[G.R. No. 116100.

February 9, 1996]

SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA
SANTOS, petitioners, vs. COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and
REGIONAL TRIAL COURT OF PASIG, METRO MANILA, BRANCH 181, respondents.

DECISION
REGALADO, J.:

This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G.R.
CV No. 29115, promulgated on November 10, 1993, which affirmed with modification the decision of
the trial court, as well as its resolution dated July 8, 1994 denying petitioners motion for
reconsideration.[1]
On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed
by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos
and Maria Cristina C. Santos before the Regional Trial Court of Pasig and assigned to Branch 22
thereof.[2]
The generative facts of the case, as synthesized by the trial court and adopted by the Court of
Appeals, are as follows:

Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the pendency of this
case and was substituted by Ofelia Mabasa, his surviving spouse [and children].

The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior P. Burgos St.,
Palingon, Tipas, Taguig, Metro Manila. The plaintiff was able to acquire said property through a contract of
sale with spouses Mamerto Rayos and Teodora Quintero as vendors last September 1981. Said property may be
described to be surrounded by other immovables pertaining to defendants herein. Taking P. Burgos Street as the
point of reference, on the left side, going to plaintiffs property, the row of houses will be as follows: That of
defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos and then that of Ofelia
Mabasa. On the right side (is) that of defendant Rosalina Morato and then a Septic Tank (Exhibit D). As an
access to P. Burgos Street from plaintiffs property, there are two possible passageways. The first passageway is
approximately one meter wide and is about 20 meters distan(t) from Mabasas residence to P. Burgos
Street. Such path is passing in between the previously mentioned row of houses. The second passageway is
about 3 meters in width and length from plaintiff Mabasas residence to P. Burgos Street; it is about 26
meters. In passing thru said passageway, a less than a meter wide path through the septic tank and with 5-
6 meters in length has to be traversed.

When said property was purchased by Mabasa, there were tenants occupying the premises and who were
acknowledged by plaintiff Mabasa as tenants. However, sometime in February, 1982. one of said tenants
vacated the apartment and when plaintiff Mabasa went to see the premises, he saw that there had been built an
adobe fence in the first passageway making it narrower in width. Said adobe fence was first constructed by
defendants Santoses along their property which is also along the first passageway. Defendant Morato
constructed her adobe fence and even extended said fence in such a way that the entire passageway was
enclosed (Exhibit 1-Santoses and Custodios, Exh. D for plaintiff, Exhs. 1-C, 1-D and I -E) And it was then that
the remaining tenants of said apartment vacated the area. Defendant Ma. Cristina Santos testified that she
constructed said fence because there was an incident when her daughter was dragged by a bicycle pedalled by a
son of one of the tenants in said apartment along the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a pathway such as when some of the tenants were drunk
and would bang their doors and windows. Some of their footwear were even lost. x x x[3] (Italics in original text;
corrections in parentheses supplied)

On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as follows:

1) Ordering defendants Custodios and Santoses to give plaintiff permanent access - ingress and egress, to the
public street;

2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand Pesos (P8,000)
as indemnity for the permanent use of the passageway.

The parties to shoulder their respective litigation expenses.[4]

Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents, went
to the Court of Appeals raising the sole issue of whether or not the lower court erred in not awarding
damages in their favor. On November 10, 1993, as earlier stated, the Court of Appeals rendered its
decision affirming the judgment of the trial court with modification, the decretal portion of which disposes
as follows:

WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH MODIFICATION only
insofar as the herein grant of damages to plaintiffs-appellants. The Court hereby orders defendants-appellees to
pay plaintiffs-appellants the sum of Sixty Five Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand
(P30,000) Pesos as Moral Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the
appealed decision is affirmed to all respects.[5]

On July 8, 1994, the Court of Appeals denied petitioners motion for reconsideration. [6] Petitioners
then took the present recourse to us, raising two issues, namely, whether or not the grant of right of
way to herein private respondents is proper, and whether or not the award of damages is in order.
With respect to the first issue, herein petitioners are already barred from raising the same.
Petitioners did not appeal from the decision of the court a quo granting private respondents the right of
way, hence they are presumed to be satisfied with the adjudication therein. With the finality of the
judgment of the trial court as to petitioners, the issue of propriety of the grant of right of way has already
been laid to rest.
For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot obtain
any affirmative relief other than those granted in the decision of the trial court. That decision of the court
below has become final as against them and can no longer be reviewed, much less reversed, by this
Court. The rule in this jurisdiction is that whenever an appeal is taken in a civil case, an appellee who
has not himself appealed may not obtain from the appellate court any affirmative relief other than what
was granted in the decision of the lower court.The appellee can only advance any argument that he
may deem necessary to defeat the appellants claim or to uphold the decision that is being disputed,
and he can assign errors in his brief if such is required to strengthen the views expressed by the court a
quo. These assigned errors, in turn, may be considered by the appellate court solely to maintain the
appealed decision on other grounds, but not for the purpose of reversing or modifying the judgment in
the appellees favor and giving him other affirmative reliefs. [7]
However, with respect to the second issue, we agree with petitioners that the Court of Appeals
erred in awarding damages in favor of private respondents. The award of damages has no substantial
legal basis. A reading of the decision of the Court of Appeals will show that the award of damages was
based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred losses in the form of
unrealized rentals when the tenants vacated the leased premises by reason of the closure of the
passageway.
However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover
damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong
inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or
damage without wrong, does not constitute a cause of action, since damages are merely part of the
remedy allowed for the injury caused by a breach or wrong.[8]
There is a material distinction between damages and injury. Injury is the illegal invasion of a legal
right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense
or compensation awarded for the damage suffered. Thus, there can be damage without injury in those
instances in which the loss or harm was not the result of a violation of a legal duty. These situations
are often called damnum absque injuria.[9] in order that a plaintiff may maintain an action for the injuries
of which he complains, he must establish that such injuries resulted from a breach of duty which the
defendant owed to the plaintiff - a concurrence of injury to the plaintiff and legal responsibility by the
person causing it.[10] The underlying basis for the award of tort damages is the premise that an individual
was injured in contemplation of law. Thus, there must first be the breach of some duty and the
imposition of liability for that breach before damages may be awarded; it is not sufficient to state that
there should be tort liability merely because the plaintiff suffered some pain and suffering) [11]
Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or
loss to another but which violate no legal duty to such other person, and consequently create no cause
of action in his favor. In such cases, the consequences must be borne by the injured person alone. The
law affords no remedy for damages resulting from an act which does not amount to a legal injury or
wrong. [12]
In other words, in order that the law will give redress for an act causing damage, that act must be
not only hurtful, but wrongful. There must be damnum et injuria.[13] If, as may happen in many cases, a
person sustains actual damage, that is, harm or loss to his person or property, without sustaining any
legal injury, that is, an act or omission which the law does not deem an injury, the damage is regarded
as damnum absque injuria.[14]
In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of
private respondents, petitioners could not be said to have violated the principle of abuse of right. In
order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied, it is
essential that the following requisites concur: (1) The defendant should have acted in a manner that is
contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There was
damage or injury to the plaintiff.[15]
The act of petitioners in constructing a fence within their lot is a valid exercise of their right as
owners, hence not contrary to morals, good customs or public policy. The law recognizes in the owner
the right to enjoy and dispose of a thing, without other limitations than those established by law. [16] It is
within the right of petitioners, as owners, to enclose and fence their property. Article 430 of the Civil
Code provides that (e)very owner may enclose or fence his land or tenements by means of walls,
ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any servitudes. There was no
easement of way existing in favor of private respondents, either by law or by contract. The fact that
private respondents had no existing right over the said passageway is confirmed by the very decision
of the trial court granting a compulsory right of way in their favor after payment of just compensation. It
was only that decision which gave private respondents the right to use the said passageway after
payment of the compensation and imposed a corresponding duty on petitioners not to interfere in the
exercise of said right.
Hence, prior to said decision, petitioners had an absolute right over their property and their act of
fencing and enclosing the same was an act which they may lawfully perform in the employment and
exercise of said right. To repeat, whatever injury or damage may have been sustained by private
respondents by reason of the rightful use of the said land by petitioners is damnum absque injuria.[17]
A person has a right to the natural use and enjoyment of his own property, according to his
pleasure, for all the purposes to which such property is usually applied. As a general rule, therefore,
there is no cause of action for acts done by one person upon his own property in a lawful and proper
manner, although such acts incidentally cause damage or an unavoidable loss to another, as such
damage or loss is damnum absque injuria.[18] When the owner of property makes use thereof in the
general and ordinary manner in which the property is used, such as fencing or enclosing the same as
in this case, nobody can complain of having been injured, because the inconvenience arising from said
use can be considered as a mere consequence of community life.[19]
The proper exercise of a lawful right cannot constitute a legal wrong for which an action will
lie,[20] although the act may result in damage to another, for no legal right has been invaded [21] One may
use any lawful means to accomplish a lawful purpose and though the means adopted may cause
damage to another, no cause of action arises in the latters favor. Any injury or damage occasioned
thereby is damnum absque injuria. The courts can give no redress for hardship to an individual resulting
from action reasonably calculated to achieve a lawful end by lawful means. [22]
WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of
respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial court
is correspondingly REINSTATED.
SO ORDERED.
 [G.R. No. 157070. January 14, 2005]

