. He stated that he saw the jeep running fast and heard the
tooting of the horn. It did not stop at the railroad crossing, according to him." 4
After which reference was made to the testimony of the main witness for defendant-
appellee, Teodorico Capili, "who was at the engine at the time of the mishap," and who
"testified that before the locomotive, which had been previously inspected and found to
be in good condition approached, the crossing, that is, about 300 meters away, he blew
the siren and repeated it in compliance with the regulations until he saw the jeep
suddenly spurt and that although the locomotive was running between 20 and 25
kilometers an hour and although he had applied the brakes, the jeep was caught in the
middle of the tracks." 5
1. The above finding as to the non-existence of negligence attributable to defendant-
appellee Manila Railroad Company comes to us encased in the armor of what
admittedly appears to be a careful judicial appraisal and scrutiny of the evidence of
record. It is thus proof against any attack unless sustained and overwhelming. Not that
it is invulnerable, but it is likely to stand firm in the face of even the most formidable
barrage.
In the more traditional terminology, the lower court judgment has in its favor the
presumption of correctness. It is entitled to great respect. After all, the lower court had
the opportunity of weighing carefully what was testified to and apparently did not neglect
it. There is no affront to justice then if its finding be accorded acceptance subject of
course the contingency of reversal if error or errors, substantial in character, be shown
in the conclusion thus arrived at. It is a fair statement of the governing, principle to say
that the appellate function is exhausted when there is found to be a rational basis for
the result reached by the trial court.
As was held in a 1961 decision: "We have already ruled, that when the credibility of
witnesses is the one at issue, the trial court's judgment as to their degree of credence
deserves serious consideration by this Court." 6 An earlier expression of the same view
is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we find no
reason for rejecting the findings of the court below. The questions raised hinge on
credibility and it is well-settled that in the absence of compelling reasons, its
determination is best left to the trial judge why had the advantage of hearing the parties
testify and observing their demeanor on the witness stand." 7
 In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record
suggests any arbitrary or abusive conduct on the part of the trial judge in the formulation
of the ruling. His conclusion on the matter is sufficiently borne out by the evidence
presented. We are denied, therefore, the prerogative to disturb that finding, consonant
to the time honored tradition of the Tribunal to hold trial judges better situated to make
conclusions on questions of fact'." 8 On this ground alone we can rest the affirmance of
the judgment appealed from.lâwphi1.ñet
2. Nor is the result different even if no such presumption were indulged in and the
matter examined as if we were exercising original and not appellate jurisdiction. The
sad and deplorable situation in which plaintiff-appellant now finds herself, to the
contrary notwithstanding we find no reason for reversing the judgment of the lower
court.
This action is predicated on negligence, the Civil Code making clear that whoever by
act or omission causes damage to another, there being negligence, is under obligation
to pay for the damage done. 9 Unless it could be satisfactorily shown, therefore, that
defendant-appellee was guilty of negligence then it could not be held liable. The crucial
question, therefore, is the existence of negligence.
The above Civil Code provision, which is a reiteration of that found in the Civil Code
of Spain, formerly applicable in this jurisdiction, 10 had been interpreted in earlier
decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., 11 Manresa was cited to
the following effect "'Among the questions most frequently raised and upon which the
majority of cases have been decided with respect to the application of this liability, are
those referring to the determination of the damage or prejudice, and to the fault or
negligence of the person responsible therefor. These are the two indispensable factors
in the obligations under discussion, for without damage or prejudice there can be no
liability, and although this element is present no indemnity can be awarded unless
arising from some person's fault or negligence'."
Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and
United States v. Barias. 13 Cooley' formulation was quoted with approval in both the
Juanillo and Barias decisions. Thus: "Judge Cooley in his work on Torts (3d ed.), Sec.
1324, defines negligence to be: "The failure to observe for the protection of the interests
of another person that degree of care, precaution and vigilance which the circumstance
justly demand whereby such other person suffers injury." There was likewise a reliance
on Ahern v. Oregon Telephone Co. 14 Thus: "Negligence is want of the care required
by the circumstances. It is a relative or comparative, not an absolute term and its
application depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the danger is great, a
high degree of care is necessary, and the failure to observe it is a want of ordinary care
under the circumstances."
To repeat, by such a test, no negligence could be imputed to defendant-appellee, and
the action of plaintiff-appellee must necessary fail. The facts being what they are,
compel the conclusion that the liability sought to be fastened on defendant-appellee
had not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment
appealed from on the ground that there was a failure to appreciate the true situation.
Thus the first three assigned errors are factual in character. The third assigned error
could be summarily disposed of. It would go against the evidence to maintain the view
that the whistle was not sounded and the brakes not applied at a distance of 300 meters
before reaching the crossing.
The first two assigned errors would make much of the failure of the lower court to hold
that the crossing bars not having been put down and there being no guard at the gate-
house, there still was a duty on the part of Corliss to stop his jeep to avoid a collision
and that Teodorico Capili, who drove the engine, was not qualified to do so at the time
of the accident. For one cannot just single out circumstance and then confidently assign
to it decisive weight and significance. Considered separately, neither of the two above
errors assigned would call for a judgment different in character. Nor would a
combination of acts allegedly impressed with negligence suffice to alter the result. The
quantum of proof required still not been met. The alleged errors fail of their said effect.
The case for plaintiff-appellant, such as it had not been improved. There is no
justification for reversing the judgment of the lower court.
It cannot be stressed too much that the decisive considerations are too variable, too
dependent in the lid analysis upon a common sense estimate of the situation as it
presented itself to the parties for us to be able to say that this or that element having
been isolated, negligence is shown. The factors that enter the judgment are too many
and diverse for us to imprison them in a formula sufficient of itself to yield the correct
answer to the multi-faceted problems the question of negligence poses. Every case
must be dependent on its facts. The circumstances indicative of lack of due care must
be judged in the light of what could reasonably be expected of the parties. If the
objective standard of prudence be met, then negligence is ruled out.
In this particular case, it would be to show less than fidelity to the controlling facts to
impute negligence to defendant-appellee. The first three errors assigned certainly do
not call for that conclusion.
4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-
appellant apparently had in mind this portion of the opinion of the lower court: "The
weight of authorities is to the effect that a railroad track is in itself a warning or a signal
of danger to those who go upon it, and that those who, for reasons of their own, ignore
such warning, do so at their own risk and responsibility. Corliss Jr., who undoubtedly
had crossed the checkpoint frequently, if not daily, must have known that locomotive
engines and trains usually pass at that particular crossing where the accident had taken
place." 15
Her assignment of error, however, would single out not the above excerpt from the
decision appealed from but what to her is the apparent reliance of the lower court
on Mestres v. Manila Electric Railroad & Light Co. 16 and United States v. Manlabat &
Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A person
in control of an automobile who crosses a railroad, even at a regular road crossing, and
who does not exercise that precaution and that control over it as to be able to stop the
same almost immediately upon the appearance of a train, is guilty of criminal
negligence, providing a collision occurs and injury results. Considering the purposes
and the general methods adopted for the management of railroads and railroad trains,
we think it is incumbent upon one approaching a railroad crossing to use all of his
faculties of seeing and hearing. He should approach a railroad crossing cautiously and
carefully. He should look and listen and do everything that a reasonably prudent man
would do before he attempts to cross the track." The Mestres doctrine in a suit arising
from a collision between an automobile and a street car is substantially similar. Thus:
"It may be said, however, that, where a person is nearing a street crossing toward which
a car is approaching, the duty is on the party to stop and avoid a collision who can most
readily adjust himself to the exigencies of the case, and where such person can do so
more readily, the motorman has a right to presume that such duty will be performed."
advance of the oncoming train that it was incumbent upon him to avoid a possible
accident — and this consisted simply in stopping his vehicle before the crossing and
allowing the train to move on. A prudent man under similar circumstances would have
acted in this manner. This, unfortunately, Corliss, Jr. failed to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the
complaint, is affirmed. Without pronouncement as to costs.

It is true, as plaintiff-appellant would now allege that there has been a drift away from
the apparent rigid and inflexible doctrine thus set forth in the two above cases
evidenced by Lilius v. Manila Railroad Co., 18 the controlling facts of which, however,
are easily distinguishable from what had been correctly ascertained in the present case.
Such a deviation from the earlier principle announced is not only true of this jurisdiction
but also of the United States.

This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he

had the following to say: "Especially noteworthy in this respect is the attempt Mr. Justice
Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,'
which would require an automobile driver approaching a railroad crossing with an
obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train
is coming to get out of the car. The basic idea behind this is sound enough: it is by no
means proper care to cross a railroad track without taking reasonable precautions
against a train, and normally such precautions will require looking, hearing, and a stop,
or at least slow speed, where the view is obstructed." 19

Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where,
according to Prosser, it being shown that "the only effective stop must be made upon
the railway tracks themselves, in a position of obligation danger, the court disregarded
any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommon
precaution, likely to be futile and sometimes even dangerous,' and saying that the driver
need not always stop. 'Illustrations such as these,' said Mr. Justice Cardozo 'bear
witness to the need for caution in framing standards of behavior that amount to rules of
law.... Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or normal." 21

What Justice Cardozo announced would merely emphasize what was set forth earlier
that each and every, case on questions of negligence is to be decided in accordance
with the peculiar circumstances that present themselves. There can be no hard and
fast rule. There must be that observance of that degree of care, precaution, and
vigilance which the situation demands. Thus defendant-appellee acted. It is undeniable
then that no negligence can rightfully be imputed to it.

What commends itself for acceptance is this conclusion arrived at by the lower court:
"Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of the
deceased and his familiarity with the setup of the checkpoint, the existence of the
tracks; and on the further fact that the locomotive had blown its siren or whistle, which
was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently warned in
 11. People v. Ramirez GR No. L-24084
G.R. No. L-24084 November 3, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
PEDRO RAMIREZ, defendant-appellant.
Vicente Llanes for appellant.
Acting Attorney-General Reyes for appellee.
VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of Ilocos Norte, for the crime
of homicide, to the penalty of fourteen years, eight months and one day of reclusion
temporal, to indemnify the mother of the deceased in the sum of P500 and to pay the
costs.
On the night of February 18, 1923, one Bartolome Quiaoit invited Pedro Ramirez, the
accused herein, Victoriano Ranga, the deceased, and Agustin Menor to hunt in the
mount Balitok of the municipality of Nueva Era, Province of Ilocos Norte. The three last
named proceeded to hunt, leaving Bartolome Quiaoit in a hut approximately 1 kilometer
from the place where the act complained of took place. Upon the hunters having arrived
at a place in mount Balitok, Pedro Ramirez, who was carrying the shotgun of Bartolome
Quiaoit with a lantern, happened to hunt a deer, and then he told his companions to
stay there and watch over the prey while he entered the forest to get it. Thus Victoriano
Ranga and Agusto Menor were waiting when suddenly the report of the shotgun was
heard hitting Victoriano Ranga in the eye and the right temple, who thereafter died on
that night as a result of the wounds.
It does not appear that the matter was judicially investigated until the month of October,
1924, when the complaint was filed which initiated this proceedings.
The only witness who could testify upon the act complained of is naturally Agustin
Menor who was near the deceased when the latter was shot. According to Agustin
Menor, the defendant, after having gotten the first prey, told his companions to stay
there, while he (Pedro Ramirez) was leaving them to go on hunting , and "when he was
far away, he fired the shotgun," hitting the deceased Victoriano Ranga. It must be noted
that the witness Agustin Menor changed his first testimony that "when he was far away,
he fired the shotgun," by saying afterwards, "When Pedro Ramirez was a little away,
he turned toward us and fired." And to make it more specific, the defense moved that
the translation of the testimony of the witness be corrected and the interpreter of the
court caused it to be stated in the record that the true testimony of the witness was as
follows: "Pedro Ramirez caused me and Victoriano Ranga to stay in the mount , telling
us: 'Brothers, you stay here and I am going up to hunt with the lamp' and then after he
has gone ways, he (Pedro Ramirez) turned toward us and fired."
On the other hand the defendant, testifying as witness in his behalf, admits being the
author of the shot which caused the death of Victoriano Ranga; that on that night after
getting the first prey, he told his companions to stay there, watching over the prey, while
he was going away looking for another; and so he did, because otherwise it would have
been hard for them to find the prey, if no one would have been left there; that being far
away from his companions, he seemed to have seen with his lantern something like
the eyes of a deer about fifty meters from him and then he shot it; but much to his
surprise, on approaching what he thought was a deer, it proved to be his companion
Victoriano Ranga. The same witness says that he did not expect to find his companions
in that spot, for he had warned them not to leave, but they left, the place.lawph!1.net
The testimony of the two witnesses as to the distance of the accused from them when
he fired the gun for the second time is contradictory. On the other hand, there is not in
the record any circumstances as to whether or not the deceased and the witness
Agustin Menor were in the same place where they were left by the defendant, when the
latter fired. The night being dark like that when the event took place, the hunter in the
midst of a forest without paths is likely to get confused as to his relative situation; and
after walking around, he may think having gone very far, when in fact he has not, from
the point of departure. and so, judging the case from what the two witnesses Agustin
Menor and Pedro Ramirez have testified to, and taking into account that there existed
no motive whatever for resentment on the part of the defendant against the offended
party, we are compelled to conclude that the act complained of constitutes homicide
through reckless imprudence. The defendant, who was carrying a firearm to hunt at
nighttime with the aid of a lantern, knowing that he had two companions, should have
exercised all the necessary diligence to avoid every undesirable accident, such as the
one that unfortunately occurred on the person of Victoriano Ranga.
While the fact that the defendant, a few days after the event, has offered to the mother
of the deceased a carabao and a horse by way of indemnity, indicates on the one hand
that the defendant admitted the commission of the crime, on the other it shows that he
performed that act without criminal intent and only through a real imprudence.
The defense alleges that the trial court must have solved the reasonable doubt in favor
of the defendant. After considering carefully the evidence and all the circumstances of
the case, we are of the opinion and so hold that the defendant is guilty of the crime of
homicide through reckless imprudence, and must be punished under paragraph 1 of
article 568 of the Penal Code.
Wherefore the penalty of one year and one day of prision correccional, with the
accessories prescribed by the law, must be imposed upon him, and with modification,
the judgment appealed from is affirmed in all other respects, with the costs against the
appellant. So ordered.
 12. McKee v. IAC 211 SCRA 517
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH
MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals
in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its
previous Decision dated 29 November 1983 reversing the Decision of the trial court
which dismissed petitioners' complaints in Civil Case No. 4477 and Civil Case No. 4478
of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled
"Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and
Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and
Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted
the private respondents' counterclaim for moral damages, attorney's fees and litigation
expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a
vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida
Bondoc and caused physical injuries to George Koh McKee, Christopher Koh McKee
and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher
Koh McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No.
4478, while petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103,
who are the wife and children, respectively, of the late Jose Koh, were the plaintiffs in
Civil Case No. 4477. Upon the other hand, private respondents are the owners of the
cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the
truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge
along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a
head-on-collision took place between an International cargo truck, Loadstar, with Plate
No. RF912-T Philippines '76 owned by private respondents, and driven by Ruben
Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose
Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida
Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and
Araceli Koh McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter
of one and a half year old Kim. At the time of the collision, Kim was seated on the lap
of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her
two (2) sons were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred
(200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles
City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the
other hand, was on its way to Angeles City from San Fernando. When the northbound
car was about (10) meters away from the southern approach of the bridge, two (2) boys
suddenly darted from the right side of the road and into the lane of the car. The boys
were moving back and forth, unsure of whether to cross all the way to the other side or
turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane
of the truck; he then switched on the headlights of the car, applied the brakes and
thereafter attempted to return to his lane. Before he could do so, his car collided with
the truck. The collision occurred in the lane of the truck, which was the opposite lane,
on the said bridge.
The incident was immediately reported to the police station in Angeles City;
consequently, a team of police officers was forthwith dispatched to conduct an on the
spot investigation. In the sketch 1 prepared by the investigating officers, the bridge is
described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide — seven
(7) "footsteps" from the center line to the inner edge of the side walk on both
sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft
shoulders and concrete railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the cargo
truck was two (2) "footsteps" from the edge of the right sidewalk, while its left front
portion was touching the center line of the bridge, with the smashed front side of the
car resting on its front bumper. The truck was about sixteen (16) "footsteps" away from
the northern end of the bridge while the car was about thirty-six (36) "footsteps" from
the opposite end. Skid marks produced by the right front tire of the truck measured nine
(9) "footsteps", while skid marks produced by the left front tire measured five (5)
"footsteps." The two (2) rear tires of the truck, however, produced no skid marks.
In his statement to the investigating police officers immediately after the accident,
Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478,
were filed on 31 January 1977 before the then Court of First Instance of Pampanga and
were raffled to Branch III and Branch V of the said court, respectively. In the first, herein
petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the
death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as exemplary
damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses,
P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the
second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection
with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for
funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00
as moral damages, P10,000.00 as exemplary damages and P2,000.00 as
miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the
serious physical injuries suffered, the sum of P100,000.00 as moral damages,
P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of the complaint; and (c) with respect
to George McKee, Jr., in connection with the serious physical injuries suffered, the sum
of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the
following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable
to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital,
and miscellaneous expenses amounting to P5,000.00. They also sought an award of
attorney's fees amounting to 25% of the total award plus traveling and hotel expenses,
with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless
Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to
Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and
was raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was
assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted
that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck
driven by Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as
attorney's fees, P20,000.00 as actual and liquidated damages, P100,000.00 as moral
damages and P30,000.00 as business losses. 6 In Civil Case No. 4478, private
respondents first filed a motion to dismiss on grounds of pendency of another action
(Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang, the
truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477
pending before Branch III of the same court, which was opposed by the plaintiffs. 7 Both
motions were denied by Branch V, then presided over by Judge Ignacio Capulong.
Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they
alleged that Jose Koh was the person "at fault having approached the lane of the truck
driven by Ruben Galang, . . . which was on the right lane going towards Manila and at
a moderate speed observing all traffic rules and regulations applicable under the
circumstances then prevailing;" in their counterclaim, they prayed for an award of
damages as may be determined by the court after due hearing, and the sums of
P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March
1978 a motion to adopt the testimonies of witnesses taken during the hearing of
Criminal Case No. 3751, which private respondents opposed and which the court
denied. 9 Petitioners subsequently moved to reconsider the order denying the motion
for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978;
he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in
Branch III of the court then presided over by Judge Mario Castañeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando
Nuñag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and
Antonio Koh, 11 and offered several documentary exhibits. Upon the other hand, private
respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag
and Roman Dayrit. 12
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud
Samia, Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto
Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel,
Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several
documentary exhibits. 13 Upon the other hand, the defense presented the accused
Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered
documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben
Galang in the aforesaid criminal case. The dispositive portion of the decision reads as
follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
finding the accused Ruben Galang guilty beyond reasonable doubt
of the crime charged in the information and after applying the
provisions of Article 365 of the Revised Penal Code and
indeterminate sentence law, this Court, imposes upon said accused
Ruben Galang the penalty of six (6) months of arresto mayor as
minimum to two (2) years, four (4) months and one (1) day of prision
correccional as maximum; the accused is further sentenced to pay
and indemnify the heirs of Loida Bondoc the amount of P12,000.00
as indemnity for her death; to reimburse the heirs of Loida Bondoc
the amount of P2,000.00 representing the funeral expenses; to pay
the heirs of Loida Bondoc the amount of P20,000.00 representing
her loss of income; to indemnify and pay the heirs of the deceased
Jose Koh the value of the car in the amount of P53,910.95, and to
pay the costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the same day,
counsel for petitioners filed with Branch III of the court — where the two (2) civil cases
were pending — a manifestation to that effect and attached thereto a copy of the
decision. 16
Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on
12 November 1980 and awarded the private respondents moral damages, exemplary
damages and attorney's fees. 17 The dispositive portion of the said decision reads as P 16,000.00 for the lot and tomb (Exhs. U and U-
follows: 1)
P 4,000.00 expenses for holding a wake (p. 9, tsn
WHEREFORE, finding the preponderance of evidence to be in favor April 19, 1979)
of the defendants and against the plaintiffs, these cases are hereby P 950.00 for the casket (Exh. M)
ordered DISMISSED with costs against the plaintiffs. The defendants P 375.00 for the vault services (Exhs. V and V-1)
had proven their counter-claim, thru evidences (sic) presented and
unrebutted. Hence, they are hereby awarded moral and exemplary For the death of Kim Koh McKee:
damages in the amount of P100,000.00 plus attorney's fee of
P15,000.00 and litigation expenses for (sic) P2,000.00. The actual P 50,000.00 as moral damages
damages claimed for (sic) by the defendants is (sic) hereby P 12,000.00 as death indemnity
dismissing for lack of proof to that effect (sic). 18 P 1,000.00 for the purchase of the burial lot (Exh.
M)
A copy of the decision was sent by registered mail to the petitioners on 28 November P 950.00 for funeral services (Exh. M-1)
1980 and was received on 2 December 1980. 19 P 375.00 for vault services (Exhs. V and V-1)