JOSEFINA ESTOLAS and RICARDO SALVADOR, petitioners, vs. RAYMUNDO

ACENA, respondent.

DECISION
CHICO-NAZARIO, J.:

In this petition for review on certiorari, petitioners Josefina Estolas and Ricardo Salvador seek the
reversal of the Court of Appeals Decision[1] dated 30 May 2002 and the Resolution [2]dated 22 January
2003 denying their motion for reconsideration. The assailed Court of Appeals Decision affirmed the
Decision[3] of the Regional Trial Court (RTC) of Pasig, Branch 168, adjudging petitioners herein (who
were the defendants thereat) jointly and severally liable for damages in the amount of P75,000 as moral
damages and P10,000 as exemplary damages.
The pertinent facts, as appreciated by the Court of Appeals, are as follows:

18 October 1982 - Plaintiff-appellee (now respondent) Raymundo Acena is appointed

ADMINISTRATIVE OFFICER WITH PERMANENT STATUS, of the Rizal Technological
College (RTC) by Dr. Lydia Profeta, President of said college. Such appointment is approved
by the Civil Service Commission (CSC);

09 December 1985 - (1) Respondent Acena is extended a promotional appointment as ASSOCIATE

PROFESSOR effective 01 November 1985;

(2) Effective 30 October 1985, and in view of his promotion to Associate Professor, respondent
Acena is designated ACTING ADMINISTRATIVE OFFICER by President Profeta in an
undated letter;[4]

01 November 1985 - Respondent Acena assumes his position as Associate Professor and receives the
salary for such position per certification of the personnel officer of RTC dated 04 November
1985;

09 January 1986 - Respondent Acena, thru a letter addressed to President Profeta, rejects his
appointment as Associate Professor because of the provisions of Memorandum Circular No. 4
of the CSC which requires a masteral degree to qualify for permanent appointment as
Associate Professor;

13 January 1986 - President Profeta accepts the rejection;

26 March 1986 - Appellant-defendant Dr. Josefina Estolas (now petitioner) is designated as Officer-in-
charge of RTC in place of Dr. Profeta;

08 April 1986 - (a) Petitioner Estolas issues Memorandum Order No. 30, Series of 1986, revoking
the designation of respondent Acena as Acting Administrative Officer effective on even
date and designating appellant-defendant (now petitioner) Ricardo Salvador in his stead;

(b) The CSC receives a copy of the 09 January 1986 letter of respondent Acena rejecting his
appointment as Associate Professor;
 (c) Respondent Acena institutes Civil Case No. 53327 for Injunction and Damages
enjoining petitioner Estolas from implementing and enforcing Memorandum Order No.
30 claiming that the same violated his rights to security of tenure;

15 April 1986 - Respondent Acena amends his complaint;

17 April 1986 - Respondent Acena likewise files a letter-complaint with the Merit Systems Protection
Board (MSPB) for alleged illegal termination of his services as Acting Administrative Officer;

20 May 1986 - Appointment of respondent Acena as Associate Professor is approved by the CSC as
temporary on the ground that respondent Acena does not meet the educational requirement
pursuant to CSC-Memorandum Circular Series of 1985;[5]

07 July 1986 - Respondent Acena also seeks the opinion of the CSC regarding his appointment and
status as Administrative Officer of the RTC;

23 March 1987 - Chairperson of the CSC, Celerina Gotladera, issues an opinion in favor of respondent
Acena holding that the latter is still the administrative officer as he was appointed thereto under
permanent status and as his appointment as Associate Professor had been withdrawn;

15 May 1987 - The trial court issues an Order for the issuance of a writ of preliminary
mandatory injunction enjoining petitioner Estolas from implementing Memorandum
Order No. 30.The basis for said Order is the 23 March 1987 opinion of CSC Chairperson
Gotladera;

03 February 1988 - The MSPB dismisses respondent Acenas complaint for illegal termination;

12 February 1988 - Respondent Acena demands for the withdrawal of the MSPB order considering
that Commissioner Gotladera had already ruled on the case;

23 March 1988 - The MSPB sets aside its 03 February 1988 order;

15 June 1988[6] - Aggrieved by the 23 March 1988 MSPB Order, petitioner Estolas goes to the Office
of the President on Petition for Review and the same is indorsed for disposition to the CSC;

09 October 1989 - CSC issues Resolution No. 89-748 declaring that the action of petitioner Estolas in
revoking the designation of respondent Acena as Acting Administrative Officer is in order,
thus setting aside the 23 March 1987 opinion of Commissioner Gotladera and the 23 March
1988 Order of the MSPB;[7]

17 February 1993 - The trial court renders the assailed Decision, the decretal portion of which reads:

Premises considered, defendants are hereby ordered to jointly and severally pay plaintiff
the amount of P75,000.00 as moral damages and P10,000.00 as exemplary damages with costs
against defendants.

As earlier stated, the Court of Appeals affirmed in toto the Decision of the trial court. Aggrieved
therefrom, petitioners, as represented by the Office of the Solicitor General, filed the instant
petition[8] contending that the Court of Appeals erred:
I. IN HOLDING THAT PETITIONER ESTOLAS ACTED IN BAD FAITH WHEN SHE ISSUED MEMORANDUM
ORDER NO. 30
 II. IN AWARDING MORAL AND EXEMPLARY DAMAGES TO RESPONDENT ACENA

As a preliminary matter, it is vital to note that we are not at all unfamiliar with the factual milieu of
this case. In Acena v. Civil Service Commission,[9] a case anchored on the very same facts that gave
rise to the present petition, petitioner thereat (respondent Acena herein) challenged the jurisdiction of
the CSC in issuing Resolution No. 89-748 dated 09 October 1989 setting aside the 23 March 1988
Order of the Merit Systems Protection Board (MSPB). We pronounced in Acena that the CSC did not
have jurisdiction to entertain the petition for review filed therewith as it was filed out of time. Thus

Here, it is admitted by public respondent Commission and not disputed by private respondent Estolas that the
petition for review which can be considered as an appeal from the decision of the MSPB dated March 23, 1988
was filed outside the reglementary period. This being so, the public respondent exceeded its jurisdiction when it
entertained the petition that was erroneously filed with the Office of the President. Having exceeded its
jurisdiction public respondent committed reversible error when it set aside the order dated March 23, 1988 of
the MSPB which had long become final and executory. Final decision or orders of the MSPB is an adjudication
on the merits conclusive on the parties, hence, it can no longer be subject to review (San Luis, et al. v. Court of
Appeals, et al., G.R. No. 80160, June 26,1989).

Now to the case at bar. Petitioners insist that Memorandum Order No. 30, relieving respondent
Acena of his position as Acting Administrative Officer, was validly issued as respondent Acena was
holding such position in an acting capacity only, as he had previously accepted an appointment as
Associate Professor. Moreover, Memorandum Order No. 30 was issued only after the RTC Board of
Trustees, upon the recommendation of an Ad Hoc Committee on Reorganization composed of
representatives of management, faculty and employees of the College, recommended the designation
of petitioner Salvador vice respondent Acena. Finally, as petitioner Estolas acted rightfully in her official
capacity in designating petitioner Salvador, neither she nor petitioner Salvador can be made liable for
damages as damages can only be recovered if the acts complained of are themselves wrong.
Respondent Acena, on the other hand, maintains that his promotion to Associate Professor never
took effect as he rejected said appointment, which rejection was accepted by the then President of the
RTC, before the said appointment could be approved by the CSC. In his letter of rejection, respondent
Acena specifically stated his preference to stay as Administrative Officer under permanent status as
opposed to the temporary position of Associate Professor. Thus, as his promotion to Associate
Professor never took effect, respondent Acena concluded that he never abandoned his position as
Administrative Officer.
The law on damages prescribes that in order that one can have redress for an act which caused
him damage, the act must not only be hurtful, it must also be wrongful. [10] There must be damnum et
enjuria.[11] All in all, in order to recover moral damages, the claimant must prove the following: (1) there
must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; (2)
there must be a culpable act or omission factually established; (3) the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; and (4) the award of damages
is predicated on any of the cases stated in Article 2219 of the Civil Code. [12] In herein case, the factual
issue of whether or not the issuance by petitioner Estolas of Memorandum Order No. 30 was wrongful
has been passed upon with finality by the MSPB way back in 1988 following our ruling in Acena v. Civil
Service Commission.[13] It should be recalled that the MSPB Order set aside its earlier order dismissing
respondent Acenas complaint for illegal dismissal because the CSC through the Chairman has already
rendered its final determination on the matter. [14] The relevant portions of the CSC resolution[15] being
adverted to by the MSPB are quoted hereunder:

Records show that then RTC President Lydia N. Profeta issued on December 9, 1985 an appointment to Mr.
Acena as Associate Professor and the same was received in the Commission National Capital Region Office on
January 6, 1986. Thereafter, on January 9, 1986, Mr. Acena wrote RTC President Profeta that he prefers to
remain as Administrative Officer because this Commission might approve his appointment as temporary
because he does not possess a masteral degree. He asked that his appointment as Associate Professor be
withdrawn and that he will refund whatever he received as salary of Associate Professor in excess of his salary
as Administrative Officer. In a letter dated January 13, 1986, RTC President Profeta wrote Mr. Acena that his
appointment as Associate Professor was withdrawn. The letter of Mr. Acena and the letter of President Profeta
were received on April 8, 1986 by the National Capital Region. On April 10, 1986 by way of a 1st indorsement,
the said appointment of Mr. Acena as Associate Professor, together with other appointments, were returned
without action by the National Capital Region to the RTC.

Perhaps unaware of the withdrawal of the said appointment of Mr. Acena as Associate Professor by then
President Profeta, as the new Officer-In-Charge of RTC, you resubmitted the said appointment to the National
Capital Region on May 20, 1986 and the NCR approved the same as temporary because Mr. Acena does not
meet the education requirements.

On the basis of the foregoing facts, this Commission holds that Mr. Raymundo T. Acena is still
Administrative Officer of that College having been appointed thereto under permanent status and
because his appointment as Associate Professor had been withdrawn. The Supreme Court, in the case
of Mitra vs. Subido, G.R. No. L-21691, September 15, 1967, has ruled that the appointing authority is
empowered in the exercise of his executive prerogative to withdraw an appointment he issued provided that the
same has not been irrevocably approved by the Commission.

Although Mr. Acena was paid the salary of Associate Professor, he, however, refunded the salary differential as
evidenced by OR#1609303 and 1608112. Moreover, Mr. Acena had timely expressed his desire to remain as
Administrative Officer under permanent status instead of accepting the promotional appointment as Associate
Professor under temporary status before this Commission inadvertently approved the same as temporary after it
had been withdrawn. On the same premise, the approval by this Commission of the appointment of Mr.
Ricardo Salvador as Administrative Officer in that college is withdrawn inasmuch as Mr. Acena has not
validly vacated the same. Pertinent records of this Commission are hereby modified or corrected accordingly.
(Emphases supplied)

The determination by the MSPB, which was based on the CSC opinion to the effect that respondent
Acena still held the position of Administrative Officer in a permanent capacity at the time of the issuance
of Memorandum Order No. 30 is conclusive upon us.[16]
Having disposed of this preliminary matter, we now unravel the first of two issues posed in the
instant petition, i.e., whether or not petitioner Estolas, in conspiracy with petitioner Salvador, issued the
said memorandum in bad faith.
Both the trial court and the Court of Appeals ruled that, indeed, petitioners acted in bad faith. Verily,
such conclusion drawn from facts is a conclusion of law which this Court may review. [17]
Insofar as petitioner Salvador is concerned, it is reversible error on the part of the trial court and
the Court of Appeals to have concluded that petitioner Salvador acted in bad faith as such conclusion
is completely bereft of any rational basis. The evidence before us simply does not support such
valuation. Respondent Acena, grasping at straws, tried to establish during the direct examination of
petitioner Salvador that despite the preliminary injunction issued by the trial court for the petitioners to
refrain from enforcing Memorandum Order No. 30, petitioner Salvador continued to perform the duties
of Acting Administrative Officer through the signing of payrolls, vouchers, requisitions. [18] Petitioner
Salvador denied the allegation which prompted respondent Acena, through his lawyer, to remark that
he will have these papers subpoenaed.[19] The records, however, do not reveal if, indeed, respondent
Acena followed through with his plan for subpoena. What is more, no other matters were hurled at
petitioner Salvador that could establish acts of bad faith and conspiracy with petitioner Estolas to
illegally deprive petitioner Acena of his position as Administrative Officer.
 This being a civil case, it was incumbent upon respondent Acena, as complainant in the lower court,
to prove that which he alleged. To this burden, respondent Acena fell short. Thus, the presumption of
good faith holds.[20] It is axiomatic that to support a judgment for damages, facts which justify the
influence of a lack or absence of bad faith must be alleged and proven. [21] In the absence of contrary
evidence, petitioner Salvador cannot be faulted in accepting the designation of Acting Administrative
Officer from his superior and in exercising the duties and functions of the office.
Insofar as petitioner Estolas is concerned, however, we agree in the finding that she acted in bad
faith.
The complaint for damages against petitioner Estolas was actually for the single act of having
issued Memorandum Order No. 30, allegedly in bad faith, on 08 April 1986. This complaint, it should
be stressed, was filed the same day[22] as the issuance of Memorandum Order No. 30. Thus, acts of
bad faith on the part of petitioner Estolas committed after the filing of the complaint necessarily are
extraneous matters that do not form part of respondents cause of action. Respondent Acena, however,
went on to introduce acts, purportedly constituting bad faith, which transpired days, months and even
years after the filing of the complaint.[23] The lawyers for petitioner Estolas, for reasons this Court can
only divine, did not object to the presentation of additional issues. Consequently, and by operation of
law, such issues are considered as having been raised in the pleadings. Under Section 5, Rule 10 of
the Rules on Civil Procedure, issues which are not raised in the pleadings but which are tried with the
express or implied consent of the parties, shall be treated in all respects as if they have been raised in
the pleadings.
Thus, in addition to the basic issue of whether or not petitioner Estolas, in conspiracy with petitioner
Salvador, issued Memorandum Order No. 30 in bad faith, several other incidental issues [24] were taken
up during the gestational period of seven (7) years that this case was pending before the trial court, all
of which were duly scrutinized by both the trial court and the Court of Appeals. The trial court
ratiocinated thus:

After a careful study of the records of the case and finding that the allegations of the plaintiff to be meritorious,
this Court is inclined to rule in favor of plaintiff. Records indeed showed that defendants displayed lack of good
faith when they tried to remove herein plaintiff as Acting Administrative Officer. In fact, despite the refusal of
plaintiff to accept the position of Associate Professor, defendants ignored the same but instead continued on
removing Acenas appointment as Associate Professor. Moreover, there has been a request from two members of
the Board of Trustees (Exhibits F and G) for a meeting of the Board of Trustees to resolve the issues
surrounding the controversy on Acenas promotion. However, herein defendants simply disregarded such request
instead proceeded on implementing the questioned Memorandum and continually placed Acena in the payroll as
Associate Professor.