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. For the physical injuries suffered by George Koh McKee:
The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's
Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately P 25,000.00 as moral damages
appealed the 12 November 1980 decision to the appellate court. The appeals were P 672.00 for Clark Field Hospital (Exh. E)
docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and P 4,384.00 paid to Angeles Medical Clinic (Exhs.
were assigned to the Fourth Civil Cases Division. D, D-1 and
D-2)
On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. P 1,555.00 paid to St. Francis Medical Center
24764-CR affirming the conviction of Galang. 21 The dispositive portion of the decision (Exhs. B and B-1)
reads:
For the physical injuries suffered by Araceli Koh McKee:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming
pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang P 25,000.00 as moral damages
pinagbabayad ng gugol ng paghahabol. P 1,055.00 paid to St. Francis Medical Center
(Exhs. G and
A motion for reconsideration of the decision was denied by the respondent Court in G-1)
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was P 75.00 paid to St. Francis Medical Center (Exhs.
filed with this Court; said petition was subsequently denied. A motion for its G-2 and G-3)
reconsideration was denied with finality in the Resolution of 20 April 1983. 24 P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)
On 29 November 1983, respondent Court, by then known as the Intermediate Appellate
Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and For the physical injuries suffered by Christopher Koh McKee:
69041, 25 the dispositive portion of which reads:
P 10,000.00 as moral damages
WHEREFORE, the decision appealed from it hereby reversed and P 1,231.10 to St. Francis Medical Center (Exhs. L
set aside and another one is rendered, ordering defendants- and L-1)
appellees to pay plaintiffs-appellants as follows: P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

For the death of Jose Koh: In addition, We award P10,000.00 as counsel (sic) fees in Civil Case
No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case
P 50,000.00 as moral damages No. 4478.
P 12,000.00 as death indemnity
 No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it was
Ruben Galang's inattentiveness or reckless imprudence which caused the accident.
The appellate court further said that the law presumes negligence on the part of the
defendants (private respondents), as employers of Galang, in the selection and
supervision of the latter; it was further asserted that these defendants did not allege in
their Answers the defense of having exercised the diligence of a good father of a family
in selecting and supervising the said employee.27 This conclusion of reckless
imprudence is based on the following findings of fact:
In the face of these diametrically opposed judicial positions, the
determinative issue in this appeal is posited in the fourth assigned
error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF
THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED
ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE
RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:
Q What happened after that, as you approached
the bridge?
A When we were approaching the bridge, two (2)
boys tried to cross the right lane on the right side
of the highway going to San Fernando. My father,
who is (sic) the driver of the car tried to avoid the
two (2) boys who were crossing, he blew his horn
and swerved to the left to avoid hitting the two (2)
boys. We noticed the truck, he switched on the
headlights to warn the truck driver, to slow down
to give us the right of way to come back to our right
lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to
go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic), sir.
(tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in
these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by
the herein accused, Ruben Galang did not reduce
its speed before the actual impact of collision (sic)
as you narrated in this Exhibit "1," how did you
know (sic)?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right
lane on side (sic) of the highway, sir. (tsn. pp. 33-
34 July 22, 1977) or (Exhibit "O" in these Civil
Cases) (pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following
facts and circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco,
declared that the truck stopped only when it had already collided with
the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the
criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness
because he was one of the first to arrive at the scene of the accident.
As a matter of fact, he brought one of the injured passengers to the
hospital.
We are not prepared to accord faith and credit to defendants'
witnesses, Zenaida Soliman, a passenger of the truck, and Roman
Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary
course of events people usually take the side of the person with
whom they are associated at the time of the accident, because, as a
general rule, they do not wish to be identified with the person who
was at fault. Thus an imaginary bond is unconsciously created
among the several persons within the same group (People vs.
Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is an
accommodation witness. He did not go to the succor of the injured
persons. He said he wanted to call the police authorities about the
mishap, but his phone had no dial tone. Be this (sic) as it may, the
trial court in the criminal case acted correctly in refusing to believe
Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim that
Galang stopped his truck at a safe distance from the car, according
to plaintiffs (p. 25, Appellants' Brief). This contention of appellants
was completely passed sub-silencio or was not refuted by appellees
in their brief. Exhibit 2 is one of the exhibits not included in the record.
According to the Table of Contents submitted by the court below,
said Exhibit 2 was not submitted by defendants-appellees. In this
light, it is not far-fetched to surmise that Galang's claim that he
stopped was an eleventh-hour desperate attempt to exculpate
himself from imprisonment and damages.
3. Galang divulged that he stopped after seeing the car about 10
meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite
of the fact that you admitted that the road is
straight and you may be able to (sic) see 500-1000
meters away from you any vehicle, you first saw
that car only about ten (10) meters away from you
for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters
away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under
your oath that you have (sic) not noticed it before
that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979).
(p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that
Galang stopped only because of the impact. At ten (10) meters away,
with the truck running at 30 miles per hour, as revealed in Galang's
affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to
avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and not because
he waited for Jose Koh to return to his proper lane. The police
investigator, Pfc. Fernando L. Nuñag, stated that he found skid
marks under the truck but there were not (sic) skid marks behind the
truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks
show (sic) that the truck was speeding. Since the skid marks were
found under the truck and none were found at the rear of the truck,
the reasonable conclusion is that the skid marks under the truck were
caused by the truck's front wheels when the trucks (sic) suddenly
stopped seconds before the mishap in an endeavor to avoid the
same. But, as aforesaid, Galang saw the car at barely 10 meters
away, a very short distance to avoid a collision, and in his futile
endeavor to avoid the collision he abruptly stepped on his brakes but
the smashup happened just the same.
For the inattentiveness or reckless imprudence of Galang, the law
presumes negligence on the part of the defendants in the selection
of their driver or in the supervision over him. Appellees did not allege
such defense of having exercised the duties of a good father of a
family in the selection and supervision of their employees in their
answers. They did not even adduce evidence that they did in fact
have methods of selection and programs of supervision. The
inattentiveness or negligence of Galang was the proximate cause of
the mishap. If Galang's attention was on the highway, he would have
sighted the car earlier or at a very safe distance than (sic) 10 meters.
He proceeded to cross the bridge, and tried to stop when a collision
was already inevitable, because at the time that he entered the
bridge his attention was not riveted to the road in front of him.
On the question of damages, the claims of appellants were amply
proven, but the items must be reduced. 28
A motion for reconsideration alleging improper appreciation of the facts was
subsequently filed by private respondents on the basis of which the respondent Court,
in its Resolution of 3 April 1984, 29 reconsidered and set aside its 29 November 1983
decision and affirmed in toto the trial court's judgment of 12 November 1980. A motion
to reconsider this Resolution was denied by the respondent Court on 4 July 1984.30
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN
IT TOTALLY REVERSED ITS DECISION BY MERELY BASING IT
FROM (sic) A MERE "PRESUMPTION," TOTALLY
DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S
ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY
COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic),
FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED
AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT
COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE
CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS,
CONJECTURES AND WITHOUT SURE FOUNDATION IN THE
EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN
EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS
HONORABLE COURT BY STATING AMONG OTHERS, "IT
CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN
THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK
INVOLVED IN THE ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION
AND MADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD:
"IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO
PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE
OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE
RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR;
COMMITTED GRAVE ABUSE OF DISCRETION AND CITED
ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE
CASES.
V proceed independently of the criminal prosecution, and shall require only a
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS
DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL
COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY
TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY
THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND
JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE
OF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED
DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID
AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS,
AND SAID AWARD IS NOT ALLOWED BY LAW AND THE
CONSISTENT DECISIONS OF THIS HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE
OF DISCRETION AND GRAVELY ERRED WHEN IT
ERRONEOUSLY SET ASIDE ITS DECISION AWARDING
DAMAGES TO PETITIONERS WHICH IS CLEARLY IN
ACCORDANCE WITH THE EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to Comment
on the petition. 32 After the said Comment 33 was filed, petitioners submitted a
Reply 34 thereto; this Court then gave due course to the instant petitions and required
petitioners to file their Brief, 35 which they accordingly complied with.
There is merit in the petition. Before We take on the main task of dissecting the
arguments and counter-arguments, some observations on the procedural vicissitudes
of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising
from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were
filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was eventually
consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court. The
records do not indicate any attempt on the part of the parties, and it may therefore be
reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with
the civil cases, or vice-versa. The parties may have then believed, and understandably
so, since by then no specific provision of law or ruling of this Court expressly allowed
such a consolidation, that an independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be
consolidated with the criminal case. Indeed, such consolidation could have been
farthest from their minds as Article 33 itself expressly provides that the "civil action shall
preponderance of evidence." Be that as it may, there was then no legal impediment
against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to
avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear
congested dockets to simplify the work of the trial court, or in short, attain justice with
the least expense to the parties litigants, 36 would have easily sustained a
consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2)
judges appreciating, according to their respective orientation, perception and perhaps
even prejudice, the same facts differently, and thereafter
rendering conflicting decisions. Such was what happened in this case. It should not,
hopefully, happen anymore. In the recent case of Cojuangco vs. Court or
Appeals, 37 this Court held that the present provisions of Rule 111 of the Revised Rules
of Court allow a consolidation of an independent civil action for the recovery of civil
liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final judgment has been rendered in
that criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang
guilty of reckless imprudence, although already final by virtue of the denial by no less
than this Court of his last attempt to set aside the respondent Court's affirmance of the
verdict of conviction, has no relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence
in a quasi-delict is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. And, as more concretely stated in the concurring
opinion of Justice J.B.L. Reyes, "in the case of independent civil actions under the new
Civil Code, the result of the criminal case, whether acquittal or conviction, would be
entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs.
Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions
mentioned in Article 33, permitted in the same manner to be filed
separately from the criminal case, may proceed similarly regardless
of the result of the criminal case.
Indeed, when the law has allowed a civil case related to a criminal
case, to be filed separately and to proceed independently even
during the pendency of the latter case, the intention is patent to make
the court's disposition of the criminal case of no effect whatsoever on
the separate civil case. This must be so because the offenses
specified in Article 33 are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a separate civil
action because of the distinct separability of their respective juridical
cause or basis of action . . . .
What remains to be the most important consideration as to why the decision in the
criminal case should not be considered in this appeal is the fact that private
respondents were not parties therein. It would have been entirely different if the
petitioners' cause of action was for damages arising from a delict, in which case private
respondents' liability could only be subsidiary pursuant to Article 103 of the Revised
Penal Code. In the absence of any collusion, the judgment of conviction in the criminal
case against Galang would have been conclusive in the civil cases for the subsidiary
liability of the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue raised in this petition is
whether or not respondent Court's findings in its challenged resolution are supported
by evidence or are based on mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an
appeal by certiorari under Rule 45 of the Revised Rules of Court, only questions of law
may be raised. The resolution of factual issues is the function of the lower courts whose
findings on these matters are received with respect and are, as a rule, binding on this
Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the trial
courts and the Court of Appeals may be set aside when such findings are not supported
by the evidence or when the trial court failed to consider the material facts which would
have led to a conclusion different from what was stated in its judgment. 43 The same is
true where the appellate court's conclusions are grounded entirely on conjectures,
speculations and surmises 44 or where the conclusions of the lower courts are based
on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the
aforementioned exceptions as the findings and conclusions of the trial court and the
respondent Court in its challenged resolution are not supported by the evidence, are
based on an misapprehension of facts and the inferences made therefrom are
manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the
correct findings of fact.
In the assailed resolution, the respondent Court held that the fact that the car improperly
invaded the lane of the truck and that the collision occurred in said lane gave rise to the
presumption that the driver of the car, Jose Koh, was negligent. On the basis of this
presumed negligence, the appellate court immediately concluded that it was Jose Koh's
negligence that was the immediate and proximate cause of the collision. This is an
unwarranted deduction as the evidence for the petitioners convincingly shows that the
car swerved into the truck's lane because as it approached the southern end of the
bridge, two (2) boys darted across the road from the right sidewalk into the lane of the
car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached
the bridge?
A When we were approaching the bridge, two (2)
boys tried to cross the right lane on the right side
of the highway going to San Fernando. My father,
who is (sic) the driver of the car tried to avoid the
two (2) boys who were crossing, he blew his horn
and swerved to the left to avoid hitting the two (2)
boys. We noticed the truck, he switched on the
headlights to warn the truck driver, to slow down
to give us the right of way to come back to our right
lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
 Q What happened after that?
A After avoiding the two (2) boys, the car tried to
go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic),
sir. 46
Her credibility and testimony remained intact even during cross examination. Jose
Koh's entry into the lane of the truck was necessary in order to avoid what was, in his
mind at that time, a greater peril — death or injury to the two (2) boys. Such act can
hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate
Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which
a prudent and reasonable man would not do (Black's Law Dictionary,
Fifth Edition, 930), or as Judge Cooley defines it, "(T)he failure to
observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury." (Cooley on
Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy
years ago but still a sound rule, (W)e held:
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that (reasonable care and
caution which an ordinarily prudent person would
have used in the same situation?) If not, then he is
guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamiliasof
the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required by the circumstances. It
is a relative or comparative, not an absolute, term and its application
depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the
danger is great, a high degree of care is necessary, and the failure
to observe it is a want of ordinary care under the circumstances.
(citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts obtaining
in this case, it is manifest that no negligence could be imputed to Jose Koh. Any
reasonable and ordinary prudent man would have tried to avoid running over the two
boys by swerving the car away from where they were even if this would mean entering
the opposite lane. Avoiding such immediate peril would be the natural course to take
particularly where the vehicle in the opposite lane would be several meters away and
could very well slow down, move to the side of the road and give way to the oncoming
car. Moreover, under what is known as the emergency rule, "one who suddenly finds
himself in a place of danger, and is required to act without time to consider the best
means that may be adopted to avoid the impending danger, is not guilty of negligence,
if he fails to adopt what subsequently and upon reflection may appear to have been a
better method, unless the emergency in which he finds himself is brought about by his
own negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find
that Jose Koh adopted the best means possible in the given situation to avoid hitting
them. Applying the above test, therefore, it is clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his
negligence was the proximate cause of the collision. Proximate cause has been defined
as:
. . . that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without
which the result would not have occurred. And more
comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first
event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that
an injury to some person might probably result therefrom. 50
Applying the above definition, although it may be said that the act of Jose Koh, if at all
negligent, was the initial act in the chain of events, it cannot be said that the same
caused the eventual injuries and deaths because of the occurrence of a sufficient
intervening event, the negligent act of the truck driver, which was the actual cause of
the tragedy. The entry of the car into the lane of the truck would not have resulted in
the collision had the latter heeded the emergency signals given by the former to slow
down and give the car an opportunity to go back into its proper lane. Instead of slowing
down and swerving to the far right of the road, which was the proper precautionary
measure under the given circumstances, the truck driver continued at full speed
towards the car. The truck driver's negligence becomes more apparent in view of the
fact that the road is 7.50 meters wide while the car measures 1.598 meters and the
truck, 2.286 meters, in width. This would mean that both car and truck could pass side
by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a
level sidewalk which could have partially accommodated the truck. Any reasonable
man finding himself in the given situation would have tried to avoid the car instead of
meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck
was running at 30 miles (48 kilometers) per hour along the bridge while the maximum
speed allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185
of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the
mishap, he was violating any traffic regulation. We cannot give credence to private
respondents' claim that there was an error in the translation by the investigating officer
of the truck driver's response in Pampango as to whether the speed cited was in
kilometers per hour or miles per hour. The law presumes that official duty has been
regularly performed; 53 unless there is proof to the contrary, this presumption holds. In
the instant case, private respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly established through the earlier quoted
testimony of petitioner Araceli Koh McKee which was duly corroborated by the
testimony of Eugenio Tanhueco, an impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by
the herein accused, Ruben Galang did not reduce
its speed before the actual impact of collision as
you narrated in this Exhibit "1," how did you know?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right
lane on side (sic) of the highway, sir. (tsn, pp. 33-
34, July 22, 1977) or (Exhibit; "O" in these Civil
Cases) (pp. 30-31, Appellants' Brief)54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you
know what happened?
A I saw the truck and a car collided (sic), sir, and I
went to the place to help the victims. (tsn. 28, April
19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of
the impact, will you tell us if the said truck ever
stopped?
A I saw it stopped (sic) when it has (sic) already
collided with the car and it was already motionless.
(tsn. 31, April 19, 1979; Emphasis Supplied). (p.
27, Appellants' Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the
proper measures and degree of care necessary to avoid the collision which was the
proximate cause of the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds
application here. Last clear chance is a doctrine in the law of torts which states that the
contributory negligence of the party injured will not defeat the claim for damages if it is
shown that the defendant might, by the exercise of reasonable care and prudence,
have avoided the consequences of the negligence of the injured party. In such cases,
the person who had the last clear chance to avoid the mishap is considered in law
solely responsible for the consequences thereof.56
In Bustamante vs. Court of Appeals, 57
We held:
The respondent court adopted the doctrine of "last clear chance."
The doctrine, stated broadly, is that the negligence of the plaintiff
does not preclude a recovery for the negligence of the defendant
where it appears that the defendant, by exercising reasonable care
and prudence, might have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff's negligence. In other words, the
doctrine of last clear chance means that even though a person's own
acts may have placed him in a position of peril, and an injury results,
the injured person is entitled to recovery (sic). As the doctrine is
usually stated, a person who has the last clear chance or opportunity
of avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is
considered in law solely responsible for the consequences of the
accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is
held liable to a negligent plaintiff, or even to a plaintiff who has been
grossly negligent in placing himself in peril, if he, aware of the
plaintiff's peril, or according to some authorities, should have been
aware of it in the reasonable exercise of due care, had in fact an
opportunity later than that of the plaintiff to avoid an accident (57 Am.
Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:
 The doctrine of last clear chance was defined by this Court in the
case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in
this wise:
The doctrine of the last clear chance simply,
means that the negligence of a claimant does not
preclude a recovery for the negligence of
defendant where it appears that the latter, by
exercising reasonable care and prudence, might
have avoided injurious consequences to claimant
notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty
of prior or antecedent negligence but the defendant, who had the last
fair chance to avoid the impending harm and failed to do so, is made
liable for all the consequences of the accident notwithstanding the
prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918);
Glan People's Lumber and Hardware, et al. vs. Intermediate
Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May, 18, 1989]. The subsequent negligence of the defendant
in failing to exercise ordinary care to avoid injury to plaintiff becomes
the immediate or proximate cause of the accident which intervenes
between the accident and the more remote negligence of the plaintiff,
thus making the defendant liable to the plaintiff [Picart v.
Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose
of making a defendant liable to a plaintiff who was guilty of prior or
antecedent negligence, although it may also be raised as a defense
to defeat claim (sic) for damages.
assigned tasks, even though the former are not engaged in any
business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence
of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the selection and
supervision of employees. 60 The answers of the private respondents in Civil Cases
Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove
it.
The respondent Court was then correct in its Decision of 29 November 1983 in
reversing the decision of the trial court which dismissed Civil Cases Nos. 4477 and
4478. Its assailed Resolution of 3 April 1984 finds no sufficient legal and factual
moorings.
In the light of recent decisions of this Court, 61 the indemnity for death must, however,
be increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the
respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983
in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the modification that the
indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of
Jose Koh and Kim Koh McKee.
Costs against private respondents.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the SO ORDERED.
truck driver's negligence in failing to exert ordinary care to avoid the collision which
was, in law, the proximate cause of the collision. As employers of the truck driver, the
private respondents are, under Article 2180 of the Civil Code, directly and primarily
liable for the resulting damages. The presumption that they are negligent flows from
the negligence of their employee. That presumption, however, is only juris
tantum, not juris et de jure. 59 Their only possible defense is that they exercised all the
diligence of a good father of a family to prevent the damage. Article 2180 reads as
follows:

The obligation imposed by Article 2176 is demandable not only for

one's own acts or omissions, but also for those of persons for whom
one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their

employees and household helpers acting within the scope of their
 13. Manila Electric Co. V. Remoquillo 99 Phil 117
[G.R. No. L-8328. May 18, 1956.]
MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his
own behalf and as guardian of the minors MANUEL, BENJAMIN, NESTOR,
MILAGROS, CORAZON, CLEMENTE and AURORA, all surnamed MAGNO,
SALUD MAGNO, and the COURT OF APPEALS (Second Division), Respondents.
DECISION
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his
stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said
to be in a leaking condition. The “media agua” was just below the window of the third
story. Standing on said “media agua”, Magno received from his son thru that window a
3’ X 6’ galvanized iron sheet to cover the leaking portion, turned around and in doing
so the lower end of the iron sheet came into contact with the electric wire of the Manila
Electric Company (later referred to as the Company) strung parallel to the edge of the
“media agua” and 2 1/2 feet from it, causing his death by electrocution. His widow and
children fled suit to recover damages from the company. After hearing, the trial court
rendered judgment in their favor — P10,000 as compensatory damages; chan
roblesvirtualawlibraryP784 as actual damages; chan roblesvirtualawlibraryP2,000 as
moral and exemplary damages; chan roblesvirtualawlibraryand P3,000 as attorney’s
fees, with costs. On appeal to the Court of Appeals, the latter affirmed the judgment
with slight modification by reducing the attorney’s fees from P3,000 to P1,000 with
costs. The electric company has appealed said decision to us.
The findings of fact made by the Court of Appeals which are conclusive are stated in
the following portions of its decision which we reproduce below:
“The electric wire in question was an exposed, uninsulated primary wire stretched
between poles on the street and carrying a charge of 3,600 volts. It was installed there
some two years before Peñaloza’s house was constructed. The record shows that
during the construction of said house a similar incident took place, although fortunate]y
with much less tragic consequences. A piece of wood which a carpenter was holding
happened to come in contact with the same wire, producing some sparks. The owner
of the house forthwith complained to Defendant about the danger which the wire
presented, and as a result Defendant moved one end of the wire farther from the house
by means of a brace, but left the other end where it was.
“At any rate, as revealed by the ocular inspection of the premises ordered by the trial
court, the distance from the electric wire to the edge of the ‘media agua’ on which the
deceased was making repairs was only 30 inches or 2 1/2 feet. Regulations of the City
of Manila required that ‘all wires be kept three feet from the
building.’ Appellant contends that in applying said regulations to the case at bar the
reckoning should not be from the edge of the ‘media agua’ but from the side of the
house and that, thus measured, the distance was almost 7 feet, or more then the
minimum prescribed. This contention is manifestly groundless, for not only is a ‘media
agua’ an integral part of the building to which it is attached but to exclude it in measuring
the distance would defeat the purpose of the regulation. Appellant points out,
nevertheless, that even assuming that the distance, within the meaning of the city
regulations, should be measured from the edge of the ‘media agua’, the fact that in the
case of the house involved herein such distance was actually less than 3 feet was due
to the fault of the owner of said house, because the city authorities gave him a permit
to construct a ‘media agua’ only one meter or 39 1/2 inches wide, but instead he built
one having a width of 65 3/4 inches, 17 3/8 inches more than the width permitted by
the authorities, thereby reducing the distance to the electric wire to less than the
prescribed minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in the permit given to
him by the city authorities for the construction of the ‘media agua’, and that if he had
not done so Appellantswire would have been 11 3/8 (inches) more than the required
distance of three feet from the edge of the ‘media agua’. It is also a fact, however, that
after the ‘media agua’ was constructed the owner was given a final permit of occupancy
of the house cralaw .
“ cralaw The wire was an exposed, high tension wire carrying a load of 3,600 volts.
There was, according to Appellant, no insulation that could have rendered it safe, first,
because there is no insulation material in commercial use for such kind of wire; chan
roblesvirtualawlibraryand secondly, because the only insulation material that may be
effective is still in the experimental stage of development and, anyway, its costs would
be prohibitive… ”
The theory followed by the appellate court in finding for the Plaintiff is that although the
owner of the house in constructing the “media agua” in question exceeded the limits
fixed in the permit, still, after making that “media agua”, its construction though illegal,
was finally approved because he was given a final permit to occupy the house; chan
roblesvirtualawlibrarythat it was the company that was at fault and was guilty of
negligence because although the electric wire in question had been installed long
before the construction of the house and in accordance with the ordinance fixing a
minimum of 3 feet, mere compliance with the regulations does not satisfy the
requirement of due diligence nor avoid the need for adopting such other precautionary
measures as may be warranted; that negligence cannot be determined by a simple
matter of inches; that all that the city did was to prescribe certain minimum conditions
and that just because the ordinance required that primary electric wires should be not
less than 3 feet from any house, the obligation of due diligence is not fulfilled by placing
such wires at a distance of 3 feet and one inch, regardless of other factors. The
appellate court, however, refrained from stating or suggesting what other precautionary
measures could and should have been adopted.
After a careful study and discussion of the case and the circumstances surrounding the
same, we are inclined to agree to the contention of Petitioner Company that the death
of Magno was primarily caused by his own negligence and in some measure by the too
close proximity of the “media agua” or rather its edge to the electric wire of the company
by reason of the violation of the original permit given by the city and the subsequent
approval of said illegal construction of the “media agua”. We fail to see how the
Company could be held guilty of negligence or as lacking in due diligence. Although
the city ordinance called for a distance of 3 feet of its wires from any building, there was
actually a distance of 7 feet and 2 3/4 inches of the wires from the side of the house of
Peñaloza. Even considering said regulation distance of 3 feet as referring not to the
side of a building, but to any projecting part thereof, such as a “media agua”, had the
house owner followed the terms of the permit given him by the city for the construction
of his “media agua”, namely, one meter or 39 3/8 inches wide, the distance from the
wires to the edge of said “media agua” would have been 3 feet and 11 3/8 inches. In
fixing said one meter width for the “media agua” the city authorities must have wanted
to preserve the distance of at least 3 feet between the wires and any portion of a
building. Unfortunately, however, the house owner disregarding the permit, exceeded
the one meter fixed by the same by 17 3/8 inches and leaving only a distance of 2 1/2
feet between the “Media agua” as illegally constructed and the electric wires. And
added to this violation of the permit by the house owner, was its approval by the city
through its agent, possibly an inspector. Surely we cannot lay these serious violations
of a city ordinance and permit at the door of the Company, guiltless of breach of any
ordinance or regulation. The Company cannot be expected to be always on the lookout
for any illegal construction which reduces the distance between its wires and said
construction, and after finding that said distance of 3 feet had been reduced, to change
the stringing or installation of its wires so as to preserve said distance. It would be much
easier for the City, or rather it is its duty, to be ever on the alert and to see to it that its
ordinances are strictly followed by house owners and to condemn or disapprove all
illegal constructions. Of course, in the present case, the violation of the permit for the
construction of the “media agua” was not the direct cause of the accident. It merely
contributed to it. Had said “media agua” been only one meter wide as allowed by the
permit, Magno standing on it, would instinctively have stayed closer to or hugged the
side of the house in order to keep a safe margin between the edge of the “media agua”
and the yawning 2-story distance or height from the ground, and possibly if not probably
avoided the fatal contact between the lower end of the iron sheet and the wires.
We realize that the presence of the wires in question quite close to the house or its
“media agua” was always a source of danger considering their high voltage and
uninsulated as they were, but the claim of the company and the reasons given by it for
not insulating said wires were unrefuted as we gather from the findings of the Court of
Appeals, and so we have to accept them as satisfactory. Consequently, we may not
hold said company as guilty of negligence or wanting in due diligence in failing to
insulate said wires. As to their proximity to the house it is to be supposed that distance
of 3 feet was considered sufficiently safe by the technical men of the city such as its
electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet would have
increased the margin of safety but other factors had to be considered such as that the
wires could not be strung or the posts supporting them could not be located too far
toward the middle of the street. Thus, the real cause of the accident or death was the
reckless or negligent act of Magno himself. When he was called by his stepbrother to
repair the “media agua” just below the third story window, it is to be presumed that due
to his age and experience he was qualified to do so. Perhaps he was a tinsmith or
carpenter and had training and experience for the job. So, he could not have been
entirely a stranger to electric wires and the danger lurking in them. But unfortunately,
in the instant care, his training and experience failed him, and forgetting where he was
standing, holding the 6-feet iron sheet with both hands and at arms length, evidently
without looking, and throwing all prudence and discretion to the winds, he turned around
swinging his arms with the motion of his body, thereby causing his own electrocution.
In support of its theory and holding that Defendant-Appellant was liable for damages
the Court of Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427.
We do not think the case is exactly applicable. There, the premises involved was that
elevated portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia
Gate. In the words of the Court, it was “a public place where persons come to stroll, to
rest and to enjoy themselves”. The electric company was clearly negligent in placing its
wires so near the place that without much difficulty or exertion, a person by stretching
his hand out could touch them. A boy named Astudillo, placing one foot on a projection,
reached out and actually grasped the electric wire and was electrocuted. The person
electrocuted in said case was a boy who was in no position to realize the danger. In the
present case, however, the wires were well high over the street where there was no
possible danger to pedestrians. The only possible danger was to persons standing on
the “media agua”, but a “media agua” can hardly be considered a public place where
persons usually gather. Moreover, a person standing on the “media agua” could not
have reached the wires with his hands alone. It was necessary as was done by Magno
to hold something long enough to reach the wire. Furthermore, Magno was not a boy
or a person immature but the father of a family, supposedly a tinsmith trained and
experienced in the repair of galvanized iron roofs and “media agua”. Moreover, in that
very case of Astudillo vs. Manila Electric Co., supra, the court said that although it is a
well- established rule that the liability of electric companies for damages or personal
injuries is governed by the rules of negligence, nevertheless such companies are not
insurers of the safety of the public.
But even assuming for a moment that under the facts of the present case
the Defendant electric company could be considered negligent in installing its electric
wires so close to the house and “media agua” in question, and in failing to properly
insulate those wires (although according to the unrefuted claim of said company it was
impossible to make the insulation of that kind of wire), nevertheless to hold
the Defendant liable in damages for the death of Magno, such supposed negligence of
the company must have been the proximate and principal cause of the accident,
because if the act of Magno in turning around and swinging the galvanized iron sheet
with his hands was the proximate and principal cause of the electrocution, then his heirs
may not recover. Such was the holding of this Court in the case of Taylor vs. Manila
Electric Railroad and Light Company, 16 Phil., 8. In that case, the electric company was
found negligent in leaving scattered on its premises fulminating caps which Taylor, a
15- year old boy found and carried home. In the course of experimenting with said
fulminating caps, he opened one of them, held it out with his hands while another boy
applied a lighted match to it, causing it to explode and injure one of his eyes eventually
causing blindness in said eye. Said this Tribunal in denying recovery for the
injury:chanroblesvirtuallawlibrary
“ cralaw, so that while it may be true that these injuries would not have been incurred
but for the negligent act of the Defendant in leaving the caps exposed on its premises,
nevertheless Plaintiff’s own act was the proximate and principal cause of the accident
which inflicted the injury.”
To us it is clear that the principal and proximate cause of the electrocution was not the
electric wire, evidently a remote cause, but rather the reckless and negligent act of
Magno in turning around and swinging the galvanized iron sheet without taking any
precaution, such as looking back toward the street and at the wire to avoid its contacting
said iron sheet, considering the latter’s length of 6 feet. For a better understanding of
the rule on remote and proximate cause with respect to injuries, we find the following
citation helpful:chanroblesvirtuallawlibrary
“A prior and remote cause cannot be made the basis of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause and
the injury a distinct, successive, unrelated, and efficient cause of the injury, even though
such injury would not have happened but for such condition or occasion. If no danger
existed in the condition except because of the independent cause, such condition was
not the proximate cause. And if an independent negligent act or defective condition sets
into operation the circumstances which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause.” (45 C.J. pp. 931-
332.).
We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and
so close to houses is a constant source of danger, even death, especially to persons
who having occasion to be near said wires, do not adopt the necessary precautions.
But may be, the City of Manila authorities and the electric company could get together
and devise means of minimizing this danger to the public. Just as the establishment of
pedestrian lanes in city thoroughfares may greatly minimize danger to pedestrians
because drivers of motor vehicles may expect danger and slow down or even stop and
take other necessary precaution upon approaching said lanes, so, a similar way may
possibly be found. Since these high voltage wires cannot be properly insulated and at
reasonable cost, they might perhaps be strung only up to the outskirts of the city where
there are few houses and few pedestrians and there step-down to a voltage where the
wires carrying the same to the city could be properly insulated for the better protection
of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is hereby
reversed and the complaint filed against the Company is hereby dismissed. No costs.
 14. Astudillo v. Manila Electric Co. 55 Phil 427
G.R. No. L-33380 December 17, 1930
TEODORA ASTUDILLO, plaintiff-appellee,
vs.
MANILA ELECTRIC COMPANY, defendant-appellant.
Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr. for appellant.
Vicente Sotto and Adolfo Brillantes for appellee.
MALCOLM, J.:
In August, 1928, a young man by the name of Juan Diaz Astudillo met his death through
electrocution, when he placed his right hand on a wire connected with an electric light
pole situated near Santa Lucia Gate, Intramuros, in the City of Manila. Shortly
thereafter, the mother of the deceased instituted an action in the Court of First Instance
of Manila to secure from the Manila Electric Company damages in the amount of
P30,000. The answer of the company set up as special defenses that the death of Juan
Diaz Astudillo was due solely to his negligence and lack of care, and that the company
had employed the diligence of a good father of a family to prevent the injury. After trial,
which included an ocular inspection of the place where the fatality occurred, judgment
was rendered in favor of the plaintiff and against the defendant for the sum of P15,000,
and costs.
As is well known, a wall surrounds the District of Intramuros, in the City of Manila. At
intervals, gates for the ingress and egress of pedestrians and vehicles penetrate the
wall. One of these openings toward Manila Bay is known as the Santa Lucia Gate.
Above this gate and between the wall and a street of Intramuros is a considerable space
sodded with grass with the portion directly over the gate paved with stone. Adjoining
this place in Intramuros are the buildings of the Ateneo de Manila, the Agustinian
Convent, the Bureau of Public Works, and the Santa Lucia Barracks. The proximity to
these structures and to the congested district in the Walled City has made this a public
place where persons come to stroll, to rest, and to enjoy themselves. An employee of
the City of Manila, a number of years ago, put up some wire to keep persons from
dirtying the premises, but this wire has fallen down and is no obstacle to those desiring
to make use of the place. No prohibitory signs have been posted.
Near this place in the street of Intramuros is an electric light pole with the corresponding
wires. The pole presumably was located by the municipal authorities and conforms in
height to the requirements of the franchise of the Manila Electric Company. The feeder
wires are of the insulated type, known as triple braid weather proof, required by the
franchise. The pole, with its wires, was erected in 1920. It was last inspected by the
City Electrician in 1923 or 1924. The pole was located close enough to the public place
here described, so that a person, by reaching his arm out the full length, would be able
to take hold of one of the wires. It would appear, according to the City Electrician, that
even a wire of the triple braid weather proof type, if touched by a person, would
endanger the life of that person by electrocution.
About 6 o'clock in the evening of August 14, 1928, a group of boys or young men came
to this public place. Two of them named Juan Diaz Astudillo and Alejo Ponsoy
sauntered over to where the electric post was situated. They were there looking out
towards Intramuros. For exactly what reason, no one will ever know, but Juan Diaz
Astudillo, placing one foot on a projection, reached out and grasped a charged electric
wire. Death resulted almost instantly.
The matter principally discussed is the question of the defendant company's liability
under the circumstances stated. It is well established that the liability of electric light
companies for damages for personal injuries is governed by the rules of negligence.
Such companies are, however, not insurers of the safety of the public. But considering
that electricity is an agency, subtle and deadly, the measure of care required of electric
companies must be commensurate with or proportionate to the danger. The duty of
exercising this high degree of diligence and care extends to every place where persons
have a right to be. The poles must be so erected and the wires and appliances must
be so located the persons rightfully near the place will not be injured. Particularly must
there be proper insulation of the wires and appliances in places where there is probable
likelihood of human contact therewith. (20 C. J., pp. 320 et seq.; San Juan Light &
Transit Co. vs. Requena [1912], 224 U. S., 89.)
We cannot agree with the defense of the Manila Electric Company in the lower court to
the effect that the death of Juan Diaz Astudillo was due exclusively to his negligence.
He only did the natural thing to be expected of one not familiar with the danger arising
from touching an electric wire, and was wholly unconscious of his peril. Had not the
wire caused the death of this young man, it would undoubtedly have been only a
question of time when someone else, like a playful boy, would have been induced to
take hold of the wire, with fatal results. The cause of the injury was one which could
have been foreseen and guarded against. The negligence came from the act of the
Manila Electric Company in so placing its pole and wires as to be within proximity to a
place frequented by many people, with the possibility ever present of one of them losing
his life by coming in contact with a highly charged and defectively insulated wire.
As we understand the position of the Manila Electric Company on appeal, its principal
defense now is that it has fully complied with the provisions of its franchise and of the
ordinances of the City of Manila. It is undeniable that the violation of franchise, an
ordinance, or a statute might constitute negligence. But the converse is not necessarily
true, and compliance with a franchise, an ordinance, or a statute is not conclusive proof
that there was no negligence. The franchise, ordinance, or statute merely states the
minimum conditions. The fulfillment of these conditions does not render unnecessary
other precautions required by ordinary care. (Moore vs. Hart [1916], 171 Ky., 725;
Oliver vs. Weaver [1923], 72 Colo., 540; Caldwell vs. New Jersey Steamboat Co.
[1872], 47 N. Y., 282; Consolidated Electric Light & Power Co. vs. Healy [1902], 65
Kan., 798.)
The company further defends in this court on the ground that it has not been proven
that the deceased is an acknowledged natural child of the plaintiff mother. Technically
this is correct. (Civil Code, art. 944). At the same time, it should first of all be mentioned
that, so far as we know, this point was not raised in the lower court. Further, while the
mother may thus be precluded from succeeding to the estate of the son, yet we know
of no reason why she cannot be permitted to secure damages from the company when
the negligence of this company resulted in the death of her child.lawphi1>net

We, therefore, conclude that the plaintiff is entitled to damages. But the evidence
indicative of the true measure of those damages is sadly deficient. All that we know
certainly is that the deceased was less than 20 years of age, a student, and working in
the Ateneo de Manila, but at what wages we are not told. We are also shown that
approximately P200 was needed to defray the travel and funeral expenses. As would
happen in the case of a jury who have before them one of the parents, her position to
life, and the age and sex of the child, varying opinions, have been disclosed in the court
regarding the estimate of the damages with reference to the next of kin. Various sums
have been suggested, beginning as low as P1,000 and extending as high as P5,000.
A majority of the court finally arrived at the sum of P1,500 as appropriate damages in
this case. The basis of this award would be the P1,000 which have been allowed in
other cases for the death of young children without there having been tendered any
special proof of the amount of damages suffered, in connection with which should be
taken into account the more mature age of the boy in the case at bar, together with the
particular expenses caused by his death. (Manzanares vs Moreta [1918], 38 Phil., 821;
Bernal and Enverso vs. House and Tacloban Electric & Ice Plant [1930], 54 Phil., 327;
Cuison vs. Norton & Harrison Co. [1930], p. 18, ante.)