The defendants (sic) demonstration of bad faith remained even during the pendency of this case. After a
restraining order was issued by this Court, defendants persisted on enforcing Memo. Order No. 30. Defendants
acted similarly when an injunction was issued by this Court. This contemptuous attitude of the defendants
cannot be viewed with favor.[25]

Moreover, we find inexcusable and laden with bad faith the actuation of petitioner Estolas in
resubmitting to the CSC for its approval the appointment papers of respondent Acena as Associate
Professor despite the latters vehement rejection of said position and despite the pendency of the case
in the trial court. Worse still, petitioner Estolas conveniently did not inform the CSC of the real picture
of respondent Acenas appointment:
ATTY. GASCON: After the case was filed the papers of Acena was (sic) returned to the RTC notwithstanding
the proceedings of this case, the pendency of this case you returned the papers of Mr. Acena to the Civil
Service for confirmation of his appointment as Associate Professor, is it not?
 WITNESS: This was already asked before. Yes, it was returned with all the other papers because that (sic) will
be no basis for his salary inasmuch as this is still a case, no basis for his salary.
COURT: You mentioned about others which Mr. Acena is one of them?
WITNESS: Yes, Your Honor.
COURT: My question is, was there a restraining order regarding the designation of the rest of the persons that
you mentioned?
WITNESS: There was none, Your Honor.
COURT: There was only a restraining order and preliminary injunction as far as Acena is concerned?
WITNESS: Yes, Your Honor.[26]
ATTY. GASCON: And that you did not inform the Civil Service when you returned the papers of Acena for
confirmation? You did not make the proper information to the Civil Service of the pendency of this case, is it
not?
WITNESS: They know it, in Civil Service that there is a case.
ATTY. GASCON: The question is yes or no, Your Honor.
COURT: The question is whether she inform (sic) the Civil Service of the pendency of this case?
ATTY. GASCON: Did you make the information?
WITNESS: I did not, Your Honor.
COURT: Did it not occur to you that if you have furnished the Civil Service of the records of this case they could
have acted differently? Did it not occur to your mind that the Civil Service if officially informed of this case
before the Court, could have acted differently?
WITNESS: Yes, but I did not, Your Honor.
COURT: Is it not a fact that as President or OIC of the RTC that it is your duty to inform the proceedings of this
case to the Civil Service considering that the appointment of Acena is being contested, did it not occur to
your mind?
WITNESS: It did not occur to my mind, your Honor.[27]

Yet another clear badge of bad faith on petitioner Estolass part was to indicate respondent Acena
as Associate Professor in the payroll despite the trial courts order of preliminary mandatory injunction
for petitioner Estolas to refrain from implementing Memorandum Order No. 30 as respondent Acena
was still Administrative Officer, occupying said position in a permanent capacity. [28] Thus:
ATTY. GASCON: Now, one last question you are defendant here in this case from the very beginning in the
payrolls of the RTC you indicated that Acena was an Associate Professor, is it true?
WITNESS: I do not prepare payrolls, as President, sir.
ATTY. GASCON: Are you aware of that fact that payrolls were prepared despite the decision of the Civil Service
despite the Injunction of this Court and the pendency of this Injunction that payrolls were prepared
indicating that Acena was Associate Professor not Administrative Officer, are you aware of that?
WITNESS: There was no decision yet, so in order to have the basis for his salary, and Associate Professor is
higher than Administrative Officer.
ATTY. GASCON: The question is whether or not you are aware that the payrolls were prepared whereby Acena
was indicated there as Associate Professor and not Administrative Officer.
WITNESS: I am aware that the payroll is prepared, sir.
COURT: Despite the preliminary injunction?
WITNESS: Yes, Your Honor.
ATTY. GASCON: And you allowed this to happen?
WITNESS: Its routine.
 ATTY. GASCON: And it is a fact that Mr. Acena whenever he signs the payroll always indicates under protest
and despite the notation of Mr. Acena that this is under protest you still allowed the payroll to be prepared
indicating Mr. Acena as Associate Professor and not Administrative Officer contrary to the injunction issued
by the Court and the decision of the civil service, is it not?
WITNESS: Because my officer is the one who prepares the payroll.
COURT: Now, Madam Witness, as President of the Rizal Technological Colleges who has the final say on the
preparation of the payrolls?
WITNESS: There were several people who would sign.
COURT: Yes, but the last say must be the President, has the last say of that?
WITNESS: Yes, Your Honor.
COURT: And when this payroll were (sic) brought to your attention and they have notice [sic] that the name of
Acena indicated as Associate Professor and not as an Administrative Officer despite the knowledge of the
restraining order you still approved the preparation of the payroll, you admit that?
WITNESS: Yes, Your Honor.[29]

The final issue on deck is the propriety of the award of moral and exemplary damages. To resolve
said issue, an examination of factual circumstances would be necessary, a task that is clearly beyond
this Courts dominium[30] except
(1) When the findings are grounded on speculation, surmises or conjectures;
(2) When the inference made is manifestly mistaken, absurd or impossible;
(3) When there is grave abuse of discretion in the appreciation of facts;
(4) When the factual findings of the trial court and appellate courts are conflicting;
(5) When the Court of Appeals, in making its findings, has gone beyond the issues of the case and such
findings are contrary to the admissions of both appellant and appellee;
(6) When the judgment of the appellate court is premised on a misapprehension of facts or when it has failed
to notice certain relevant facts which, if properly considered will justify a different conclusion;
(7) When the findings of fact are conclusions without citation of specific evidence upon which they are based;
and
(8) When findings of fact of the Court of Appeals are premised on the absence of evidence but are contradicted
by the evidence on record.[31]

The case at bar entails an excursion into the facts as the lower courts findings, which were affirmed
by the Court of Appeals, were but conclusions without citation of specific evidence upon which they
were based (exception no. 7). The lower court simply avowed:

The foregoing remorseful acts of the defendants do not only warrant the award of damages but also exemplary
damages to deter others from committing a similar act in the future (Ramnani vs. CA, 196 SCRA 731; Diaz[,] et
al., vs. Amante, L-9228, Dec. 26, 1958).