In the light of the foregoing, the various errors assigned by the appellant will in the main
be overruled, but as above indicated, the judgment will be modified by allowing the
plaintiff to recover from the defendant the sum of P1,500, and the costs of both
instances.
 15. Taylor v. Manila Electric Railroad 16 Phil 8
G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by
David Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and
an electric light system in the city of Manila. Its power plant is situated at the eastern
end of a small island in the Pasig River within the city of Manila, known as the Isla del
Provisor. The power plant may be reached by boat or by crossing a footbridge,
impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained
of, 15 years of age, the son of a mechanical engineer, more mature than the average
boy of his age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about
12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of
visiting one Murphy, an employee of the defendant, who and promised to make them a
cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his
quarters, the boys, impelled apparently by youthful curiosity and perhaps by the
unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after leaving the power house
where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's
coal, they walked across the open space in the neighborhood of the place where the
company dumped in the cinders and ashes from its furnaces. Here they found some
twenty or thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and each has
attached to it two long thin wires by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to
the ownership of the caps, and their right to take them, the boys picked up all they could
find, hung them on stick, of which each took end, and carried them home. After crossing
the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all
three went to the home of the boy Manuel. The boys then made a series of experiments
with the caps. They trust the ends of the wires into an electric light socket and obtained
no result. They next tried to break the cap with a stone and failed. Manuel looked for a
hammer, but could not find one. Then they opened one of the caps with a knife, and
finding that it was filled with a yellowish substance they got matches, and David held
the cap while Manuel applied a lighted match to the contents. An explosion followed,
causing more or less serious injuries to all three. Jessie, who when the boys proposed
putting a match to the contents of the cap, became frightened and started to run away,
received a slight cut in the neck. Manuel had his hand burned and wounded, and David
was struck in the face by several particles of the metal capsule, one of which injured
his right eye to such an extent as to the necessitate its removal by the surgeons who
were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on
the defendant's premises, nor how long they had been there when the boys found them.
It appears, however, that some months before the accident, during the construction of
the defendant's plant, detonating caps of the same size and kind as those found by the
boys were used in sinking a well at the power plant near the place where the caps were
found; and it also appears that at or about the time when these caps were found,
similarly caps were in use in the construction of an extension of defendant's street car
line to Fort William McKinley. The caps when found appeared to the boys who picked
them up to have been lying for a considerable time, and from the place where they were
found would seem to have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or
prevent visitors from entering and walking about its premises unattended, when they
felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true
that children in their play sometimes crossed the foot bridge to the islands;" and, we
may add, roamed about at will on the uninclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is evidence that any effort
ever was made to forbid these children from visiting the defendant company's premises,
although it must be assumed that the company or its employees were aware of the fact
that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on
one of the interisland transports. Later he took up work in his father's office, learning
mechanical drawing and mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued in that employment for
six months at a salary of P2.50 a day; and it appears that he was a boy of more than
average intelligence, taller and more mature both mentally and physically than most
boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel. The
only questions of fact which are seriously disputed are plaintiff's allegations that the
caps which were found by plaintiff on defendant company's premises were the property
of the defendant, or that they had come from its possession and control, and that the
company or some of its employees left them exposed on its premises at the point where
they were found.
The evidence in support of these allegations is meager, and the defendant company,
apparently relying on the rule of law which places the burden of proof of such
allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff
failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a
finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less
extensively, on the McKinley extension of the defendant company's track; that some of
these caps were used in blasting a well on the company's premises a few months
before the accident; that not far from the place where the caps were found the company
has a storehouse for the materials, supplies and so forth, used by it in its operations as
a street railway and a purveyor of electric light; and that the place, in the neighborhood
of which the caps were found, was being used by the company as a sort of dumping
ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the
average citizen, and under all the circumstances, and in the absence of all evidence to
the contrary, we think that the discovery of twenty or thirty of these caps at the place
where they were found by the plaintiff on defendant's premises fairly justifies the
inference that the defendant company was either the owner of the caps in question or
had the caps under its possession and control. We think also that the evidence tends to
disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that
they would be buried out of the sight by the ashes which it was engaged in dumping in
that neighborhood, they being old and perhaps defective; and, however this may be,
we are satisfied that the evidence is sufficient to sustain a finding that the company or
some of its employees either willfully or through an oversight left them exposed at a
point on its premises which the general public, including children at play, where not
prohibited from visiting, and over which the company knew or ought to have known that
young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts
on which these conclusions are based by intimidating or rather assuming that the
blasting work on the company's well and on its McKinley extension was done by
contractors. It was conclusively proven, however, that while the workman employed in
blasting the well was regularly employed by J. G. White and Co., a firm of contractors,
he did the work on the well directly and immediately under the supervision and control
of one of defendant company's foremen, and there is no proof whatever in the record
that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part
of this work was done by contract, he could not say so of his own knowledge, and knew
nothing of the terms and conditions of the alleged contract, or of the relations of the
alleged contractor to the defendant company. The fact having been proven that
detonating caps were more or less extensively employed on work done by the
defendant company's directions and on its behalf, we think that the company should
have introduced the necessary evidence to support its contention if it wished to avoid
the not unreasonable inference that it was the owner of the material used in these
operations and that it was responsible for tortious or negligent acts of the agents
employed therein, on the ground that this work had been intrusted to independent
contractors as to whose acts the maxim respondent superior should not be applied. If
the company did not in fact own or make use of caps such as those found on its
premises, as intimated by counsel, it was a very simple matter for it to prove that fact,
and in the absence of such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in drawing the reasonable
inference that the caps found on its premises were its property, and were left where
they were found by the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's
favor, upon the provisions of article 1089 of the Civil Code read together with articles
1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts,
and illicit acts and omissions or by those in which any kind of fault or
negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the damage so
done.
ART. 1903 The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons for
whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages
caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for
damages caused by their employees in the service of the branches in which
the latter may be employed or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family
to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with due
diligence, and for kindling of explosive substances which may not have been
placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention
that the facts proven at the trial do not established the liability of the defendant company
under the provisions of these articles, and since we agree with this view of the case, it
is not necessary for us to consider the various questions as to form and the right of
action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific
Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the
judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some
person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the
damage.
These proposition are, of course, elementary, and do not admit of discussion, the real
difficulty arising in the application of these principles to the particular facts developed
in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps been
left exposed at the point where they were found, or if their owner had exercised due
care in keeping them in an appropriate place; but it is equally clear that plaintiff would
not have been injured had he not, for his own pleasure and convenience, entered upon
the defendant's premises, and strolled around thereon without the express permission
of the defendant, and had he not picked up and carried away the property of the
defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his
entry upon defendant company's premises, and the intervention of his action between
the negligent act of defendant in leaving the caps exposed on its premises and the
accident which resulted in his injury should not be held to have contributed in any wise
to the accident, which should be deemed to be the direct result of defendant's
negligence in leaving the caps exposed at the place where they were found by the
plaintiff, and this latter the proximate cause of the accident which occasioned the
injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many
of the courts of last resort in the United States in the cases known as the "Torpedo"
and "Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable
for an injury received by an infant of tender years, who from mere idle curiosity, or for
the purposes of amusement, enters upon the railroad company's premises, at a place
where the railroad company knew, or had good reason to suppose, children would be
likely to come, and there found explosive signal torpedoes left unexposed by the
railroad company's employees, one of which when carried away by the visitor, exploded
and injured him; or where such infant found upon the premises a dangerous machine,
such as a turntable, left in such condition as to make it probable that children in playing
with it would be exposed to accident or injury therefrom and where the infant did in fact
suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the
owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal
question was whether a railroad company was liable for in injury received by an infant
while upon its premises, from idle curiosity, or for purposes of amusement, if such injury
was, under circumstances, attributable to the negligence of the company), the
principles on which these cases turn are that "while a railroad company is not bound to
the same degree of care in regard to mere strangers who are unlawfully upon its
premises that it owes to passengers conveyed by it, it is not exempt from responsibility
to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule which
governs that of adult. While it is the general rule in regard to an adult that to entitle him
to recover damages for an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is according to his maturity and
capacity only, and this is to be determined in each case by the circumstances of the
case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted
and sharply criticized in several state courts, and the supreme court of Michigan in the
case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the
doctrine of the Turntable cases, especially that laid down in Railroad Company vs.
Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That
the owner of the land is not liable to trespassers thereon for injuries sustained by them,
not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of
children who are injured by dangerous machinery naturally calculated to attract them
to the premises; (3) that an invitation or license to cross the premises of another can
not be predicated on the mere fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children and adults as to the
circumstances that will warrant the inference of an invitation or a license to enter upon
another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were
indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co.,
53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States,
citing and approving the doctrine laid down in England in the leading case of Lynch vs.
Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that
announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the
United States, in a unanimous opinion delivered by Justice Harlan in the case of Union
Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad
Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the
adjudged cases, both English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as
follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure,
entered upon and visited the defendant's premises, without defendant's express
permission or invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but which had been left by
defendant on its premises without any fence around it or anything to give warning of its
dangerous condition, although defendant knew or had reason the interest or curiosity
of passers-by. On these facts the court held that the plaintiff could not be regarded as
a mere trespasser, for whose safety and protection while on the premises in question,
against the unseen danger referred to, the defendant was under no obligation to make
provision.
We quote at length from the discussion by the court of the application of the principles
involved to the facts in that case, because what is said there is strikingly applicable in
the case at bar, and would seem to dispose of defendant's contention that, the plaintiff
in this case being a trespasser, the defendant company owed him no duty, and in no
case could be held liable for injuries which would not have resulted but for the entry of
plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra).
Applied to the case now before us, they require us to hold that the defendant
was guilty of negligence in leaving unguarded the slack pile, made by it in the
vicinity of its depot building. It could have forbidden all persons from coming
to its coal mine for purposes merely of curiosity and pleasure. But it did not do
so. On the contrary, it permitted all, without regard to age, to visit its mine, and
witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people
of the village, old and young, would often assemble. It knew that children were
in the habit of frequenting that locality and playing around the shaft house in
the immediate vicinity of the slack pit. The slightest regard for the safety of
these children would have suggested that they were in danger from being so
near a pit, beneath the surface of which was concealed (except when snow,
wind, or rain prevailed) a mass of burning coals into which a child might
accidentally fall and be burned to death. Under all the circumstances, the
railroad company ought not to be heard to say that the plaintiff, a mere lad,
moved by curiosity to see the mine, in the vicinity of the slack pit, was a
trespasser, to whom it owed no duty, or for whose protection it was under no
obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a highway,
or to the premises of another, that dogs passing along the highway, or kept in
his neighbors premises, would probably be attracted by their instinct into the
traps, and in consequence of such act his neighbor's dogs be so attracted and
thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the
trap by means of his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in this case, is
there between an express license to the children of this village to visit the
defendant's coal mine, in the vicinity of its slack pile, and an implied license,
resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the
case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of
Negligence, volume 1, page 305, note, well says: "It would be a barbarous
rule of law that would make the owner of land liable for setting a trap thereon,
baited with stinking meat, so that his neighbor's dog attracted by his natural
instinct, might run into it and be killed, and which would exempt him from
liability for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or
maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case
of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts
and impulses; and others who are chargeable with a duty of care and caution
toward them must calculate upon this, and take precautions accordingly. If
they leave exposed to the observation of children anything which would be
tempting to them, and which they in their immature judgment might naturally
suppose they were at liberty to handle or play with, they should expect that
liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied
invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied
license might sometimes arise when it would not on behalf of others. Thus
leaving a tempting thing for children to play with exposed, where they would
be likely to gather for that purpose, may be equivalent to an invitation to them
to make use of it; and, perhaps, if one were to throw away upon his premises,
near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in
the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs.
McDonald (supra) is not less cogent and convincing in this jurisdiction than in that
wherein those cases originated. Children here are actuated by similar childish instincts
and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here
as well as there will usually be found whenever the public is permitted to congregate.
The movement of machinery, and indeed anything which arouses the attention of the
young and inquiring mind, will draw them to the neighborhood as inevitably as does the
magnet draw the iron which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to children are exposed, or
upon which the public are expressly or impliedly permitted to enter or upon which the
owner knows or ought to know children are likely to roam about for pastime and in play,
" must calculate upon this, and take precautions accordingly." In such cases the owner
of the premises can not be heard to say that because the child has entered upon his
premises without his express permission he is a trespasser to whom the owner owes
no duty or obligation whatever. The owner's failure to take reasonable precautions to
prevent the child from entering his premises at a place where he knows or ought to
know that children are accustomed to roam about of to which their childish instincts and
impulses are likely to attract them is at least equivalent to an implied license to enter,
and where the child does enter under such conditions the owner's failure to take
reasonable precautions to guard the child against injury from unknown or unseen
dangers, placed upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on its part than that it had
entered on the premises of a stranger without his express invitation or permission. To
hold otherwise would be expose all the children in the community to unknown perils
and unnecessary danger at the whim of the owners or occupants of land upon which
they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention
that a man has a right to do what will with his own property or that children should be
kept under the care of their parents or guardians, so as to prevent their entering on the
premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in
the United States all private property is acquired and held under the tacit condition that
it shall not be so used as to injure the equal rights and interests of the community (see
U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of
very tender years it would be absurd and unreasonable in a community organized as
is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the
parental roof unattended, even if in the event of accident to the child the negligence of
the parent could in any event be imputed to the child so as to deprive it a right to recover
in such cases — a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without other fault on his part, if such
injury were attributable to the negligence of the defendant, we are of opinion that under
all the circumstances of this case the negligence of the defendant in leaving the caps
exposed on its premises was not the proximate cause of the injury received by the
plaintiff, which therefore was not, properly speaking, "attributable to the negligence of
the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting
open the detonating cap and putting match to its contents was the proximate cause of
the explosion and of the resultant injuries inflicted upon the plaintiff, and that the
defendant, therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because
of plaintiff's youth the intervention of his action between the negligent act of the
defendant in leaving the caps exposed on its premises and the explosion which resulted
in his injury should not be held to have contributed in any wise to the accident; and it is
because we can not agree with this proposition, although we accept the doctrine of the
Turntable and Torpedo cases, that we have thought proper to discuss and to consider
that doctrine at length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an adult that to entitle him to
recover damages for an injury resulting from the fault or negligence of another he must
himself have been free from fault, such is not the rule in regard to an infant of tender
years. The care and caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances of the case." As
we think we have shown, under the reasoning on which rests the doctrine of the
Turntable and Torpedo cases, no fault which would relieve defendant of responsibility
for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's uninclosed premises
without express permission or invitation' but it is wholly different question whether such
youth can be said to have been free from fault when he willfully and deliberately cut
open the detonating cap, and placed a match to the contents, knowing, as he
undoubtedly did, that his action would result in an explosion. On this point, which must
be determined by "the particular circumstances of this case," the doctrine laid down in
the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has
been directed, the record discloses that the plaintiffs, in whose favor judgments have
been affirmed, were of such tender years that they were held not to have the capacity
to understand the nature or character of the explosive instruments which fell into their
hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15,
more mature both mentally and physically than the average boy of his age; he had been
to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty
days after the injury was incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself. The evidence of record leaves no
room for doubt that, despite his denials on the witness stand, he well knew the explosive
character of the cap with which he was amusing himself. The series of experiments
made by him in his attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to discharge the cap by the use
of electricity, followed by his efforts to explode it with a stone or a hammer, and the final
success of his endeavors brought about by the application of a match to the contents
of the caps, show clearly that he knew what he was about. Nor can there be any
reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at
the time when he put the match to the contents of the cap, became frightened and ran
away.
True, he may not have known and probably did not know the precise nature of the
explosion which might be expected from the ignition of the contents of the cap, and of
course he did not anticipate the resultant injuries which he incurred; but he well knew
that a more or less dangerous explosion might be expected from his act, and yet he
willfully, recklessly, and knowingly produced the explosion. It would be going far to say
that "according to his maturity and capacity" he exercised such and "care and caution"
as might reasonably be required of him, or that defendant or anyone else should be
held civilly responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary
capacity to understand and appreciate the nature and consequences of his own acts,
so as to make it negligence on his part to fail to exercise due care and precaution in
the commission of such acts; and indeed it would be impracticable and perhaps
impossible so to do, for in the very nature of things the question of negligence
necessarily depends on the ability of the minor to understand the character of his own
acts and their consequences; and the age at which a minor can be said to have such
ability will necessarily depends of his own acts and their consequences; and at the age
at which a minor can be said to have such ability will necessarily vary in accordance
with the varying nature of the infinite variety of acts which may be done by him. But
some idea of the presumed capacity of infants under the laws in force in these Islands
may be gathered from an examination of the varying ages fixed by our laws at which
minors are conclusively presumed to be capable of exercising certain rights and
incurring certain responsibilities, though it can not be said that these provisions of law
are of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own acts
varies with the varying circumstances of each case. Under the provisions of the Penal
Code a minor over fifteen years of age is presumed to be capable of committing a crime
and is to held criminally responsible therefore, although the fact that he is less than
eighteen years of age will be taken into consideration as an extenuating circumstance
(Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain
circumstances, choose which parent it prefers to live with (Code of Civil Procedure,
sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may
consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are
capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding
to be sensible of the danger to which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his age and his experience
qualified him to understand and appreciate the necessity for the exercise of that degree
of caution which would have avoided the injury which resulted from his own deliberate
act; and that the injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while it may be true that
these injuries would not have been incurred but for the negligence act of the defendant
in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the
proximate and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur
sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from
another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts
the grievance should be against himself and not against another. (Law 2, tit.
7, Partida 2.)
According to ancient sages, when a man received an injury through his own
acts the grievance should be against himself and not against another. (Law 2,
tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays
down the law touching contributory negligence in this jurisdiction, nevertheless, the
interpretation placed upon its provisions by the supreme court of Spain, and by this
court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly
deny to the plaintiff in the case at bar the right to recover damages from the defendant,
in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the
injury there exists the relation of cause and effect; but if the injury produced
should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, although such acts or omission were imprudent
or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged
fault or negligence is not sufficient without proof that it, and no other cause, gave rise
to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title
in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on
the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise
to an obligation when between it and the damage there exists the relation of
cause and effect; but if the damage caused does not arise from the acts or
omissions of a third person, there is no obligation to make good upon the
latter, even though such acts or omissions be imprudent or illegal, and much
less so when it is shown that the immediate cause of the damage has been
the recklessness of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden thereof
is upon the plaintiff, it is apparent that it is duty of him who shall claim damages
to establish their existence. The decisions of April 9, 1896, and March 18, July,
and September 27, 1898, have especially supported the principle, the first
setting forth in detail the necessary points of the proof, which are two: An act
or omission on the part of the person who is to be charged with the liability,
and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect
between the act or omission and the damage; the latter must be the direct
result of one of the first two. As the decision of March 22, 1881, said, it is
necessary that the damages result immediately and directly from an act
 performed culpably and wrongfully; "necessarily presupposing a legal ground
for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
carrying the relation of cause and effect between the negligent act or omission of the
defendant in leaving the caps exposed on its premises and the injuries inflicted upon
the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo
cases, such action on the part of an infant of very tender years would have no effect in
relieving defendant of responsibility, but whether in view of the well-known fact admitted
in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the
age and maturity of plaintiff should be deemed without fault in picking up the caps in
question under all the circumstances of this case, we neither discuss nor decide.

Finally we think the doctrine in this jurisdiction applicable to the case at bar was Twenty days after the date of this decision let judgment be entered reversing the
definitely settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf judgment of the court below, without costs to either party in this instance, and ten days
and Pacific Co. (supra), wherein we held that while "There are many cases (personal thereafter let the record be returned to the court wherein it originated, where the
injury cases) was exonerated," on the ground that "the negligence of the plaintiff was judgment will be entered in favor of the defendant for the costs in first instance and the
the immediate cause of the casualty" (decisions of the 15th of January, the 19th of complaint dismissed without day. So ordered.
February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none of
the cases decided by the supreme court of Spain "define the effect to be given the
negligence of its causes, though not the principal one, and we are left to seek the theory
of the civil law in the practice of other countries;" and in such cases we declared that
law in this jurisdiction to require the application of "the principle of proportional
damages," but expressly and definitely denied the right of recovery when the acts of
the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party

shall be considered immediate causes of the accident. The test is simple.
Distinction must be made between the accident and the injury, between the
event itself, without which there could have been no accident, and those acts
of the victim not entering into it, independent of it, but contributing to his own
proper hurt. For instance, the cause of the accident under review was the
displacement of the crosspiece or the failure to replace it. This produces the
event giving occasion for damages—that is, the sinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking by the
side of the car did not contribute, although it was an element of the damage
which came to himself. Had the crosspiece been out of place wholly or partly
through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he may recover the amount
that the defendant responsible for the event should pay for such injury, less a
sum deemed a suitable equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his own act in putting
a match to the contents of the cap, and that having "contributed to the principal
occurrence, as one of its determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking
up upon defendant's premises the detonating caps, the property of defendant, and
 16. The Heirs of Redentor Completo v. Albayda Jr. GR No. 172200
THE HEIRS OF REDENTOR COMPLETO and ELPIDIO
ABIAD,
Petitioners,
- versus -
SGT. AMANDO C. ALBAYDA, JR.,
Respondent.
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision[1] dated January 2, 2006 and the Resolution[2] dated
March 30, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine
Air Force, 527th Base Security Squadron, 520th Airbase, Philippine Air Force, located
at Villamor Air Base (VAB), Pasay City. Petitioner Redentor Completo (Completo), now
represented by his heirs, was the taxi driver of a Toyota Corolla, bearing Plate No. PYD-
128, owned and operated by co-petitioner Elpidio Abiad (Abiad).[3] Albayda and
Completo figured in an accident along the intersection of 8th and 11th Streets, VAB.
Albayda filed a complaint for damages before the Regional Trial Court (RTC)
of Pasay City. The case was docketed as Civil Case No. 98-1333.[4]
The amended complaint alleged that, on August 27, 1997, while Albayda was on his
way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven by
Completo bumped and sideswiped him, causing serious physical injuries. Albayda was
brought to the Philippine Air Force General Hospital (PAFGH) inside VAB. However,
he was immediately transferred to the Armed Forces of the Philippines Medical Center
(AFPMC) on V. Luna Road, Quezon City, because there was a fracture in his left knee
and there was no orthopedic doctor available at PAFGH. From August 27, 1997 until
February 11, 1998, he was confined therein. He was again hospitalized at PAFGH from
February 23, 1998 until March 22, 1998.[5]
G.R. No. 172200 Conciliation between the parties before the barangay failed. Thus, Albayda filed a
complaint for physical injuries through reckless imprudence against Completo before
Present: the Office of the City Prosecutor of Pasay City. On the other hand, Completo filed a
counter-charge of damage to property through reckless imprudence against Albayda.
CARPIO, J., On January 13, 1998, the Office of the City Prosecutor issued a
Chairperson, resolution,[6] recommending the filing of an information for reckless imprudence
NACHURA, resulting in physical injuries against Completo. The counter-charge of damage to
PERALTA, property was recommended dismissed.[7]
ABAD, and
MENDOZA, JJ. The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where
Albayda manifested his reservation to file a separate civil action for damages against
Promulgated: petitioners Completo and Abiad.[8]
July 6, 2010 Albayda alleged that the proximate cause of the incident which necessitated his stay in
the hospital for approximately seven (7) months was the negligence of Completo who,
at the time of the accident, was in the employ of Abiad. The pain he suffered required
him to undergo medical physiotherapy for a number of years to regain normality of his
left knee joint, and he claimed that he incurred actual damages totaling Two Hundred
Seventy-Six Thousand Five Hundred Fifty Pesos (P276,550.00), inclusive of his
anticipated operations.[9]
He further stated that aggravating the physical sufferings, mental anguish, frights,
serious anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation resulting from his injuries, his wife abandoned him in May 1998, and left
their children in his custody. He thus demanded the amount of Six Hundred Thousand
Pesos (P600,000.00) as moral damages. He likewise asked for exemplary damages in
the amount of Two Hundred Thousand Pesos (P200,000.00) and attorneys fees of
Twenty-Five Thousand Pesos (P25,000.00), plus One Thousand Pesos (P1,000.00)
per court appearance.[10]
In his answer to the amended complaint, Completo alleged that, on August 27, 1997,
he was carefully driving the taxicab along 8th Street, VAB, when suddenly he heard a
strange sound from the rear right side of the taxicab. When he stopped to investigate,
he found Albayda lying on the road and holding his left leg. He immediately rendered
assistance and brought Albayda to PAFGH for emergency treatment.[11]
Completo also asserted that he was an experienced driver who, in accordance with
traffic rules and regulations and common courtesy to his fellow motorists, had already
reduced his speed to twenty (20) kilometers per hour even before reaching the
intersection of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very high
speed, causing him to suddenly lose control of the bicycle and hit the rear door on the
right side of the taxicab.[12]
The deep indentation on the rear right door of the taxicab was caused by the impact of
Albaydas body that hit the taxicab after he had lost control of the bicycle; while the slight
indentation on the right front door of the taxicab was caused by the impact of the bike
that hit the taxicab after Albayda let go of its handles when he had lost control of it.[13]