Premises considered, defendants are hereby ordered to jointly and severally pay plaintiff the amount of
P75,000.00 as moral damages and P10,000.00 as exemplary damages with costs against defendants.[32]

The lower court, as well as the Court of Appeals, missed out one very crucial fact, i.e., damages
are not presumed; the first requisite for the recovery of moral damages is that there must be an injury,
whether physical, mental or psychological, clearly sustained by the claimant. There must be proof of
physical suffering, mental anguish, fright, serious anxiety, etc. [33]The claimant must satisfactorily prove
the factual basis and causal connection thereof with the defendants acts.[34] Thus, the ultimate question
that must be asked is: did respondent Acena suffer damages from petitioner Estolass wrongful act of
issuing Memorandum Order No. 30 and from her acts of bad faith as discussed above? Parenthetically,
is petitioner Salvador liable for damages considering that there is no adequate proof of conspiracy with
petitioner Estolas nor is there evidence of bad faith on his part?
The evidence supports respondent Acenas claim for moral damages against petitioner Estolas.
The actuations of petitioner Estolas in booting-out respondent Acena as Administrative Officer, which
the latter held in a permanent capacity, and in forcing the position of Associate Professor undisputedly
a temporary position down his throat, fall squarely within Article 21 of the Civil Code on human
relations.[35] On the witness stand, respondent Acena testified that as a direct result of petitioner
Estolass actuations, he felt insulted, embarrassed and humiliated.[36] He suffered serious anxiety, moral
shock, sleepness nights and even had to resort to minimum tanquilizer.[37]
Considering respondent Acenas high position in the RTC community and the long drawn out feud
between him and the president of the college, we find his claim of having suffered moral damages
credible. The award of exemplary damages in the amount of P10,000 is likewise justified to set an
example for the public good and as a form of deterrent to the repetition of the same act by others.
Quite the contrary, petitioner Salvador cannot be made liable for moral damages as it was not
proved that he conspired with petitioner Estolas in issuing Memorandum Order No. 30. Neither was it
proved that he acted in bad faith during all time material to the case. Invariably, in order that a plaintiff
(respondent Acena herein) may maintain an action for the injuries of which he complains, he must
establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a
concurrence of injury to the plaintiff and legal responsibility by the person causing it. [38]
Considering that petitioner Salvador cannot be made liable for moral damages, neither can he
answer for exemplary damages, the latter being allowed only in addition to moral, temperate, liquidated
or compensatory damages.[39]
WHEREFORE, premises considered the Decision of the Court of Appeals dated 30 May 2002 and
its Resolution dated 22 January 2003 are hereby AFFIRMED with the MODIFICATION that only
petitioner Josefina V. Estolas is ordered to pay respondent Raymundo Acena the amount of Seventy-
Five Thousand Pesos (P75,000) as moral damages and Ten Thousand Pesos (P10,000) as exemplary
damages. With costs.
SO ORDERED.
G.R. No. 202124

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
IRENEO JUGUETA, Accused-Appellant.

DECISION

PERALTA, J.:

This resolves the appeal from the Decision of the Court of Appeals (CA) dated January 30, 2012 in CA-G.R. CR HC No.
1

03252. The CA affirmed the judgments of the Regional Trial Court (RTC), Branch 61, Gumaca, Quezon, finding accused-
appellant Ireneo Jugueta y Flores guilty beyond reasonable doubt of Double Murder in Criminal Case No. 7698-G and
Multiple Attempted Murder in Criminal Case No. 7702-G.

In Criminal Case No. 7698-G, appellant was charged with Double Murder, defined and penalized under Article 248 of the
Revised Penal Code, allegedly committed as follows:

That on or about the 6th day of June 2002, at about 9:00 o'clock in the evening, at Barangay Caridad Ilaya, Municipality of
Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with a caliber.22 firearm, with intent to kill, qualified by treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and shoot with said firearm Mary Grace Divina, a minor, 13 years old,
who suffered the following:

"Gunshot wound -

Point of Entry – lower abdomen, right, 2 cm. from the midline and 6 cm. from the level of the umbilicus, directed upward
toward the left upper abdomen."

and Claudine Divina, a minor, 3 ½ years of age, who suffered the following:

"Gunshot wound -

Point of Entry - 9th ICS along the mid-axillary line, right, 1 cm. diameter

Point of Exit - 7th ICS mid-axillary line, left;"

which directly caused their instant death.

That the crime committed in the dwelling of the offended party who had not given provocation for the attack and the
accused took advantage of nighttime to facilitate the commission of the offense.

Contrary to law. 2

In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger San Miguel, was charged with Multiple
Attempted Murder, allegedly committed as follows:

That on or about 9:00 o’clock in the evening of 6th day of June, 2002, at Barangay Caridad Ilaya, Municipality of
Atimonan, Province of Quezon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, armed with short firearms of undetermined
calibres, with intent to kill, qualified by treachery, with evident premeditation and abuse of superior strength, did then and
there wilfully, unlawfully and feloniously attack, assault, and shoot with the said firearms the house occupied by the family
of Norberto Divina, thereby commencing the commission of the crime of Murder, directly by overt acts, but did not perform
all the acts of execution which would have produced it by reason of some cause or accident other than the spontaneous
desistance of the accused, that is, the occupants Norberto Divina, his wife Maricel Divina and children Elizabeth Divina
and Judy Ann Divina, both elementary pupils and who are minors, were not hit.

CONTRARY TO LAW. 3
Roger San Miguel, however, moved for reinvestigation of the case against them. At said proceedings, one Danilo Fajarillo
submitted his sworn statement stating that on June 6, 2002, he saw appellant with a certain "Hapon" and Gilbert Estores
at the crime scene, but it was only appellant who was carrying a firearm while the other two had no participation in the
shooting incident. Fajarillo further stated that Roger San Miguel was not present at the crime scene. Based on the sworn
statement of Fajarillo, the Provincial Prosecutor found no prima facie case against Gilbert Estores and Roger San
Miguel. Thus, upon motion of the prosecution, the case for Attempted Murder against Gilbert Estores and Roger San
4

Miguel was dismissed, and trial proceeded only as to appellant. 5

At the trial, the prosecution presented the testimonies of Norberto Divina, the victim, and Dr. Lourdes Taguinod who
executed the Medico-Legal Certificate and confirmed that the children of Norberto, namely, Mary Grace and Claudine,
died from gunshot wounds. Dr. Taguinod noted that the trajectory of the bullet wounds showed that the victims were at a
higher location than the shooter, but she could not tell what kind of ammunitions were used. 6

Norberto testified that the appellant is his brother-in-law. He recounted that in the evening of June 6, 2002, as his entire
family lay down on the floor of their one-room nipa hut to sleep, the "sack" walling of their hut was suddenly stripped off,
and only the supporting bamboo (fences) remained. With the covering of the wall gone, the three (3) men responsible for
the deed came into view. Norberto clearly saw their faces which were illuminated by the light of a gas lamp hanging in
their small hut. Norberto identified the 3 men as appellant, Gilbert Estores and Roger San Miguel.

The 3 men ordered Norberto to come down from his house, but he refused to do so. The men then uttered, "Magdasal ka
na at katapusan mo na ngayon." Norberto pleaded with them, saying, "Maawa kayo sa amin, matanda na ako at marami
akong anak. Anong kasalanan ko sa inyo?" Despite such plea for mercy, a gunshot was fired, and Norberto immediately
threw his body over his children and wife in an attempt to protect them from being hit. Thereafter, he heard successive
gunshots being fired in the direction where his family huddled together in their hut.
7

When the volley of shots ceased and the three (3) men left, Norberto saw that his two (2) young daughters were
wounded. His wife went out of their house to ask for help from neighbors, while he and his older daughter carried the two
(2) wounded children out to the street. His daughter Mary Grace died on the way to the hospital, while Claudine expired at
the hospital despite the doctors' attempts to revive her.
8

In answer to questions of what could have prompted such an attack from appellant, Norberto replied that he had a
previous altercation with appellant who was angered by the fact that he (Norberto) filed a case against appellant's two
other brothers for molesting his daughter.9

On the other hand, appellant was only able to proffer denial and alibi as his defense. Appellant's testimony, along with
those of Gilbert Estores, Roger San Miguel, Isidro San Miguel and Ruben Alegre, was that he (appellant) was just
watching TV at the house of Isidro San Miguel, where he had been living for several years, at the time the shooting
incident occurred. However, he and the other witnesses admitted that said house was a mere five-minute walk away from
the crime scene. 10

Finding appellant’s defense to be weak, and ascribing more credence to the testimony of Norberto, the trial court ruled
that the evidence clearly established that appellant, together with two other assailants, conspired to shoot and kill the
family of Norberto. Appellant was then convicted of Double Murder in Criminal Case No. 7698-G and Multiple Attempted
Murder in Criminal Case No. 7702-G.