Completo maintained that Albayda had no cause of action. The accident and the
physical injuries suffered by Albayda were caused by his own negligence, and his
purpose in filing the complaint was to harass petitioners and unjustly enrich himself at
their expense.[14]
After submission of the parties respective pleadings, a pretrial conference was held.
On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on the merits
ensued.[15]
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr.
Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr.
Manuel Fidel Magtira (Dr. Magtira) as witnesses in open court.[16]
On direct examination, Navarro testified that, on August 27, 1997, at around 1:45 p.m.,
he saw a taxicab, with Plate No. PYD-128, coming from 11th Street, running at an
unusual speed. The normal speed should have been twenty-five (25) kilometers per
hour. He was at the corner of 9th and 8th Streets when the taxicab passed by him. The
side of the bicycle was hit by the taxicab at the intersection of 11th and 8th Streets. He
saw Albayda fall to the ground, grimacing in pain. The taxicab at that moment was
about ten (10) meters away from Albayda. On cross-examination, Navarro reiterated
that the taxicab was running quite fast. The bicycle ridden by Albayda reached the
intersection of 8th and 11th Streets before the taxicab hit it.[17]
Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was admitted
at AFPMC, testified that the cause of the injury was hard impact, and recommended an
operation to alleviate the suffering. On cross-examination, he said that there was a
separation of the fragments of the proximal leg, the injured extremity, called levia. They
placed the victim on knee traction or calcaneal traction,[18] in order to avoid further
swelling. They bore the calcanean bone with a stainless steel pin so that they could put
five percent (5%) of the body weight of the patient to cool down the leg. He treated
Albayda for three (3) months. He recommended surgery, but the victim had other
medical problems, like an increase in sugar level, and they were waiting for the
availability of the implant. The implant was supposed to be placed on the lateral aspect
of the proximal leg or the levia, the part with the separation. It was a long implant with
screws.[19]
Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999
because of complaints of pain and limitation of motion on the knee joint. Upon
evaluation, the pain was caused by traumatic arthritis brought about by malunion of the
lateral trivial condial. An operation of the soft tissue release was conducted for him to
mobilize his knee joint and attain proper range of motion. After the operation, Albayda
attained functional range of motion, but because of subsisting pain, they had to do
osteoplasty[20] of the malunion, which was another operation. On cross-
examination, Dr. Magtira testified that he rendered free medical service at AFPMC.[21]
Albayda testified that he was thirty-six (36) years old and a soldier of the Armed Forces
of the Philippines. On August 27, 1997, at around 1:40 p.m., he was riding his bike on
his way to the office, located on 916 Street, VAB. He had to stop at the corner of
11th and 8th Streets because an oncoming taxicab was moving fast. However, the
taxicab still bumped the front tire of his bike, hit his left knee and threw him off until he
fell down on the road. The taxicab stopped about ten meters away, and then moved
backwards. Its driver, Completo, just stared at him. When somebody shouted to bring
him to the hospital, two (2) persons, one of whom was Dr. Barrosa, helped him and
carried him into the taxicab driven by Completo, who brought him to PAFGH.[22]
Upon examination, it was found that Albayda suffered fracture in his left knee and that
it required an operation. No orthopedic doctor was available at PAFGH. Thus, he was
transferred that same afternoon to AFPMC, where he was confined until February 11,
1998.[23]
At AFPMC, Albaydas left leg was drilled on and attached to traction. When his leg was
drilled, it was so painful that he had to shout. After his release from the hospital, he
continued to suffer pain in his leg. He underwent reflexology and therapy which offered
temporary relief from pain. But after some time, he had to undergo therapy and
reflexology again.[24]
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June
24, 1999, he was operated on again. Wire and screw were installed so that he could
bend his knee. Nonetheless, he continued to suffer pain. As of the date of his testimony
in court, he was scheduled for another operation in January 2000, when the steel that
would be installed in his leg arrives.[25]
For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months
of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for his twice weekly
reflexology, Three Hundred Pesos (P300.00) every session since April 1997; for his
caretaker, P300.00 per day for six months. He also asked for P600,000.00 in moral
damages because Completo did not lend him a helping hand, and he would be suffering
deformity for the rest of his life. He demanded P25,000.00 as attorneys fees
and P1,000.00 for every court appearance of his lawyer.[26]
On cross-examination, Albayda testified that, on the date of the incident, he was the
base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was not
in a hurry to go to his place of work because it was only about 1:45 p.m., and his place
of work was only six (6) meters away. After the accident, he was brought to PAFGH,
and at 3:00 p.m., he was brought to the AFPMC. When he was discharged from the
hospital, he could no longer walk.[27]
Dr. Barrosas testimony during cross-examination emphasized that he was with 2 other
persons when he carried Albayda into the taxicab driven by Completo. He was certain
that it was not Completo who carried the victim into the taxicab. It was only a matter of
seconds when he rushed to the scene of the accident. The taxicab backed up fifteen
(15) seconds later. Albayda lay 2 meters away from the corner of 8th and 11th Streets.[28]
Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.[29]
Completo alleged that he had been employed as taxi driver of FOJS Transport, owned
by Abiad, since February 1997. On August 27, 1997, he was driving the taxicab, with
Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was on his way home
when a bicycle bumped his taxicab at the intersection of 8th and 11th Streets, VAB. The
bicycle was travelling from south to north, and he was going east coming from the west.
The bicycle was coming from 11thStreet, while he was travelling along 8th Street.[30]
On cross-examination, Completo testified that when Albayda hit the rear right door of
the taxicab, the latter fell to the ground. When he heard a noise, he immediately alighted
from the taxicab. He denied that he stopped about 10 meters away from the place
where Albayda fell. He carried Albayda and drove him to the hospital.[31]
Panican testified that he worked as an airconditioner technician in a shop located
on 8th Street corner 11th Street. On the date and time of the incident, he was working in
front of the shop near the roadside. He saw a bicycle bump the rear right side of the
taxicab. Then, the driver of the taxicab alighted, carried Albayda, and brought him to
the hospital.[32]
When questioned by the trial court, Panican testified that the bicycle was running fast
and that he saw it bump the taxicab. The taxicab already passed the intersection of
11th and 8th Streets when the bicycle arrived.[33]
Abiad testified that, aside from being a soldier, he was also a franchise holder of
taxicabs and passenger jeepneys. When Completo applied as a driver of the taxicab,
Abiad required the former to show his bio-data, NBI clearance, and drivers license.
Completo never figured in a vehicular accident since the time he was employed in
February 1997. Abiad averred that Completo was a good driver and a good man. Being
the operator of taxicab, Abiad would wake up early and personally check all the
taxicabs.[34]
On July 31, 2000, the trial court rendered a decision,[35] the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
[Albayda] and against the defendants [Completo and Abiad].
Accordingly, the defendants [Completo and Abiad] are hereby
ordered to pay the plaintiff [Albayda] the following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]
3. P25,000.00 as attorneys fees.
Costs against the defendants [Completo and Abiad].
SO ORDERED.[36]
Completo and Abiad filed an appeal. The CA affirmed the trial court with modification
in a Decision[37] dated January 2, 2006, viz.:
WHEREFORE, premises considered, the appeal is DENIED for lack
of merit. The assailed Decision dated 31 July 2000 rendered by
the Regional Trial Court of PasayCity, Branch 117, in Civil Case No.
98-1333 is hereby AFFIRMED with the following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is DELETED;
2. temperate damages in the amount of Php 40,000.00 is awarded in
favor of appellee;
3. moral damages in favor of appellee is REDUCED to Php
200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are solidarily
liable to pay appellee Amando C. Albayda, Jr. said temperate and
moral damages, as well as the attorneys fees in the amount of Php
25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal interest at
6% per annum computed from the date of promulgation of Our
Decision;
6. upon finality of Our Decision, said moral and temperate damages
shall earn legal interest at the rate of 12% per annum, in lieu of
6% per annum, until full payment. Costs against appellants.
SO ORDERED.[38]
Hence, this petition.
The Issues
Petitioners presented the following issues for resolution: (1) whether the CA erred in
finding that Completo was the one who caused the collision;
(2) whether Abiad failed to prove that he observed the diligence of a good father of the
family; and (3) whether the award of moral and temperate damages and attorneys fees
to Albayda had no basis.[39]
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters which were
already passed upon by the RTC and the CA. Conclusions and findings of fact of the
trial court are entitled to great weight on appeal and should not be disturbed unless for
strong and cogent reasons, because the trial court is in a better position to examine
real evidence, as well as to observe the demeanor of the witnesses while testifying in
the case. The fact that the CA adopted the findings of fact of the trial court makes the
same binding upon this Court. Well-settled is the rule that the Supreme Court is not a
trier of facts.[40] To be sure, findings of fact of lower courts are deemed conclusive and
binding upon the Supreme Court, save only for clear and exceptional reasons,[41] none
of which is present in the case at bar.

The instant case involved a collision between a taxicab and a bicycle which resulted in
serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence suits that
the plaintiff has the burden of proving by a preponderance of evidence the motorists
breach in his duty of care owed to the plaintiff, that the motorist was negligent in failing
to exercise the diligence required to avoid injury to the plaintiff, and that such
negligence was the proximate cause of the injury suffered.[42]
Article 2176 of the Civil Code provides that whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no preexisting contractual relation between the parties, is
called a quasi-delict. In this regard, the question of the motorist's negligence is a
question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise
reasonable diligence in driving the taxicab because he was over-speeding at the time
he hit the bicycle ridden by Albayda. Such negligence was the sole and proximate
cause of the serious physical injuries sustained by Albayda. Completo did not slow
down even when he approached the intersection of 8th and 11th Streets of VAB. It was
also proven that Albayda had the right of way, considering that he reached the
intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of other vehicles
lawfully on the highway, and it is fortified by the fact that usually more will be required
of a motorist than a bicyclist in discharging his duty of care to the other because of the
physical advantages the automobile has over the bicycle.[43]
At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second,
while a car traveling at only twenty-five miles per hour covers almost thirty-seven feet
per second, and split-second action may be insufficient to avoid an accident. It is
obvious that a motor vehicle poses a greater danger of harm to a bicyclist than vice
versa. Accordingly, while the duty of using reasonable care falls alike on a motorist and
a bicyclist, due to the inherent differences in the two vehicles, more care is required
from the motorist to fully discharge the duty than from the bicyclist.[44] Simply stated,
the physical advantages that the motor vehicle has over the bicycle make it more
dangerous to the bicyclist than vice versa.[45]
Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also for those persons for
whom one is responsible. Employers shall be liable for the damages caused by their
employees, but the employers responsibility shall cease upon proof that they observed
all the diligence of a good father of the family in the selection and supervision of their
employees.
When an injury is caused by the negligence of an employee, a legal presumption
instantly arises that the employer was negligent. This presumption may be rebutted
only by a clear showing on the part of the employer that he exercised the diligence of
a good father of a family in the selection and supervision of his employee. If the
employer successfully overcomes the legal presumption of negligence, he is relieved
of liability. In other words, the burden of proof is on the employer.[46]
The trial courts finding that Completo failed to exercise reasonable care to avoid
collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise to
liability on the part of Completo, as driver, and his employer Abiad. The responsibility
of two or more persons who are liable for quasi-delict is solidary.[47] The civil liability of
the employer for the negligent acts of his employee is also primary and direct, owing to
his own negligence in selecting and supervising his employee.[48] The civil liability of
the employer attaches even if the employer is not inside the vehicle at the time of the
collision.[49]
In the selection of prospective employees, employers are required to examine them as
to their qualifications, experience, and service records. On the other hand, with respect
to the supervision of employees, employers should formulate standard operating
procedures, monitor their implementation, and impose disciplinary measures for
breaches thereof. To establish these factors in a trial involving the issue of vicarious
liability, employers must submit concrete proof, including documentary evidence.[50]
Abiad testified that before he hired Completo, he required the latter to show his bio-
data, NBI clearance, and drivers license. Abiad likewise stressed that Completo was
never involved in a vehicular accident prior to the instant case, and that, as operator of
the taxicab, he would wake up early to personally check the condition of the vehicle
before it is used.
The protestation of Abiad to escape liability is short of the diligence required under the
law. Abiads evidence consisted entirely of testimonial evidence, and the
unsubstantiated and self-serving testimony of Abiad was insufficient to overcome the
legal presumption that he was negligent in the selection and supervision of his driver.
II. On Damages
The CA rightfully deleted the award of actual damages by the RTC because Albayda
failed to present documentary evidence to establish with certainty the amount that he
incurred during his hospitalization and treatment for the injuries he suffered. In the
absence of stipulation, actual damages are awarded only for such pecuniary loss
suffered that was duly proved.[51]
While the amount of actual damages was not duly established with certainty, the Court
recognizes the fact that, indeed, Albayda incurred a considerable amount for the
necessary and reasonable medical expenses, loss of salary and wages, loss of
capacity to earn increased wages, cost of occupational therapy, and harm from
conditions caused by prolonged immobilization. Temperate damages, more than
nominal but less than compensatory damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot, from the nature of
the case, be proved with certainty.[52]Temperate damages must be reasonable under
the circumstances.[53] Thus, the Court finds the award of One Hundred Thousand
Pesos (P100,000.00) as temperate damages reasonable under the circumstances.
Doubtless, Albayda suffered immeasurable pain because of the incident caused by
petitioners negligence. The CA explained:
The court vicariously feels the pain the plaintiff [Albayda] suffered a
number of times. After he was bumped by defendants cab, he cried
in pain. When the doctors bore holes into his left knee, he cried in
pain. When he was tractioned, when he was subjected to an
 operation after operation he suffered pain. When he took the witness
stand to testify, he walked with crutches, his left knee in bandage,
stiff and unfuctional. Pain was written [on] his face. He does deserve
moral damages.[54]

Moral damages are awarded in quasi-delicts causing physical injuries. The permanent
deformity and the scar left by the wounds suffered by Albayba will forever be a reminder
of the pain and suffering that he had endured and continues to endure because of
petitioners negligence. Thus, the award of moral damages in the amount of Five
Hundred Thousand Pesos (P500,000.00) is proper.

Finally, an interest rate of six percent (6%) per annum is due on the amount
of P100,000.00, as temperate damages, and P500,000.00, as moral damages, which
we have awarded. The 6% per annum interest rate on the temperate and moral
damages shall commence to run from the date of the promulgation of this Decision.
Upon finality of the Decision, an interest rate of twelve percent (12%) per annum shall
be imposed on the amount of the temperate and moral damages until full payment
thereof.[55]

The award of attorneys fees is hereby deleted for failure to prove that petitioners acted
in bad faith in refusing to satisfy respondents just and valid claim.

WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and the
Resolution dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No. 68405 are
hereby AFFIRMED with MODIFICATION, viz.:

(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily liable to
pay One Hundred Thousand Pesos (P100,000.00), as temperate damages, and Five
Hundred Thousand Pesos (P500,000.00), as moral damages;

(2) The temperate and moral damages hereby awarded shall earn legal interest at the
rate of six percent (6%) per annum from the date of the promulgation of this Decision.
Upon finality of this Decision, an interest rate of twelve percent (12%) per annum shall
be imposed on the amount of the temperate and moral damages until full payment
thereof.

Costs against petitioners.

SO ORDERED.
 17. Ylarde v. Aquino 163 SCRA 679 who was about thirty meters away. Private respondent wanted to borrow from Banez
the key to the school workroom where he could get some rope. Before leaving. , private
respondent Aquino allegedly told the children "not to touch the stone."

G.R. No. L-33722 July 29, 1988 A few minutes after private respondent Aquino left, three of the four kids, Alonso,
Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all, the
FEDERICO YLARDE and ADELAIDA DORONIO petitioners, remaining Abaga jumped on top of the concrete block causing it to slide down towards
vs. the opening. Alonso and Alcantara were able to scramble out of the excavation on time
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents. but unfortunately fo Ylarde, the concrete block caught him before he could get out,
pinning him to the wall in a standing position. As a result thereof, Ylarde sustained the
following injuries:
Buenaventura C. Evangelista for petitioners.
1. Contusion with hematoma, left inguinal region and suprapubic
Modesto V. Cabanela for respondent Edgardo Aquino. region.

Manuel P. Pastor for respondent Mauro Soriano. 2. Contusion with ecchymosis entire scrotal region.

3. Lacerated wound, left lateral aspect of penile skin with phimosis

GANCAYCO, J.: 4. Abrasion, gluteal region, bilateral.

In this petition for review on certiorari seeking the reversal of the decision of the Court 5. Intraperitoneal and extrapertitoneal extravasation of blood and
of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo urine about 2 liters.
Aquino, et al.," a case which originated from the Court of First Instance of Pangasinan,
We are again caned upon determine the responsibility of the principals and teachers
towards their students or pupils. 6. Fracture, simple, symphesis pubis

In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary 7. Ruptured (macerated) urinary bladder with body of bladder almost
School, a public educational institution located in Tayug, Pangasinan-Private entirely separated from its neck.
respondent Edgardo Aquino was a teacher therein. At that time, the school was fittered
with several concrete blocks which were remnants of the old school shop that was REMARKS:
destroyed in World War II. Realizing that the huge stones were serious hazards to the
schoolchildren, another teacher by the name of Sergio Banez started burying them one 1. Above were incurred by crushing injury.
by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself.
2. Prognosis very poor.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen
of his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being
their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order (Sgd.) MELQUIADES A. BRAVO
to make a hole wherein the stone can be buried. The work was left unfinished. The
following day, also after classes, private respondent Aquino called four of the original
eighteen pupils to continue the digging. These four pupils — Reynaldo Alonso,
Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was
one meter and forty centimeters deep. At this point, private respondent Aquino alone
continued digging while the pupils remained inside the pit throwing out the loose soil
that was brought about by the digging.

When the depth was right enough to accommodate the concrete block, private
respondent Aquino and his four pupils got out of the hole. Then, said private respondent
left the children to level the loose soil around the open hole while he went to see Banez

Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both private
respondents Aquino and Soriano. The lower court dismissed the complaint on the
following grounds: (1) that the digging done by the pupils is in line with their course
called Work Education; (2) that Aquino exercised the utmost diligence of a very cautious
person; and (3) that the demise of Ylarde was due to his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the
Civil Code for his alleged negligence that caused their son's death while the complaint
against respondent Soriano as the head of school is founded on Article 2180 of the
same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre- existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall
be liable for damages caused by their pupils and students or
apprentices, so long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions, both private
respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the death of
the child Ylarde, he being the head of an academic school and not a school of arts and
trades. This isn in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this
Court thoroughly
D discussed the doctrine that under Article 2180 of the Civil Code, it is
only the teacher
u and not the head of an academic school who should be answerable
for torts committed
t by their students. This Court went on to say that in a school of arts
and trades, it yis only the head of the school who can be held liable. In the same case,
We explained:.
1
After an exhaustive examination of the problem, the Court has come
to the conclusion that the provision in question should apply
to all schools, academic as well as non-academic. Where the school
is academic rather than technical or vocational in nature,
responsibility for the tort committed by the student will attach to the
teacher in charge of such student, following the first part of the
provision. This is the general rule. In the case of establishments of
arts and trades, it is the head thereof, and only he, who shall be held
liable as an exception to the general rule. In other words, teachers in
general shall be liable for the acts of their students except where the
school is technical in nature, in which case it is the head thereof who
shall be answerable. Following the canon of reddendo singula
sinquilis 'teachers' should apply to the words "pupils and students'
and 'heads of establishments of arts and trades to the word
"apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent Soriano,
as principal, cannot be held liable for the reason that the school he heads is an
academic school and not a school of arts and trades. Besides, as clearly admitted by
private respondent Aquino, private respondent Soriano did not give any instruction
regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held
liable under Article 2180 of the Civil Code as the teacher-in-charge of the children for
being negligent in his supervision over them and his failure to take the necessary
precautions to prevent any injury on their persons. However, as earlier pointed out,
petitioners base the alleged liability of private respondent Aquino on Article 2176 which
is separate and distinct from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there acts and
omissions on the part of private respondent Aquino amounting to fault or negligence
which have direct causal relation to the death of his pupil Ylarde? Our answer is in the
affirmative. He is liable for damages.
From a review of the record of this case, it is very clear that private respondent Aquino
acted with fault and gross negligence when he: (1) failed to avail himself of services of
adult manual laborers and instead utilized his pupils aged ten to eleven to make an
excavation near the one-ton concrete stone which he knew to be a very hazardous
task; (2) required the children to remain inside the pit even after they had finished
digging, knowing that the huge block was lying nearby and could be easily pushed or
kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them
to level the soil around the excavation when it was so apparent that the huge stone was
at the brink of falling; (4) went to a place where he would not be able to check on the
children's safety; and (5) left the children close to the excavation, an obviously attractive
nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a dangerous
site has a direct causal connection to the death of the child Ylarde. Left by themselves,
it was but natural for the children to play around. Tired from the strenuous digging, they
just had to amuse themselves with whatever they found. Driven by their playful and
adventurous instincts and not knowing the risk they were facing three of them jumped
into the hole while the other one jumped on the stone. Since the stone was so heavy
and the soil was loose from the digging, it was also a natural consequence that the
stone would fall into the hole beside it, causing injury on the unfortunate child caught
by its heavy weight. Everything that occurred was the natural and probable effect of the
negligent acts of private respondent Aquino. Needless to say, the child Ylarde would
not have died were it not for the unsafe situation created by private respondent Aquino
which exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries which resulted in
the death of the child Ylarde were caused by his own reckless imprudence, It should
be remembered that he was only ten years old at the time of the incident, As such, he
is expected to be playful and daring. His actuations were natural to a boy his age. Going
back to the facts, it was not only him but the three of them who jumped into the hole
while the remaining boy jumped on the block. From this, it is clear that he only did what
any other ten-year old child would do in the same situation.
have foreseen that bringing children to an excavation site, and more so, leaving them
there all by themselves, may result in an accident. An ordinarily careful human being
would not assume that a simple warning "not to touch the stone" is sufficient to cast
away all the serious danger that a huge concrete block adjacent to an excavation would
present to the children. Moreover, a teacher who stands in loco parentis to his pupils
would have made sure that the children are protected from all harm in his company.
We close by categorically stating that a truly careful and cautious person would have
acted in all contrast to the way private respondent Aquino did. Were it not for his gross
negligence, the unfortunate incident would not have occurred and the child Ylarde
would probably be alive today, a grown- man of thirty-five. Due to his failure to take the
necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish all
these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the
questioned judgment of the respondent court is REVERSED and SET ASIDE and
another judgment is hereby rendered ordering private respondent Edagardo Aquino to
pay petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00

In ruling that the child Ylarde was imprudent, it is evident that the lower court did not (3) Moral damages 20,000.00
consider his age and maturity. This should not be the case. The degree of care required
to be exercised must vary with the capacity of the person endangered to care for SO ORDERED.
himself. A minor should not be held to the same degree of care as an adult, but his
conduct should be judged according to the average conduct of persons of his age and
experience. 5 The standard of conduct to which a child must conform for his own
protection is that degree of care ordinarily exercised by children of the same age,
capacity, discretion, knowledge and experience under the same or similar
circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with reckless
imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their
Work Education. A single glance at the picture showing the excavation and the huge
concrete block 7 would reveal a dangerous site requiring the attendance of strong,
mature laborers and not ten-year old grade-four pupils. We cannot comprehend why
the lower court saw it otherwise when private respondent Aquino himself admitted that
there were no instructions from the principal requiring what the pupils were told to do.
Nor was there any showing that it was included in the lesson plan for their Work
Education. Even the Court of Appeals made mention of the fact that respondent Aquino
decided all by himself to help his co-teacher Banez bury the concrete remnants of the
old school shop. 8 Furthermore, the excavation should not be placed in the category of
school gardening, planting trees, and the like as these undertakings do not expose the
children to any risk that could result in death or physical injuries.

The contention that private respondent Aquino exercised the utmost diligence of a very
cautious person is certainly without cogent basis. A reasonably prudent person would
 18. Jarco Marketing Corporation v. Honorable CA GR No. 129792
[G.R. No. 129792. December 21, 1999]
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and
ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS,
CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision[1] of the Court of
Appeals in C.A. G.R. No. CV 37937 and the resolution[2]denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment
of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119
and ordered petitioners to pay damages and attorneys fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvels Department
Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are
the stores branch manager, operations manager, and supervisor,
respectively. Private respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd
floor of Syvels Department Store, Makati City. CRISELDA was signing her credit
card slip at the payment and verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the stores gift-
wrapping counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the assistance of the people
around in lifting the counter and retrieving ZHIENETH from the floor.[3]
ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old.[4]
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate[5] issued by ZHIENETHs attending doctor described
the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and wake and
funeral expenses[6] which they had incurred. Petitioners refused to
pay. Consequently, private respondents filed a complaint for damages, docketed
as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for
actual damages, P300,000 for moral damages, P20,000 for attorneys fees and an
unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the
injuries and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to
freely roam around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the counter, triggering
its eventual collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor collapsed for the past
fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection, supervision
and control of its employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that the complaint was
malicious for which they suffered besmirched reputation and mental
anguish. They sought the dismissal of the complaint and an award of moral and
exemplary damages and attorneys fees in their favor.
In its decision[7] the trial court dismissed the complaint and counterclaim after
finding that the preponderance of the evidence favored petitioners. It ruled that
the proximate cause of the fall of the counter on ZHIENETH was her act of clinging
to it. It believed petitioners witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure falling on top of
her, pinning her stomach. In contrast, none of private respondents witnesses
testified on how the counter fell. The trial court also held that CRISELDAs
negligence contributed to ZHIENETHs accident.
 In absolving petitioners from any liability, the trial court reasoned that the
counter was situated at the end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance.[8] The
counter was higher than ZHIENETH. It has been in existence for fifteen years. Its
structure was safe and well-balanced. ZHIENETH, therefore, had no business
climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial
court its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH;
(3) petitioners were not negligent in the maintenance of the counter; and (4)
petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to
the conclusive presumption that a child below nine (9) years is incapable of
contributory negligence.And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to have
propped herself on the counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she was. Also, the
testimony of one of the stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the
Makati Medical Center belied petitioners theory that ZHIENETH climbed the
counter.Gonzales claimed that when ZHIENETH was asked by the doctor what
she did, ZHIENETH replied, [N]othing, I did not come near the counter and the
counter just fell on me.[9]Accordingly, Gonzales testimony on ZHIENETHs
spontaneous declaration should not only be considered as part of res gestae but
also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment that she
was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause
of ZHIENETHs death, was petitioners negligence in failing to institute measures
to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that
ZHIENETHs death while unfortunate and tragic, was an accident for which neither
CRISELDA nor even ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial courts rejection of Gonzales
testimony as unworthy of credence.
As to private respondents claim that the counter should have been nailed to
the ground, petitioners justified that it was not necessary. The counter had been
in existence for several years without any prior accident and was deliberately
placed at a corner to avoid such accidents. Truth to tell, they acted without fault
or negligence for they had exercised due diligence on the matter. In fact, the
criminal case[10] for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a verdict of acquittal
was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and
reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted L[11] with a top wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could
cause. But the latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident that befell ZHIENETH
could have been avoided had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for some time without a prior
incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7)
years old at the time of the incident, was absolutely incapable of negligence or
other tort. It reasoned that since a child under nine (9) years could not be held
liable even for an intentional wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It also absolved CRISELDA
of any negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account.[12] It denied an award for funeral expenses for lack
of proof to substantiate the same. Instead, a compensatory damage of P50,000
was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision,[13] thus:
WHEREFORE, premises considered, the judgment of the lower court is SET
ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of Zhieneth
Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with
legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same
was denied in the Court of Appeals resolution[14] of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the
trial court. They stress that since the action was based on tort, any finding of
negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETHs act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDAs contributory negligence,
through her failure to provide the proper care and attention to her child while inside
the store, nullified private respondents claim for damages. It is also for these
reasons that parents are made accountable for the damage or injury inflicted on
others by their minor children. Under these circumstances, petitioners could not
be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated
from Syvels at the time he testified; hence, his testimony might have been
tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of Appeals are substantiated by
the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospitals emergency room should
receive credence; and finally, ZHIENETHs part of the res gestae declaration that
she did nothing to cause the heavy structure to fall on her should be considered
as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant.[15] It is a fortuitous circumstance, event or happening;
an event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens.[16]
On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent
and reasonable man would not do.[17] Negligence is the failure to observe, for the
protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person
suffers injury.[18]
Accident and negligence are intrinsically contradictory; one cannot exist with
the other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence.[19]
The test in determining the existence of negligence is enunciated in the
landmark case of Picart v. Smith,[20] thus: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is guilty of
negligence.[21]
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETHs death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the
incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while
the child was being treated?
A At the emergency room we were all surrounding the child. And when the
doctor asked the child what did you do, the child said nothing, I did not
come near the counter and the counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.[22]
This testimony of Gonzales pertaining to ZHIENETHs statement formed (and
should be admitted as) part of the res gestae under Section 42, Rule 130 of the
Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and giving
it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions.[23] All that is required for their admissibility as part of the res gestae is
that they be made or uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as witnessed by the
person who testified in court. Under the circumstances thus described, it is
unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We therefore accord credence
to Gonzales testimony on the matter, i.e., ZHIENETH performed no act that
facilitated her tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counters base.
Gonzales earlier testimony on petitioners insistence to keep and maintain
the structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you
please describe the gift wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that counter
and since it is not nailed and it was only standing on the floor, it was shaky.
xxx
Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on
[sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the
verification counter. And since the top of it was heavy and considering
that it was not nailed, it can collapse at anytime, since the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr.
Maat is fond of putting display decorations on tables, he even told me
that I would put some decorations. But since I told him that it
not [sic] nailed and it is shaky he told me better inform also the company
about it. And since the company did not do anything about the counter,
so I also did not do anything about the counter.[24] [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of
Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter where
you were assigned in January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to carry
that counter to another place. I told him that the counter needs nailing
and it has to be nailed because it might cause injury or accident to
another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on
February 12, 1983, will you please describe that to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was
shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter
was shaky?
A She told me Why do you have to teach me. You are only my subordinate
and you are to teach me? And she even got angry at me when I told her
that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or
any employee of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter after
the accident happened.[25] [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet, neither
initiated any concrete action to remedy the situation nor ensure the safety of the
stores employees and patrons as a reasonable and ordinary prudent man would
have done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed
to establish that the formers testimonies were biased and tainted with
partiality. Therefore, the allegation that Gonzales and Guevarras testimonies were
blemished by ill feelings against petitioners since they (Gonzales and Guevarra)
were already separated from the company at the time their testimonies were
offered in court was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing the deportment of
the witnesses.[26] However, the rule admits of exceptions such as when its
evaluation was reached arbitrarily or it overlooked or failed to appreciate some
facts or circumstances of weight and substance which could affect the result of
the case.[27] In the instant case, petitioners failed to bring their claim within the
exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that they are incapable
of contributory negligence. In his book,[28] former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed to
have acted without discernment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption from criminal liability obtains
in a case of a person over nine and under fifteen years of age, unless it is shown
that he has acted with discernment.Since negligence may be a felony and a quasi-
delict and required discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption of lack of discernment or
incapacity for negligence in the case of a child over nine but under fifteen years
of age is a rebuttable one, under our law. The rule, therefore, is that a child under
nine years of age must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
 Even if we attribute contributory negligence to ZHIENETH and assume that
she climbed over the counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and sturdy. For if that was the truth,
a frail six-year old could not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court of Appeals and a scrutiny
of the evidence[29]on record reveal otherwise, i.e., it was not durable after
all. Shaped like an inverted L, the counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting area and its base was not
secured.[30]
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to the latters
hand.[31] CRISELDA momentarily released the childs hand from her clutch when
she signed her credit card slip. At this precise moment, it was reasonable and
usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot away from her mother; and the
gift-wrapping counter was just four meters away from CRISELDA.[32] The time and
distance were both significant. ZHIENETH was near her mother and did not loiter
as petitioners would want to impress upon us. She even admitted to the doctor
who treated her at the hospital that she did not do anything; the counter just fell
on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED
and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R.
No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
 19. United States v. Bonifacio 34 Phil 65
G.R. No. L-10563 March 2, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
ANTONIO BONIFACIO, defendant-appellant.
William A. Kincaid and Thomas L. Hartigan for appellant.
Acting Attorney-General Zaragoza for appellee.
CARSON, J.:
The appellant in this case was charged in the court below with homicidio por
imprudencia temeraria (homicide committed with reckless negligence), and was
convicted of homicidio committed with simple negligence and sentenced to four months
and one day of arresto mayor and to pay the costs of the proceedings.
The information charges the commission of the offense as follows:
On or about the 31st day of October of the present year, 1913, in the barrio of
Santa Rita of the municipality of Batangas, Batangas, the accused, being an
engineer and while conducting the freight train which was going to the
municipality of Bauan, at about 10 o'clock in the morning of the said day saw
that Eligio Castillo, a deaf-mute, was traveling along the railroad track, and as
the said Castillo did not get off of the said track in spite of the whistle or
warnings given by the accused, the accused did maliciously and criminally
cause the said train to run over the said Castillo, thereby killing him instantly;
an act committed with violation of law.
On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run down and killed,
while attempting to cross the railroad track in the barrio of Santa Rita, Batangas, by an
engine on which the accused was employed as engineer. The deaf-mute stepped out
on the track from an adjoining field shortly before the accident, walked along one side
of the track for some little distance and was killed as he attempted, for some unknown
reason, to cross over to the other side.
When the accused engineer first saw the deceased, he was walking near the track, in
the same direction as that in which the train was running. The train, a heavy freight
train, had just rounded a curve, and the man in front was about 175 meters ahead of
the engine. The engineer immediately blew his whistle twice, and noticing, a few
moments afterwards, that the man in front did not respond to the warning by stepping
aside from the track, he tried to slow down the engine, but did not succeed in stopping
in time to avoid running down the pedestrian. He did not attempt to stop his engine
when he first saw the man walking along the side of the track; but he claims that he did
all in his power to slow down a few moments afterwards, that is to say after he had
blown his whistle without apparently attracting the attention of the pedestrian, who,
about that time, turned and attempted to cross the track.
The only evidence as to the rate of speed at which the train was running at the time of
the accident was the testimony of the accused himself, who said that his indicator
showed that he was travelling at the rate of 35 kilometers an hour, the maximum speed
permitted under the railroad regulations for freight trains on that road.
There was a heavy decline in the track from the turn at the curve to a point some
distance beyond the place where the accident took place, and the undisputed evidence
discloses that a heavy freight train running at the rate of 35 miles an hour could not be
brought to a stop on that decline in much less than one hundred and fifty meters.
We think that the meter statement of facts, as disclosed by the undisputed evidence of
record, sufficiently and conclusive demonstrates that the death of the deaf-mute was
the result of a regrettable accident, which was unavoidable so far as this accused was
concerned.
It has been suggested that, had the accused applied his brakes when he first saw the
man walking near the track, after his engine rounded the curve, he might have stopped
the train in time to have avoided the accident, as it is admitted that the distance from
the curve to the point where the accident occurred was about 175 meters.
But there is no obligation on an engine driver to stop, or even to slow down his engine,
when he sees an adult pedestrian standing or walking on or near the track, unless there
is something in the appearance or conduct of the person on foot which would cause a
prudent man to anticipate the possibility that such person could not, or would not avoid
the possibility of danger by stepping aside. Ordinarily, all that may properly be required
of an engine driver under such circumstances is that he give warning of his approach,
by blowing his whistle or ringing his bell until he is assured that the attention of the
pedestrian has been attracted to the oncoming train.
Of course it is the duty of an engine driver to adopt every measure in his power to avoid
the infliction of injury upon any person who may happen to be on the track in front of
his engine, and to slow down, or stop altogether if that be necessary, should he have
reason to believe that only by doing so can an accident be averted.
But an engine driver may fairly assume that all persons walking or standing on or near
the railroad track, except children of tender years, are aware of the danger to which
they are exposed; and that they will take reasonable precautions to avoid accident, by
looking and listening for the approach of trains, and stepping out of the way of danger
when their attention is directed to an oncoming train.
Any other rule would render it impracticable to operate railroads so as to secure the
expeditious transportation of passengers and freight which the public interest demands.
If engine drivers were required to slow down or stop their trains every time they see a
pedestrian on or near the track of the railroad it might well become impossible for them
to maintain a reasonable rate of speed. As a result the general traveling public would
be exposed to great inconvenience and delay which may be, and is readily avoided by
requiring all persons approaching a railroad track, to take reasonable precautions
against danger from trains running at high speed.
There was nothing in the appearance or conduct of the victim of the accident in the cast
at bar which would have warned the accused engine driver that the man walking along
the side of the tract was a deaf-mute, and that despite the blowing of the whistle and
the noise of the engine he was unconscious of his danger. It was not until the pedestrian
attempted to cross the track, just in front of the train, that the accused had any reason
to believe that his warning signals had not been heard, and by that time it was too late
to avoid the accident. Under all the circumstances, we are satisfied that the accused
was without fault; and that the accident must be attributed wholly to the reckless
negligence of the deaf-mute, in walking on the track without taking the necessary
precautions to avoid danger from a train approaching him from behind.
The trial judge, although he was satisfied that the accused was not guilty of reckless
negligence, held that he was guilty of homicide through simple negligence,
accompanied by a breach of speed regulations, and imposed the penalty prescribed
for that offense in article 568 of the Penal Code.
The only evidence as to the speed at which the train was running at the time of the
accident was the testimony of the accused himself, who said that before the accident
occurred his indicator showed that he was running at the rate of 35 kilometers an hour,
the maximum speed authorized under the railroad regulations. From this statement of
the accused, taken together with the evidence disclosing that the train was running on
a down grade at the time when the accident occurred, the trial judge inferred that the
train must have been running at more than 35 miles an hour at that moment, that is to
say at a speed in excess of that allowed under the railroad regulations.
We are of opinion, however, that the evidence does not sustain a finding, beyond a
reasonable doubt, that the train was running at more than 35 miles an hour at the time
when the accident occurred. We think that the statement of the accused engineer that
the indicator or his engine showed that he was running at 35 miles an hour before the
accident referred to the time immediately preceding the accident. Even if it were true,
as the trial judge inferred from his evidence, that the accused looked at the indicator
several seconds before the accident, and before the train entered on the down-grade
some 175 yards from the place at which it occurred, it does not necessarily follow that
the speed of travel was increased thereafter beyond the limit prescribed by regulations.
That would depend to some extent on the steam pressure maintained on the engine,
and perhaps upon other factors not developed in the record.
Mere conjecture, and inferences unsupported by satisfactory evidence, are not
sufficient to establish a material finding of fact upon which a finding of guilt, beyond a
reasonable doubt, can be sustained.
Moreover, even if it were true that the train was running at a speed slightly in excess of
the limit prescribed by regulations, just before the accident took place, that fact would
not justify or require the imposition of the penalty prescribed in article 568 of the
Criminal Code, it affirmatively appearing that the slight excess of speed had no possible
causal relation to the accident.
Granting it to be true, as found by the trial judge, that the train had gained some small
addition in speed beyond the authorized rate of travel, as a result of the fact that it was
running on down grade for about one hundred meters before the accident occurred, it
affirmatively appears from the statement of facts set forth above, that, under all the
circumstances, the accident must have taken place whether the speed had been
slightly under rather than slightly over the limit prescribed by regulation, and that it was
due wholly to the negligent conduct of the deceased. The provisions of article 568 of
the Criminal Code under which the accused was convicted are as follows:
xxx xxx xxx
Any person who, while violating any regulation, shall, by any act of imprudence
or negligence not amounting to reckless imprudence, commit an offense, shall
suffer the penalty of arresto mayor in its medium and maximum degrees.
This does not mean that in every case in which one accidentally injures or kills another
he is criminally liable therefor, if at the moment he happens to be guilty of a violation of
some petty regulation (reglamento). The injury or death must have resulted from some
"imprudence or negligence" (imprudencia o negligencia) on his part. True it need only
be slight negligence, if accompanied by a violation of the regulations, but the relation
of cause and effect must exist between the negligence or imprudence of the accused
and the injury inflicted. If it appears that the injury in no wise resulted from the violation
of the regulations, or the negligent conduct of the accused, he incurs no criminal liability
under the provisions of this article.
Viada, in his commentaries on this article of the Penal Code (vol. 3, p. 685), sets out
the following question and answer which clearly discloses that a conviction thereunder
cannot be maintained, unless there was culpable negligence in the violation of a duly
prescribed regulation; and unless, further, the latter was the proximate and immediate
cause of the injury inflicted:
Question No. 17. — A pharmacist left his store forgetting and leaving behind
the keys to the case where the most powerful drugs were kept. During his
absence his clerk filled a prescription which he believed was duly made out
by a physician but which, in fact, was signed by an unauthorized person. The
prescription called for certain substances which were afterwards employed to
procure an abortion. These substances, according to a medical report, were
of a poisonous and extremely powerful nature such as should be most
carefully safeguarded and only expended after ratification of the prescription
in accordance with article 20 of the ordinance relating to the practice of
pharmacy. Under these circumstances would it be proper to consider
the pharmacist as guilty of the offense of simple imprudence with violation of
the regulation of the said faculty? The Supreme Court has decided this
question in the negative on the ground that the fact of the pharmacist having
forgotten and left behind, during the short time he was out walking, the key of
the closet in which in conformity with the pharmacy ordinances, he kept the
most powerful and active drugs, properly considered, does not constitute
the culpable negligence referred to in article 581 of the Penal Code, nor was
it the proximate and immediate cause of the said prescription being filled in
his store without being properly ratified by the physician who signed it, as
 required by the said ordinances. The Court held, therefore, that the trial court
committed an error of law in holding the appellant liable. (Decision of
December 23, 19881; Official Gazette of April 14, 1882.)