The dispositive portion of the trial court’s judgment in Criminal Case No. 7698-G reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond reasonable doubt for
Double Murder defined and punished under Article 248 of the Revised Penal Code and is hereby sentenced to
suffer Reclusion Perpetua for the death of Mary Grace Divina and to indemnify her heirs in the amount of Php50,000.00
and another to suffer Reclusion Perpetua for the death of Claudine Divina and accused is further ordered to indemnify the
heirs of Claudine Divina in the sum of Php50,000.00. In addition, he is hereby ordered to pay the heirs of the victims
actual damages in the amount of Php16,150.00 and to pay for the costs.

SO ORDERED. 11

On the other hand, the dispositive portion of the trial court’s judgment in Criminal Case No. 7702-G, reads:
WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond reasonable doubt for
Multiple Attempted Murder defined and penalized under Article 248 in relation to Article 51 of the Revised Penal Code and
is hereby sentenced to suffer the penalty of FOUR (4) YEARS and TWO (2) MONTHS of Prision Correccional as
minimum to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor as maximum for each of the offended parties; Norberto
Divina, Maricel Divina, Elizabeth Divina and Judy Ann Divina. Further, accused is ordered to pay for the costs of the suit.

SO ORDERED. 12

Aggrieved by the trial court's judgments, appellant appealed to the CA. On January 30, 2012, the CA rendered a Decision
affirming appellant's conviction for the crimes charged. 13

Dissatisfied with the CA Decision, appellant elevated the case to this Court. On July 30, 2012, the Court issued a
Resolution notifying the parties that they may submit their respective Supplemental Briefs. Both parties manifested that
14

they will no longer submit supplemental briefs since they had exhaustively discussed their positions before the CA. 15

The main issue advanced in the Appellant's Brief deals with the inconsistencies in Norberto's testimony, such as his
failure to state from the beginning that all three assailants had guns, and to categorically identify appellant as the one
holding the gun used to kill Norberto’s children.

The appeal is unmeritorious.

At the outset, it must be stressed that factual findings of the trial court, its assessment of the credibility of witnesses and
the probative weight of their testimonies, and the conclusions based on these factual findings are to be given the highest
respect. Thus, generally, the Court will not recalibrate and re-examine evidence that had been analyzed and ruled upon
by the trial court and affirmed by the CA.16

The evidence on record fully supports the trial court's factual finding, as affirmed by the CA, that appellant acted in concert
with two other individuals, all three of them carrying firearms and simultaneously firing at Norberto and his family, killing
his two young daughters. Norberto clearly saw all of the three assailants with their firearms as there is illumination coming
from a lamp inside their house that had been laid bare after its walling was stripped off, to wit:

Q: When the wall of your house was stripped off by these three persons at the same time, do you have light in your
house?

A: Yes, sir.

Q: What kind of light was there?

A: A gas lamp.

Q: Where was the gas lamp placed at that time?

A: In the middle of our house.

xxxx

Q: when did they fire a shot?

A: On the same night, when they had stripped off the wallings.

Q: How many gunshots did you hear?

A: Only one.

Q: Do you know the sound of a gunshot? A firearm?

A: Yes, sir, it is loud? (sic)

 xxxx

Q: After the first shot, was there any second shot?

A: After that, successive fire shot (sic) followed and my youngest and eldest daughters were hit.

xxxx

Q: How many of the three were holding guns at that time?

A: All of them.

Q: You mean to tell the honorable court that these three persons were

having one firearm each?

A: Yes, sir.

Q: And they fired shots at the same time?

A: Yes, sir.

Q: To what direction these three persons fired (sic) their firearms during that night?

A: To the place where we were.

Q: When those three persons were firing their respective firearms, what was your position then?

A: I ordered my children to lie down.

Q: How about you, what was your position when you were ordering your children to lie down?

A: (witness demonstrated his position as if covering his children with his body and ordering them to line (sic) down face
down)

Q: Mr. Witness, for how long did these three persons fire shots at your house?

A: Less than five minutes, sir.

Q: After they fired their shots, they left your house?

A: Yes, sir.

Q: And when these persons left your house, you inspected your children to see what happened to them?

A: Yes, sir, they were hit.

xxx 17

Appellant and the two other malefactors are equally responsible for the death of Norberto's daughters because, as ruled
by the trial court, they clearly conspired to kill Norberto's family. Conspiracy exists when two or more persons come to an
agreement regarding the commission of a crime and decide to commit it. Proof of a prior meeting between the
perpetrators to discuss the commission of the crime is not necessary as long as their concerted acts reveal a common
design and unity of purpose. In such case, the act of one is the act of all.18 Here, the three men undoubtedly acted in
concert as they went to the house of Norberto together, each with his own firearm. It is, therefore, no longer necessary to
identify and prove that it is the bullet particularly fired from appellant's firearm that killed the children.
Murder is defined under Article 248 of the Revised Penal Code as the unlawful killing of a person, which is not parricide or
infanticide, attended by circumstances such as treachery or evident premeditation. The presence of any one of the
19

circumstances enumerated in Article 248 of the Code is sufficient to qualify a killing as murder. The trial court correctly
20

ruled that appellant is liable for murder because treachery attended the killing of Norberto’s two children, thus:

x x x Evidence adduced show that the family of Norberto Divina, were all lying down side by side about to sleep on June
6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made of sack was stripped off by [appellant]
Ireneo Jugueta, Roger San Miguel and Gilberto Alegre (sic) [Gilbert Estores]. They ordered him to go out of their house
and when he refused despite his plea for mercy, they fired at them having hit and killed his two (2) daughters. The family
of Norberto Divina were unarmed and his children were at very tender ages. Mary Grace Divina and Claudine who were
shot and killed were 13 years old and 3 ½ years old respectively. In this case, the victims were defenseless and
manifestly overpowered by armed assailants when they were gunned down. There was clear showing that the attack was
made suddenly and unexpectedly as to render the victims helpless and unable to defend themselves. Norberto and his
wife and his children could have already been asleep at that time of the night. x x x 21

Verily, the presence of treachery qualified the killing of the hapless children to murder. As held in People v. Fallorina, the
22

essence of treachery is the sudden and unexpected attack on an unsuspecting victim without the slightest provocation on
his part. Minor children, who by reason of their tender years, cannot be expected to put up a defense. When an adult
person illegally attacks a child, treachery exists.

As to the charge of multiple attempted murder, the last paragraph of Article 6 of the Revised Penal Code states that a
felony is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance. In Esqueda v. People, the Court held:
23

If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical
injuries, if the offender had no intention to kill the victim, or frustrated or attempted homicide or frustrated murder or
attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of: (a) motive; (b) the
nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the
victim; (d) the manner the crime was committed; and (e) the words uttered by the offender at the time the injuries are
inflicted by him on the victim.