See also the recent decision of the Tribunal Supremo de España dated July 11, 1906,
wherein the doctrine is reaffirmed in a case involving the alleged negligence of certain
railroad employees in handling railroad cars.

Doubtless a presumption of negligence will frequently arise from the very fact that an
accident occurred at the time when the accused was violating a regulation; especially
if the regulation has for its object the avoidance of such an accident. But this
presumption may, of course, be rebutted in criminal as well as in civil cases by
competent evidence. In the Federal Court of the United States the rule is stated as
follows:

Where a ship at the time of collision is in actual violation of a statutory rule

intended to prevent collisions the burden is upon her of showing that her fault
could not have been a contributory cause of the collision. (7 Cyc., 370 and
numerous other cases there cited.)

The evidence of record in the case at bar clearly and satisfactorily discloses that even
if the train was running at a speed slightly in excess of the maximum speed prescribed
in the regulations, that fact had no causal relation to the accident and in no wise
contributed to it.

The judgment convicting and sentencing the appellant in this case should be reversed,
and the accused acquitted of the offense with which he is charged in the information,
and his bail bond exonerated, with the costs of both instances de officio. So ordered.

Arellano, C. J., Johnson, Trent, and Araullo, JJ., concur.

 20. Cullion Ice, Fish and Electric Co. V. Philippine Motors Corporation 54 Phil 129
G.R. No. L-32611 November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish
& Electric Co., Inc., for the purpose of recovering from the Philippine Motors
Corporation the sum of P11,350, with interest and costs. Upon hearing the cause the
trial court gave judgment in favor of the plaintiff to recover of the defendant the sum of
P9,850, with interest at 6 per centum per annum from March 24,1927, the date of the
filing of the complaint, until satisfaction of the judgment, with costs. From this judgment
the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident
with which we are here concerned, H.D. Cranston was the representative of the plaintiff
in the City of Manila. At the same time the plaintiff was the registered owner of the
motor schooner Gwendoline, which was used in the fishing trade in the Philippine
Islands. In January, 1925, Cranston decided, if practicable, to have the engine on
the Gwendoline changed from a gasoline consumer to a crude oil burner, expecting
thereby to effect economy in the cost of running the boat. He therefore made known
his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said
company, that he might make inquiries of the Philippine Motors Corporations, which
had its office on Ongpin Street, in the City of Manila. Cranston accordingly repaired to
the office of the Philippine Motors Corporation and had a conference with C.E. Quest,
its manager, who agreed to do the job, with the understanding that payment should be
made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an
automobile agency, but, under its charter, it had authority to deal in all sorts of
machinery engines and motors, as well as to build, operate, buy and sell the same and
the equipment therof. Quest, as general manager, had full charge of the corporations
in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited
the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting the
change in the engine was begun and conducted under the supervision of Quest, chiefly
by a mechanic whom Quest took with him to the boat. In this work Quest had the
assistance of the members of the crew of the Gwendoline, who had been directed by
Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the
principal thing necessary to accomplish the end in view was to install a new carburetor,
and a Zenith carburetor was chosen as the one most adapted to the purpose. After this
appliance had been installed, the engine was tried with gasoline as a fuel, supplied
from the tank already in use. The result of this experiment was satisfactory. The next
problem was to introduce into the carburetor the baser fuel, consisting of a low grade
of oil mixed with distillate. For this purpose a temporary tank to contain the mixture was
placed on deck above and at a short distance from the compartment covering the
engine. This tank was connected with the carburetor by a piece of tubing, which was
apparently not well fitted at the point where it was connected with the tank. Owing to
this fact the fuel mixture leaked from the tank and dripped sown into the engine
compartment. The new fuel line and that already in use between the gasoline tank and
carburetor were so fixed that it was possible to change from the gasoline fuel to the
mixed fuel. The purpose of this arrangement was to enable the operator to start the
engine on gasoline and then, after the engine had been operating for a few moments,
to switch to the new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its connections, it was
observed that the carburetor was flooding, and that the gasoline, or other fuel, was
trickling freely from the lower part to the carburetor to the floor. This fact was called to
Quest's attention, but he appeared to think lightly of the matter and said that, when the
engine had gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken out
into the bay for a trial run at about 5 p.m. or a little later, on the evening of January
30,1925. The first part of the course was covered without any untoward development,
other than he fact that the engine stopped a few times, owing no doubt to the use of an
improper mixture of fuel. In the course of the trial Quest remained outside of the engine
compartment and occupied himself with making distillate, with a view to ascertaining
what proportion of the two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near
Cavite, the engine stopped, and connection again had to be made with the gasoline
line to get a new start. After this had been done the mechanic, or engineer, switched to
the tube connecting with the new mixture. A moment later a back fire occurred in the
cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly
the carburetor and adjacent parts were covered with a mass of flames, which the
members of the crew were unable to subdue. They were therefore compelled, as the
fire spread, to take to a boat, and their escape was safely effected, but
the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold,
brought only the sum of P150. The value of the boat, before the accident occured, as
the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was
chargeable to the negligence and lack of skill of Quest. The temporary tank in which
the mixture was prepared was apparently at too great an elevation from the carburetor,
with the result that when the fuel line was opened, the hydrostatic pressure in the
carburetor was greater than the delicate parts of the carburetor could sustain. This was
no doubt the cause of the flooding of the carburetor; and the result was that; when the
back fire occurred, the external parts of the carburetor, already saturated with gasoline,
burst into flames, whence the fire was quickly communicated to the highly inflammable
material near-by. Ordinarily a back fire from an engine would not be followed by any
disaster, but in this case the leak along the pipe line and the flooding of the carburetor
had created a dangerous situation, which a prudent mechanic, versed in repairs of this
nature, would have taken precautions to avoid. The back fire may have been due either
to the fact that the spark was too advanced or the fuel improperly mixed.
negligence of its manager, we are nevertheless of the opinion that the proof shows by
a clear preponderance that the accident to the Gwendolineand the damages resulting
therefrom are chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured,
and after Quest had ceased to be manager of the defendant corporation and had gone
back to the United States. Upon these facts, the defendant bases the contention that
the action should be considered stale. It is sufficient reply to say that the action was
brought within the period limited by the statute of limitations and the situation is not one
where the defense of laches can be properly invoked.

In this connection it must be remembered that when a person holds himself out as being It results that the judgment appealed from, awarding damages to the plaintiff in the
competent to do things requiring professional skill, he will be held liable for negligence amount of P9,850, with interest, must be affirmed; and it is so ordered, with costs
if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which against the appellant.
he attempts to do. The proof shows that Quest had had ample experience in fixing the
engines of automobiles and tractors, but it does not appear that he was experienced in
the doing of similar work on boats. For this reason, possibly the dripping of the mixture
form the tank on deck and the flooding of the carburetor did not convey to his mind an
adequate impression of the danger of fire. But a person skilled in that particular sort of
work would, we think have been sufficiently warned from those circumstances to cause
him to take greater and adequate precautions against the danger. In other words Quest
did not use the skill that would have been exhibited by one ordinarily expert in repairing
gasoline engines on boats. There was here, in our opinion, on the part of Quest, a
blameworthy antecedent inadvertence to possible harm, and this constitutes
negligence. The burning of the Gwendoline may be said to have resulted from accident,
but this accident was in no sense an unavoidable accident. It would not have occured
but for Quest's carelessness or lack of skill. The test of liability is not whether the injury
was accidental in a sense, but whether Quest was free from blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack
of skill or negligence in effecting the changes which Quest undertook to accomplish;
and even supposing that our theory as to the exact manner in which the accident
occurred might appear to be in some respects incorrect, yet the origin of the fire in not
so inscrutable as to enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had
control of the Gwendoline during the experimental run, the defendant corporation was
in the position of a bailee and that, as a consequence, the burden of proof was on the
defendant to exculpate itself from responsibility by proving that the accident was not
due to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest
was not in charge of the navigation of the boat on this trial run. His employment
contemplated the installation of new parts in the engine only, and it seems rather
strained to hold that the defendant corporation had thereby become bailee of the boat.
As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who
repairs a coach without taking it to his shop, are not bailees, and their rights and
liabilities are determined by the general rules of law, under their contract. The true
bailee acquires possession and what is usually spoken of as special property in the
chattel bailed. As a consequence of such possession and special property, the bailee
is given a lien for his compensation. These ideas seem to be incompatible with the
situation now under consideration. But though defendant cannot be held liable in the
supposition that the burden of proof had not been sustained by it in disproving the
 21. Smith Bell Dodwell Shipping Agency Corporation v. Borja GR No. 143008
[G.R. No. 143008. June 10, 2002]
SMITH BELL DODWELL SHIPPING AGENCY CORPORATION, petitioner,
vs. CATALINO BORJA and INTERNATIONAL TO WAGE AND
TRANSPORT CORPORATION, respondents.
DECISION
PANGANIBAN, J.:
The owner or the person in possession and control of a vessel is liable for all
natural and proximate damages caused to persons and property by reason of
negligence in its management or navigation. The liability for the loss of the earning
capacity of the deceased is fixed by taking into account the net income of the victim at
the time of death -- of the incident in this case -- and that persons probable life
expectancy.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, challenging the March 6, 2000 Decision[1] and the April 25, 2000 Resolution[2] of
the Court of Appeals[3] (CA) in CA-GR CV No. 57470. The assailed Decision disposed
as follows:
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The
questioned decision of the lower court is hereby AFFIRMED in toto. No pronouncement
as to costs.[4]
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
It appears that on September 23, 1987, Smith Bell [herein petitioner] filed a written
request with the Bureau of Customs for the attendance of the latters inspection team
on vessel M/T King Family which was due to arrive at the port of Manila on September
24, 1987.
Said vessel contained 750 metric tons of alkyl benzene and methyl methacrylate
monomer.
On the same day, Supervising Customs Inspector Manuel Ma. D. Nalgan instructed
[Respondent Catalino Borja] to board said vessel and perform his duties as inspector
upon the vessels arrival until its departure. At that time, [Borja] was a customs inspector
of the Bureau of Customs receiving a salary of P31,188.25 per annum.
"At about 11 oclock in the morning on September 24, 1987, while M/T King Family was
unloading chemicals unto two (2) barges [--] ITTC 101 and CLC-1002 [--] owned by
[Respondent] ITTC, a sudden explosion occurred setting the vessels afire. Upon
hearing the explosion, [Borja], who was at that time inside the cabin preparing reports,
ran outside to check what happened. Again, another explosion was heard.
Seeing the fire and fearing for his life, [Borja] hurriedly jumped over board to save
himself. However, the [water] [was] likewise on fire due mainly to the spilled chemicals.
Despite the tremendous heat, [Borja] swam his way for one (1) hour until he was
rescued by the people living in the squatters area and sent to San Juan De Dios
Hospital.
After weeks of intensive care at the hospital, his attending physician diagnosed [Borja]
to be permanently disabled due to the incident. [Borja] made demands against Smith
Bell and ITTC for the damages caused by the explosion. However, both denied
liabilities and attributed to each other negligence.[5]
The trial court[6] (RTC) ruled in favor of Respondent Borja and held petitioner liable
for damages and loss of income. The RTC disposed as follows:
WHEREFORE, premises considered, judgment is hereby rendered ordering [Petitioner]
Smith Bell Dodwell [S]hipping Agency Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual damages for loss of earning capacity:
2. The amount of P100,000.00 for moral damages; and
3. The amount of P50,000.00 for and as reasonable attorneys fees.
The cross-claim of [Petitioner] Smith Bell Dodwell Shipping Agency Corporation against
co-defendant International Towage and Transport Corporation and the latters
counterclaim against [Borja] and cross-claim with compulsory counterclaim against
Smith Bell are hereby ordered dismissed.[7]
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner that it be exonerated
from liability for Respondent Borjas injuries. Contrary to the claim of petitioner that no
physical evidence was shown to prove that the explosion had originated from its vessel,
the CA held that the fire had originated from M/T King Family. This conclusion was
amply supported by the testimonies of Borja and Eulogio Laurente (the eyewitness of
International Towage and Transport Corporation or ITTC) as well as by the investigation
conducted by the Special Board of Marine Inquiry and affirmed by the secretary of the
Department of National Defense. On the other hand, the RTC, which the CA sustained,
had not given probative value to the evidence of petitioner, whose sole eyewitness had
not shown up for cross-examination.
Hence, this Petition.[8]
The Issues
In its Memorandum,[9] petitioner raises the following issues:
1. Whether petitioner should be held liable for the injuries of Respondent Catalino Borja.
2. Whether Respondent ITTC should be held liable for the injuries of Respondent
Catalino Borja.
3. Assuming without admitting that Respondent Catalino Borja is entitled to damages,
whether Respondent Borja is entitled to the amount of damages awarded to him by the
trial court.[10]
Simply put, these issues can be summed up in these two questions: (1) Who, if
any, is liable for Borjas injuries? (2) What is the proper amount of liability?
This Courts Ruling
The Petition is partly meritorious.
First Issue:
Responsibility for Injuries
Petitioner avers that both lower courts labored under a misapprehension of the
facts. It claims that the documents adduced in the RTC conclusively revealed that the
explosion that caused the fire on M/T King Family had originated from the barge ITTC-
101, a conclusion based on three grounds. First, the Survey Report (Exh. 10) dated
October 21, 1987 submitted by the Admiral Surveyors and Adjusters, Inc., showed that
no part of M/T King Family sustained any sharp or violent damage that would otherwise
be observed if indeed an explosion had occurred on it. On the other hand, the fact that
the vessel sustained cracks on its shell plating was noted in two Survey Reports from
Greutzman Divers Underwater Specialist, dated October 6, 1987 (Exh. 11), and during
the underwater inspection on the sunken barge ITTC-101.
Second, external fire damage on the hull of M/T King Family indicated that the fire
had started from outside the vessel and from ITTC-101. The port side of the vessel to
which the ITTC barge was tied was completely gutted by fire, while the starboard side
to which the barge CLC-1002 was tied sustained only slight fire damage.
Third, testimonial evidence proved that the explosion came from the barge of the
ITTC and not from its vessel. Security Guard Vivencio Estrella testified that he had seen
the sudden explosion of monomer on the barge with fire that went up to about 60
meters. Third Mate Choi Seong Hwan and Second Mate Nam Bang Choun of M/T King
Family narrated that while they were discharging the chemicals, they saw and heard an
explosion from the barge ITTC-101. Chief Security Guard Reynaldo Patron, in turn,
testified that he was 7 to 10 meters away from the barge when he heard the explosion
from the port side of M/T King Family and saw the barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the fire and the
explosion had originated from petitioners vessel. Said the trial court:
The attempts of [Petitioner] Smith Bell to shift the blame on x x x ITTC were all for
naught. First, the testimony of its alleged eyewitness was stricken off the record for his
failure to appear for cross-examination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge ITTC-101 were all denied admission
by the [c]ourt for being, in effect, hearsay (pp. 335 and 362). x x x Thus, there is nothing
in the record to support [petitioners] contention that the fire and explosion originated
from barge ITTC-101.[11]
We find no cogent reason to overturn these factual findings. Nothing is more
settled in jurisprudence than that this Court is bound by the factual findings of the Court
of Appeals when these are supported by substantial evidence and are not under any of
the exceptions in Fuentes v. Court of Appeals;[12] more so, when such findings affirm
those of the trial court.[13] Verily, this Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to another. It is the failure
to observe that degree of care, precaution and vigilance that the circumstances justly
demand, whereby that other person suffers injury.[14] Petitioners vessel was carrying
chemical cargo -- alkyl benzene and methyl methacrylate monomer.[15] While knowing
that their vessel was carrying dangerous inflammable chemicals, its officers and crew
failed to take all the necessary precautions to prevent an accident. Petitioner was,
therefore, negligent.
The three elements of quasi delict are: (a) damages suffered by the plaintiff, (b)
fault or negligence of the defendant, and (c) the connection of cause and effect between
the fault or negligence of the defendant and the damages inflicted on the plaintiff.[16] All
these elements were established in this case. Knowing fully well that it was carrying
dangerous chemicals, petitioner was negligent in not taking all the necessary
precautions in transporting the cargo.
As a result of the fire and the explosion during the unloading of the chemicals from
petitioners vessel, Respondent Borja suffered the following damage: and injuries: (1)
chemical burns of the face and arms; (2) inhalation of fumes from burning chemicals;
(3) exposure to the elements [while] floating in sea water for about three (3) hours; (4)
homonymous hemianopsia or blurring of the right eye [which was of] possible toxic
origin; and (5) [c]erebral infract with neo-vascularization, left occipital region with right
sided headache and the blurring of vision of right eye.[17]
Hence, the owner or the person in possession and control of a vessel and the
vessel are liable for all natural and proximate damage caused to persons and property
by reason of negligent management or navigation.[18]
Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of damages awarded
by the lower courts. It disputes the use of his gross earning as basis for the computation
of the award for loss of earning capacity. Both courts, in computing the value of such
loss, used the remaining years of the victim as a government employee and the amount
he had been receiving per annum at the time of the incident.
Counsel for Respondent Borja, on the other hand, claims that petitioner had no
cause to complain, because the miscomputation had ironically been in its favor. The
multiplier used in the computation was erroneously based on the remaining years in
government service, instead of the life expectancy, of the victim. Borjas counsel also
points out that the award was based on the formers meager salary in 1987, or about
23 years ago when the foreign exchange was still P14 to $1. Hence, the questioned
award is consistent with the primary purpose of giving what is just, moral and legally
due the victim as the aggrieved party.
Both parties have a point. In determining the reasonableness of the damages
awarded under Article 1764 in conjunction with Article 2206 of the Civil Code, the
factors to be considered are: (1) life expectancy (considering the health of the victim
and the mortality table which is deemed conclusive) and loss of earning capacity; (b)
pecuniary loss, loss of support and service; and (c) moral and mental sufferings.[19] The
loss of earning capacity is based mainly on the number of years remaining in the
persons expected life span. In turn, this number is the basis of the damages that shall
be computed and the rate at which the loss sustained by the heirs shall be fixed.[20]
The formula for the computation of loss of earning capacity is as follows:[21]
Net earning capacity = Life expectancy x [Gross Annual Income - Living
Expenses (50% of gross annual income)], where life expectancy = 2/3
(80 - the age of the deceased).[22]
Petitioner is correct in arguing that it is net income (or gross income less living
expenses) which is to be used in the computation of the award for loss of income. Villa
Rey Transit v. Court of Appeals[23] explained that the amount recoverable is not the loss
of the entire earning, but rather the loss of that portion of the earnings which the
beneficiary would have received. Hence, in fixing the amount of the said damages, the
necessary expenses of the deceased should be deducted from his earnings.
In other words, only net earnings, not gross earnings, are to be considered; that
is, the total of the earnings less expenses necessary in the creation of such earnings
or income, less living and other incidental expenses. When there is no showing that the
living expenses constituted a smaller percentage of the gross income, we fix the living
expenses at half of the gross income. To hold that one would have used only a small
part of the income, with the larger part going to the support of ones children, would be
conjectural and unreasonable.[24]
Counsel for Respondent Borja is also correct in saying that life expectancy should
not be based on the retirement age of government employees, which is pegged at 65.
In Negros Navigation Co, Inc. v. CA,[25] the Court resolved that in calculating the life
expectancy of an individual for the purpose of determining loss of earning capacity
under Article 2206(1) of the Civil Code, it is assumed that the deceased would have
earned income even after retirement from a particular job.
Respondent Borja should not be situated differently just because he was a
government employee. Private employees, given the retirement packages provided by
their companies, usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after the incident and,
hence, his life expectancy of 80 years should yield to the reality that he was only 59
when he actually died.
We disagree. The Court uses the American Experience/Expectancy Table of
Mortality or the Actuarial or Combined Experience Table of Mortality, which consistently
pegs the life span of the average Filipino at 80 years, from which it extrapolates the
estimated income to be earned by the deceased had he or she not been killed.[26]
Respondent Borjas demise earlier than the estimated life span is of no moment.
For purposes of determining loss of earning capacity, life expectancy remains at 80.
Otherwise, the computation of loss of earning capacity will never become final, being
always subject to the eventuality of the victims death. The computation should not
change even if Borja lived beyond 80 years. Fair is fair.
Based on the foregoing discussion, the award for loss of earning capacity should
be computed as follows:
Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]
capacity 3
= P330,240
Having been duly proven, the moral damages and attorneys fees awarded are
justified under the Civil Codes Article 2219, paragraph 2; and Article 2208, paragraph
11, respectively.
 WHEREFORE, the Petition is PARTLY GRANTED. The assailed Decision
is AFFIRMED with the following MODIFICATIONS: petitioner is ordered to pay the
heirs of the victim damages in the amount of P320,240 as loss of earning capacity,
moral damages in the amount of P100,000, plus another P50,000 as attorneys fees.
Costs against petitioner.
SO ORDERED.
 22. Fernando et al. V. CA 208 SCRA 714
G.R. No. 92087 May 8, 1992
SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children,
namely: ALBERTO & ROBERTO, all surnamed FERNANDO, ANITA GARCIA,
NICOLAS LIAGOSO, ROSALIA BERTULANO, in her behalf and as the legal
guardian of her minor children, namely: EDUARDO, ROLANDO, DANIEL, AND
JOCELYN, all surnamed BERTULANO, PRIMITIVA FAJARDO in her behalf and as
legal guardian of her minor children, namely: GILBERT, GLEN, JOCELYN AND
JOSELITO, all surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf and
as guardian ad litem, of her minor grandchildren, namely: NOEL, WILLIAM,
GENEVIEVE and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari praying that the amended decision of the Court
of Appeals dated January 11, 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia
Fernando, etc., et al. v. The City of Davao," be reversed and that its original decision
dated January 31, 1986 be reinstated subject to the modification sought by the
petitioners in their motion for partial reconsideration dated March 6, 1986.
The antecedent facts are briefly narrated by the trial court, as follows:
From the evidence presented we see the following facts: On
November 7, 1975, Bibiano Morta, market master of the Agdao
Public Market filed a requisition request with the Chief of Property of
the City Treasurer's Office for the re-emptying of the septic tank in
Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito
Catarsa, Feliciano Bascon, Federico Bolo and Antonio Suñer, Jr.
Bascon won the bid. On November 26, 1975 Bascon was notified
and he signed the purchase order. However, before such date,
specifically on November 22, 1975, bidder Bertulano with four other
companions namely Joselito Garcia, William Liagoso, Alberto
Fernando and Jose Fajardo, Jr. were found dead inside the septic
tank. The bodies were removed by a fireman. One body, that of
Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken
to the Regional Hospital but he expired there. The City Engineer's
office investigated the case and learned that the five victims entered
the septic tank without clearance from it nor with the knowledge and
consent of the market master. In fact, the septic tank was found to
be almost empty and the victims were presumed to be the ones who
did the re-emptying. Dr. Juan Abear of the City Health Office
autopsied the bodies and in his reports, put the cause of death of all
five victims as "asphyxia" caused by the diminution of oxygen supply
in the body working below normal conditions. The lungs of the five
victims burst, swelled in hemmorrhagic areas and this was due to
their intake of toxic gas, which, in this case, was sulfide gas produced
from the waste matter inside the septic tank. (p. 177, Records)
On August 28, 1984, the trial court rendered a decision, the dispositive portion of which
reads:
IN VIEW OF THE FOREGOING, this case is hereby DISMISSED
without pronouncement as to costs.
SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to the then Intermediate Appellate
Court (now Court of Appeals). On January 3, 1986, the appellate court issued a
decision, the dispositive portion of which reads:
WHEREFORE, in view of the facts fully established and in the liberal
interpretation of what the Constitution and the law intended to protect
the plight of the poor and the needy, the ignorant and the
indigent –– more entitled to social justice for having, in the
unforgettable words of Magsaysay, "less in life," We hereby reverse
and set aside the appealed judgment and render another one:
1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando,
Sofia Fernando and her minor children the following sums of money:
a) Compensatory damages for his death
P30,000.00
b) Moral damages P20,000.00
2. Ordering the defendant to pay to the plaintiffs David Garcia and
Anita Garcia the following sums of money:
a) Compensatory damages for his death
P30,000.00
b) Moral damages P20,000.00
3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano
(sic) and her minor children the following sums of money
a) Compensatory damages for his death
P30,000.00
 b) Moral damages P20,000.00 2. If so, is such negligence the immediate and proximate cause of
deaths of the victims hereof? (p. 72, Rollo)
4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and
her minor children the following sums of money: Negligence has been defined as the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the
a) Compensatory damages for his death circumstances justly demand, whereby such other person suffers injury (Corliss v.
P30,000.00 Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the
law, a person who by his omission causes damage to another, there being negligence,
is obliged to pay for the damage done (Article 2176, New Civil Code). As to what would
b) Moral damages P20,000.00 constitute a negligent act in a given situation, the case of Picart v. Smith (37 Phil. 809,
813) provides Us the answer, to wit:
5. Ordering the defendant to pay to the plaintiffs Norma Liagoso,
Nicolas Liagoso and Emeteria Liagoso and her minor grandchildren The test by which to determine the existence of negligence in a
the following sums of money: particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
a) Compensatory damages for his death an ordinarily prudent person would have used in the same situation?
P30,000.00 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
b) Moral damages P20,000.00 the discreet pater familias of the Roman law. The existence of
negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law
The death compensation is fixed at P30,000.00 in accordance with considers what would be reckless, blameworthy, or negligent in the
the rulings of the Supreme Court starting with People vs. De la man of ordinary intelligence and prudence and determines liability by
Fuente, Nos. L-63251-52, December 29, 1983, 126 SCRA 518 that.
reiterated in the recent case of People vs. Nepomuceno, No. L-
41412, May 27, 1985. Attorney's fees in the amount of P10,000.00
for the handling of the case for the 5 victims is also awarded. 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
No pronouncement as to costs. particular case. Abstract speculation cannot here be of much value
but this much can be profitably said: Reasonable men govern their
SO ORDERED. (Rollo, pp. 33-34) 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
Both parties filed their separate motions for reconsideration. On January 11, 1990, the
something before them to suggest or warn of danger. Could a
Court of Appeals rendered an Amended Decision, the dispositive portion of which
prudent man, in the case under consideration, foresee harm as a
reads:
result of the course actually pursued? If so, it was the duty of the
actor to take precautions to guard against that harm. Reasonable
WHEREFORE, finding merit in the motion for reconsideration of the foresight of harm, followed by the ignoring of the suggestion born of
defendant-appellee Davao City, the same is hereby GRANTED. The this provision, is always necessary before negligence can be held to
decision of this Court dated January 31, 1986 is reversed and set exist. Stated in these terms, the proper criterion for determining the
aside and another one is hereby rendered dismissing the case. No existence of negligence in a given case is this: Conduct is said to be
pronouncement as to costs. negligent when a prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was sufficiently
SO ORDERED. (Rollo, p. 25) probable warrant his foregoing the conduct or guarding against its
consequences. (emphasis supplied)
Hence, this petition raising the following issues for resolution:
To be entitled to damages for an injury resulting from the negligence of another, a
claimant must establish the relation between the omission and the damage. He must
1. Is the respondent Davao City guilty of negligence in the case at
prove under Article 2179 of the New Civil Code that the defendant's negligence was
bar?
the immediate and proximate cause of his injury. Proximate cause has been defined as
that cause, which, in natural and continuous sequence unbroken by any efficient respondent's failure to re-empty the septic tank since 1956, people in the market have
intervening cause, produces the injury, and without which the result would not have been using the public toilet for their personal necessities but have remained unscathed.
occurred (Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation The testimonies of Messrs. Danilo Garcia and David Secoja (plaintiffs'-petitioners'
of cause and effect is not an arduous one if the claimant did not in any way contribute witnesses) on this point are relevant, to wit:
to the negligence of the defendant. However, where the resulting injury was the product
of the negligence of both parties, there exists a difficulty to discern which acts shall be Atty. Mojica, counsel for defendant Davao City:
considered the proximate cause of the accident. In Taylor v.Manila Electric Railroad
and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a judicious assessment
of the situation: xxx xxx xxx

Difficulty seems to be apprehended in deciding which acts of the The place where you live is right along the Agdao
injured party shall be considered immediate causes of the creek, is that correct?
accident. The test is simple. Distinction must be made between the
accident and the injury, between the event itself, without which there DANILO GARCIA:
could have been no accident, and those acts of the victim not
entering into it, independent of it, but contributing to his own proper A Yes, sir.
hurt. For instance, the cause of the accident under review was the
displacement of the crosspiece or the failure to replace it. This
produced the event giving occasion for damages — that is, the Q And to be able to go to the market place, where
sinking of the track and the sliding of the iron rails. To this event, the you claim you have a stall,, you have to pass on
act of the plaintiff in walking by the side of the car did not contribute, the septic tank?
although it was an element of the damage which came to himself.
Had the crosspiece been out of place wholly or partly through his act A Yes, sir.
or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been
Q Day in and day out, you pass on top of the septic
responsible. Where he contributes to the principal occurrence, as
tank?
one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the A Yes, sir.
event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence. (emphasis Ours) Q Is it not a fact that everybody living along the
creek passes on top of this septic tank as they go
Applying all these established doctrines in the case at bar and after a careful scrutiny out from the place and return to their place of
of the records, We find no compelling reason to grant the petition. We affirm. residence, is that correct?

Petitioners fault the city government of Davao for failing to clean a septic tank for the And this septic tank, rather the whole of the septic
period of 19 years resulting in an accumulation of hydrogen sulfide gas which killed the tank, is covered by lead . . .?
laborers. They contend that such failure was compounded by the fact that there was
no warning sign of the existing danger and no efforts exerted by the public respondent A Yes, sir. there is cover.
to neutralize or render harmless the effects of the toxic gas. They submit that the public
respondent's gross negligence was the proximate cause of the fatal incident.
Q And there were three (3) of these lead covering
the septic tank?
We do not subscribe to this view. While it may be true that the public respondent has
been remiss in its duty to re-empty the septic tank annually, such negligence was not
A Yes, sir.
a continuing one. Upon learning from the report of the market master about the need
to clean the septic tank of the public toilet in Agdao Public Market, the public respondent
immediately responded by issuing invitations to bid for such service. Thereafter, it Q And this has always been closed?
awarded the bid to the lowest bidder, Mr. Feliciano Bascon (TSN, May 24, 1983, pp.
22-25). The public respondent, therefore, lost no time in taking up remedial measures A Yes, sir. (TSN, November 26, 1979, pp. 21-23,
to meet the situation. It is likewise an undisputed fact that despite the public emphasis supplied)
ATTY. JOVER, counsel for the plaintiffs: Q How many times have you gone to that septic
tank (public toilet) prior to that date, November 22,
Q You said you are residing at Davao City, is it 1975?
not?
A Almost 1,000 times. (TSN, February 9, 1983, pp.
DAVID SEJOYA: 1-2)

A Yes, sir. The absence of any accident was due to the public respondent's compliance
with the sanitary and plumbing specifications in constructing the toilet and the
septic tank (TSN, November 4, 1983, p. 51). Hence, the toxic gas from the
Q How long have you been a resident of Agdao? waste matter could not have leaked out because the septic tank was air-tight
(TSN, ibid, p. 49). The only indication that the septic tank in the case at bar
A Since 1953. was full and needed emptying was when water came out from it (TSN,
September 13, 1983, p. 41). Yet, even when the septic tank was full, there
Q Where specifically in Agdao are you residing? was no report of any casualty of gas poisoning despite the presence of people
living near it or passing on top of it or using the public toilet for their personal
necessities.
A At the Public Market.
Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to
Q Which part of the Agdao Public Market is your emphasize the negligence of the city government and presented witnesses to attest on
house located? this lack. However, this strategy backfired on their faces. Their witnesses were not
expert witnesses. On the other hand, Engineer Demetrio Alindada of the city
A Inside the market in front of the fish section. government testified and demonstrated by drawings how the safety requirements like
emission of gases in the construction of both toilet and septic tank have been complied
with. He stated that the ventilation pipe need not be constructed outside the building as
Q Do you know where the Agdao septic tank is
it could also be embodied in the hollow blocks as is usually done in residential buildings
located?
(TSN, November 4, 1983, pp. 50-51). The petitioners submitted no competent evidence
to corroborate their oral testimonies or rebut the testimony given by Engr. Alindada.
A Yes, sir.
We also do not agree with the petitioner's submission that warning signs of noxious gas
Q How far is that septic tank located from your should have been put up in the toilet in addition to the signs of "MEN" and "WOMEN"
house? already in place in that area. Toilets and septic tanks are not nuisances per se as
defined in Article 694 of the New Civil Code which would necessitate warning signs for
A Around thirty (30) meters. the protection of the public. While the construction of these public facilities demands
utmost compliance with safety and sanitary requirements, the putting up of warning
signs is not one of those requirements. The testimony of Engr. Alindada on this matter
Q Have you ever had a chance to use that septic
is elucidative:
tank (public toilet)?

ATTY. ALBAY:
A Yes, sir.

Q Mr. Witness, you mentioned the several aspects

Q How many times, if you could remember?
of the approval of the building permit which include
the plans of an architect, senitary engineer and
A Many times, maybe more than 1,000 times. electrical plans. All of these still pass your approval
as building official, is that correct?
Q Prior to November 22, 1975, have you ever used
that septic tank (public toilet)? DEMETRIO ALINDADA:

A Yes, sir. A Yes.

Q So there is the sanitary plan submitted to and
will not be approved by you unless the same is in
conformance with the provisions of the building
code or sanitary requirements?
A Yes, for private building constructions.
Q How about public buildings?
A For public buildings, they are exempted for
payment of building permits but still they have to
have a building permit.
Q But just the same, including the sanitary plans,
it require your approval?
A Yes, it requires also.
Q Therefore, under the National Building Code,
you are empowered not to approve sanitary plans
if they are not in conformity with the sanitary
requirements?
A Yes.
Q Now, in private or public buildings, do you see
any warning signs in the vicinity of septic tanks?
A There is no warning sign.
Q In residential buildings do you see any warning
sign?
A There is none.
ATTY. AMPIG:
We submit that the matter is irrelevant and
immaterial, Your Honor.
ATTY. ALBAY:
But that is in consonance with their cross-
examination, your Honor.
COURT:
Anyway it is already answered.
ATTY. ALBAY:
Q These warning signs, are these required under
the preparation of the plans?
A It is not required.
Q I will just reiterate, Mr. Witness. In residences,
for example like the residence of Atty. Ampig or the
residence of the honorable Judge, would you say
that the same principle of the septic tank, from the
water closet to the vault, is being followed?
A Yes.
ATTY. ALBAY:
That will be all, Your Honor. (TSN, December 6,
1983, pp. 62-63)
In view of this factual milieu, it would appear that an accident such as toxic gas leakage
from the septic tank is unlikely to happen unless one removes its covers. The accident
in the case at bar occurred because the victims on their own and without authority from
the public respondent opened the septic tank. Considering the nature of the task of
emptying a septic tank especially one which has not been cleaned for years, an
ordinarily prudent person should undoubtedly be aware of the attendant risks. The
victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service,
who is presumed to know the hazards of the job. His failure, therefore, and that of his
men to take precautionary measures for their safety was the proximate cause of the
accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129,
133), We held that when a person holds himself out as being competent to do things
requiring professional skill, he will be held liable for negligence if he fails to exhibit the
care and skill of one ordinarily skilled in the particular work which he attempts to
do (emphasis Ours). The fatal accident in this case would not have happened but for
the victims' negligence. Thus, the appellate court was correct to observe that:
. . . Could the victims have died if they did not open the septic tank
which they were not in the first place authorized to open? Who
between the passive object (septic tank) and the active subject (the
victims herein) who, having no authority therefore, arrogated unto
themselves, the task of opening the septic tank which caused their
own deaths should be responsible for such deaths. How could the
septic tank which has been in existence since the 1950's be the
proximate cause of an accident that occurred only on November 22,
1975? The stubborn fact remains that since 1956 up to occurrence
of the accident in 1975 no injury nor death was caused by the septic
tank. The only reasonable conclusion that could be drawn from the
 above is that the victims' death was caused by their own negligence
in opening the septic tank. . . . (Rollo, p. 23)

Petitioners further contend that the failure of the market master to supervise the area
where the septic tank is located is a reflection of the negligence of the public
respondent.

We do not think so. The market master knew that work on the septic tank was still
forthcoming. It must be remembered that the bidding had just been conducted.
Although the winning bidder was already known, the award to him was still to be made
by the Committee on Awards. Upon the other hand, the accident which befell the victims
who are not in any way connected with the winning bidder happened before the award
could be given. Considering that the case was yet no award to commence work on the
septic tank, the duty of the market master or his security guards to supervise the work
could not have started (TSN, September 13, 1983, p. 40). Also, the victims could not
have been seen working in the area because the septic tank was hidden by a garbage
storage which is more or less ten (10) meters away from the comfort room itself
(TSN, ibid, pp. 38-39). The surreptitious way in which the victims did their job without
clearance from the market master or any of the security guards goes against their good
faith. Even their relatives or family members did not know of their plan to clean the
septic tank.

Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code
cannot be sustained. Said law states:

Art. 24. In all contractual, property or other relations, when one of the
parties is at a disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age or other
handicap, the courts must be vigilant for his protection.

We approve of the appellate court's ruling that "(w)hile one of the victims was
invited to bid for said project, he did not win the bid, therefore, there is a total
absence of contractual relations between the victims and the City Government
of Davao City that could give rise to any contractual obligation, much less, any
liability on the part of Davao City." (Rollo, p. 24) The accident was indeed
tragic and We empathize with the petitioners. However, the herein
circumstances lead Us to no other conclusion than that the proximate and
immediate cause of the death of the victims was due to their own negligence.
Consequently, the petitioners cannot demand damages from the public
respondent.

ACCORDINGLY, the amended decision of the Court of Appeals dated January 11,
1990 is AFFIRMED. No costs.

SO ORDERED.