In this case, the prosecution has clearly established the intent to kill on the part of appellant as shown by the use of
firearms, the words uttered during, as well as the manner of, the commission of the crime. The Court thus quotes with
24

approval the trial court’s finding that appellant is liable for attempted murder, viz.:

In the case at bar, the perpetrators who acted in concert commenced the felony of murder first by suddenly stripping off
the wall of their house, followed by successive firing at the intended victims when Norberto Divina refused to go out of the
house as ordered by them. If only there were good in aiming their target, not only Mary Grace and Claudine had been
killed but surely all the rest of the family would surely have died. Hence, perpetrators were liable for Murder of Mary Grace
Divina and Claudine Divina but for Multiple Attempted Murder for Norberto Divina, Maricel Divina, Elizabeth Divina and
Judy Ann Divina. But as [appellant] Ireneo Jugueta was the only one charged in this case, he alone is liable for the crime
committed. 25

Meanwhile, the supposed inconsistencies in Norberto's testimony, i.e., that he failed to state from the very beginning that
all three assailants were carrying firearms, and that it was the shots from appellant’s firearm that killed the children, are
too trivial and inconsequential to put a dent on said witness's credibility. An examination of Norberto's testimony would
show that there are no real inconsistencies to speak of. As ruled in People v. Cabtalan, "[m]inor inconsistencies and
26

discrepancies pertaining to trivial matters do not affect the credibility of witnesses, as well as their positive identification of
the accused as the perpetrators of the crime." Both the trial court and the CA found Norberto's candid and
27

straightforward testimony to be worthy of belief and this Court sees no reason why it should not conform to the principle
reiterated in Medina, Jr. v. People that:
28

Time and again, this Court has deferred to the trial court's factual findings and evaluation of the credibility of
witnesses, especially when affirmed by the CA, in the absence of any clear showing that the trial court overlooked
or misconstrued cogent facts and circumstances that would justify altering or revising such findings and
evaluation. This is because the trial court's determination proceeds from its first-hand opportunity to observe the
demeanor of the witnesses, their conduct and attitude under grilling examination, thereby placing the trial court in
unique position to assess the witnesses' credibility and to appreciate their truthfulness, honesty and candor x x x. 29
The records of this case, particularly the testimonies of the witnesses, reveal no outstanding or exceptional circumstance
to justify a deviation from such long-standing principle. There is no cogent reason to overturn the trial court's ruling that
the prosecution evidence, particularly the testimony of Norberto Divina identifying appellant as one of the assailants, is
worthy of belief. Thus, the prosecution evidence established beyond any reasonable doubt that appellant is one of the
perpetrators of the crime.

However, the Court must make a clarification as to the nomenclature used by the trial court to identify the crimes for which
appellant was penalized. There is some confusion caused by the trial court's use of the terms "Double Murder" and
"Multiple Attempted Murder" in convicting appellant, and yet imposing penalties which nevertheless show that the trial
court meant to penalize appellant for two (2) separate counts of Murder and four (4) counts of Attempted Murder.

The facts, as alleged in the Information in Criminal Case No. 7698-G, and as proven during trial, show that appellant is
guilty of 2 counts of the crime of Murder and not Double Murder, as the killing of the victims was not the result of a single
act but of several acts of appellant and his cohorts. In the same vein, appellant is also guilty of 4 counts of the crime of
Attempted Murder and not Multiple Attempted Murder in Criminal Case No. 7702-G. It bears stressing that the
Informations in this case failed to comply with the requirement in Section 13, Rule 110 of the Revised Rules of Court that
an information must charge only one offense.

As a general rule, a complaint or information must charge only one offense, otherwise, the same is defective. The reason
for the rule is stated in People of the Philippines and AAA v. Court of Appeals, 21st Division, Mindanao Station, et
al., thus:
30

The rationale behind this rule prohibiting duplicitous complaints or informations is to give the accused the necessary
knowledge of the charge against him and enable him to sufficiently prepare for his defense. The State should not heap
upon the accused two or more charges which might confuse him in his defense. Non-compliance with this rule is a ground
for quashing the duplicitous complaint or information under Rule 117 of the Rules on Criminal Procedure and the accused
may raise the same in a motion to quash before he enters his plea, otherwise, the defect is deemed waived.

However, since appellant entered a plea of not guilty during arraignment and failed to move for the quashal of the
Informations, he is deemed to have waived his right to question the same. Section 9 of Rule 117 provides that "[t]he
failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either
because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any
objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."

It is also well-settled that when two or more offenses are charged in a single complaint or information but the accused fails
to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose upon
him the proper penalty for each offense. 31

Appellant can therefore be held liable for all the crimes alleged in the Informations in Criminal Case Nos. 7698-G and
7702-G, i.e., 2 counts of murder and 4 counts of attempted murder, respectively, and proven during trial.

Meanwhile, in People v. Nelmida, the Court explained the concept of a complex crime as defined in Article 4833 of the
32

Revised Penal Code, thus:

In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and in the conscience of
the offender they constitute only one crime, thus, only one penalty is imposed. There are two kinds of complex crime. The
first is known as a compound crime, or when a single act constitutes two or more grave or less grave felonies while the
other is known as a complex crime proper, or when an offense is a necessary means for committing the other. The classic
example of the first kind is when a single bullet results in the death of two or more persons. A different rule governs where
separate and distinct acts result in a number killed. Deeply rooted is the doctrine that when various victims expire from
separate shot, such acts constitute separate and distinct crimes. 34

Here, the facts surrounding the shooting incident clearly show that appellant and the two others, in firing successive and
indiscriminate shots at the family of Norberto from their respective firearms, intended to kill not only Norberto, but his
entire family. When several gunmen, as in this case, indiscriminately fire a series of shots at a group of people, it shows
their intention to kill several individuals. Hence, they are committing not only one crime. What appellant and his cohorts
committed cannot be classified as a complex crime because as held in People v. Nelmida, "each act by each gunman
35

pulling the trigger of their respective firearms, aiming each particular moment at different persons constitute distinct and
individual acts which cannot give rise to a complex crime." 36
Furthermore, the Court notes that both the trial court and the CA failed to take into account dwelling as an ordinary,
aggravating circumstance, despite the fact that the Informations in Criminal Case Nos. 7698-G and 7702-G contain
sufficient allegations to that effect, to wit:

Criminal Case No. 7698-G for Double Murder:

That the crime was committed in the dwelling of the offended party who had not given provocation for the attack and the
accused took advantage of nighttime to facilitate the commission of the offense. 37

Criminal Case No. 7702-G for Multiple Attempted Murder:

x x x the above-named accused, conspiring and confederating together and mutually helping one another, armed with
short firearms of undetermined calibres, with intent to kill, qualified by treachery, with evident premeditation and abuse of
superior strength, did then and there wilfully, unlawfully and feloniously attack, assault, and shoot with the said firearms
the house occupied by the family of Norberto Divina, thereby commencing the commission of the crime of Murder, directly
by overt acts, but did not perform all the acts of execution which would have produced it by reason of some cause or
accident other than the spontaneous desistance of the accused x x x 38

In People v. Agcanas, the Court stressed that "[i]t has been held in a long line of cases that dwelling is aggravating
39

because of the sanctity of privacy which the law accords to human abode. He who goes to another's house to hurt him or
do him wrong is more guilty than he who offends him elsewhere." Dwelling aggravates a felony where the crime is
committed in the dwelling of the offended party provided that the latter has not given provocation therefor. The testimony
40

of Norberto established the fact that the group of appellant violated the victims' home by destroying the same and
attacking his entire family therein, without provocation on the part of the latter. Hence, the trial court should have
appreciated dwelling as an ordinary aggravating circumstance.

In view of the attendant ordinary aggravating circumstance, the Court must modify the penalties imposed on appellant.
Murder is punishable by reclusion perpetua to death, thus, with an ordinary aggravating circumstance of dwelling, the
imposable penalty is death for each of two (2) counts of murder. However, pursuant to Republic Act (RA) No. 9346,
41

proscribing the imposition of the death penalty, the penalty to be imposed on appellant should be reclusion perpetua for
each of the two (2) counts of murder without eligibility for parole. With regard to the four (4) counts of attempted murder,
the penalty prescribed for each count is prision mayor. With one ordinary aggravating circumstance, the penalty should be
imposed in its maximum period. Applying the Indeterminate Sentence Law, the maximum penalty should be from ten (10)
years and one (1) day to twelve (12) years of prision mayor, while the minimum shall be taken from the penalty next lower
in degree, i.e., prision correccional, in any of its periods, or anywhere from six (6) months and one (1) day to six (6) years.
This Court finds it apt to impose on appellant the indeterminate penalty of four (4) years, two (2) months and one (1) day
of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as minimum, for each of the four
(4) counts of attempted murder.

Anent the award of damages, the Court deems it proper to address the matter in detail as regards criminal cases where
the imposable penalty is reclusion perpetua to death. Generally, in these types of criminal cases, there are three kinds of
damages awarded by the Court; namely: civil indemnity, moral, and exemplary damages. Likewise, actual damages may
be awarded or temperate damages in some instances.

First, civil indemnity ex delicto is the indemnity authorized in our criminal law for the offended party, in the amount
authorized by the prevailing judicial policy and apart from other proven actual damages, which itself is equivalent to actual
or compensatory damages in civil law. This award stems from Article 100 of the RPC which states, "Every person
42

criminally liable for a felony is also civilly liable."

It is to be noted that civil indemnity is, technically, not a penalty or a fine; hence, it can be increased by the Court when
appropriate. Article 2206 of the Civil Code provides:
43

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos,
even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by
the court, unless the deceased on account of permanent physical disability not caused by the defendant,
had no earning capacity at the time of his death;
 (2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient
who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may
demand support from the person causing the death, for a period not exceeding five years, the exact
duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation to the
victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the civil
aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment
imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution. Also, it is apparent
from Article 2206 that the law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law
did not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the
amount awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. 44

The second type of damages the Court awards are moral damages, which are also compensatory in nature. Del Mundo v.
Court of Appeals expounded on the nature and purpose of moral damages, viz.:
45

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such as physical
suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These
damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate
the claimant for the injury suffered. Although incapable of exactness and 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, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung from any of
the cases expressed in Article 2219 and Article 2220 of the Civil Code. x x x.
46 47

Similarly, in American jurisprudence, moral damages are treated as "compensatory damages awarded for mental pain
and suffering or mental anguish resulting from a wrong." They may also be considered and allowed "for resulting pain
48

and suffering, and for humiliation, indignity, and vexation suffered by the plaintiff as result of his or her assailant's conduct,
as well as the factors of provocation, the reasonableness of the force used, the attendant humiliating circumstances, the
sex of the victim, [and] mental distress." 49

The rationale for awarding moral damages has been explained in Lambert v. Heirs of Rey Castillon: "[T]he award of moral
damages is aimed at a restoration, within the limits possible, of the spiritual status quo ante; and therefore, it must be
proportionate to the suffering inflicted." 50

Corollarily, moral damages under Article 2220 of the Civil Code also does not fix the amount of damages that can be
51

awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party.
The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of
civil indemnity.
52

Finally, the Civil Code of the Philippines provides, in respect to exemplary damages, thus:

ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory damages.

ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was
committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be
paid to the offended party.

Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to serve as a deterrent
to serious wrong doings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a
punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In
common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and
for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and
wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible
53

conduct of the defendant – associated with such circumstances as willfulness, wantonness, malice, gross negligence or
recklessness, oppression, insult or fraud or gross fraud – that intensifies the injury. The terms punitive or vindictive
54

damages are often used to refer to those species of damages that may be awarded against a person to punish him for his
outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like
him from similar conduct in the future. 55

The term aggravating circumstances used by the Civil Code, the law not having specified otherwise, is to be understood in
its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the
social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim.
The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of
aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically
a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers
thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an
aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil,
liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or
qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article
2230 of the Civil Code. 56

The reason is fairly obvious as to why the Revised Rules of Criminal Procedure requires aggravating circumstances,
57

whether ordinary or qualifying, to be stated in the complaint or information. It is in order not to trample on the constitutional
right of an accused to be informed of the nature of the alleged offense that he or she has committed. A criminal complaint
or information should basically contain the elements of the crime, as well as its qualifying and ordinary aggravating
circumstances, for the court to effectively determine the proper penalty it should impose. This, however, is not similar in
the recovery of civil liability. In the civil aspect, the presence of an aggravating circumstance, even if not alleged in the
information but proven during trial would entitle the victim to an award of exemplary damages.

Being corrective in nature, exemplary damages, therefore, can be awarded, not only due to the presence of an
aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous
conduct of the offender. In much the same way as Article 2230 prescribes an instance when exemplary damages may be
awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the 58

Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from
sexually abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of
59

the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman.
In People v. Cañada, People v. Neverio and People v. Layco, Sr., the Court awarded exemplary damages to set a
60 61 62

public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual
abuse.

Existing jurisprudence pegs the award of exemplary damages at ₱30,000.00, despite the lack of any aggravating
63

circumstance. The Court finds it proper to increase the amount to ₱50,000.00 in order to deter similar conduct.

If, however, the penalty for the crime committed is death, which cannot be imposed because of the provisions of R.A. No.
9346, prevailing jurisprudence sets the amount of ₱100,000.00 as exemplary damages.
64

Before awarding any of the above mentioned damages, the Court, however, must first consider the penalty imposed by
law. Under RA 7659 or An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the
Revised Penal Laws, and for Other Purposes, certain crimes under the RPC and special penal laws were amended to
impose the death penalty under certain circumstances. Under the same law, the following crimes are punishable
65

by reclusion perpetua: piracy in general, mutiny on the high seas, and simple rape. For the following crimes, RA 7659
66 67 68

has imposed the penalty of reclusion perpetua to death: qualified piracy; qualified bribery under certain
69

circumstances; parricide; murder; infanticide, except when committed by the mother of the child for the purpose of
70 71 72

concealing her dishonor or either of the maternal grandparents for the same purpose; kidnapping and serious illegal
73

detention under certain circumstances; robbery with violence against or intimidation of persons under certain
74

circumstances; destructive arson, except when death results as a consequence of the commission of any of the acts
75

penalized under the article; attempted or frustrated rape, when a homicide is committed by reason or on occasion
76

thereof; plunder; and carnapping, when the driver or occupant of the carnapped motor vehicle is killed or raped in the
77

course of the commission of the carnapping or on the occasion thereof. Finally, RA 7659 imposes the death penalty on
78

the following crimes:

(a) In qualified bribery, when it is the public officer who asks or demands the gift or present.
 (b) In kidnapping and serious illegal detention: (i) when the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person; (ii) when the victim is killed or dies as a
consequence of the detention; (iii) when the victim is raped, subjected to torture or dehumanizing acts.

(c) In destructive arson, when as a consequence of the commission of any of the acts penalized under Article
320, death results.

(d) In rape: (i) when by reason or on occasion of the rape, the victim becomes insane or homicide is committed;
(ii) when committed with any of the following attendant circumstances: (1) when the victim is under eighteen (18)
years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law-spouse of the parent of the victim; (2) when the victim is under the
custody of the police or military authorities; (3) when the rape is committed in full view of the husband, parent, any
of the children or other relatives within the third degree of consanguinity; (4) when the victim is a religious or a
child below seven years old; (5) when the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease; (6) when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency; and (7) when by reason or on the occasion of the rape,
the victim has suffered permanent physical mutilation.

From these heinous crimes, where the imposable penalties consist of two (2) indivisible penalties or single indivisible
penalty, all of them must be taken in relation to Article 63 of the RPC, which provides:

Article 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes a single indivisible
penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be
observed in the application thereof:

1. when in the commission of the deed there is present only one aggravating circumstance, the greater penalty
shall be applied.

2. when there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser
penalty shall be applied.

3. when the commission of the act is attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied.

4. when both mitigating and aggravating circumstances attended the commission of the act, the courts shall
reasonably allow them to offset one another in consideration of their number and importance, for the purpose of
applying the penalty in accordance with the preceding rules, according to the result of such compensation.
(Revised Penal Code, Art. 63)

Thus, in order to impose the proper penalty, especially in cases of indivisible penalties, the court has the duty to ascertain
the presence of any mitigating or aggravating circumstances. Accordingly, in crimes where the imposable penalty
is reclusion perpetua to death, the court can impose either reclusion perpetua or death, depending on the mitigating or
aggravating circumstances present.

But with the enactment of RA 9346 or An Act Prohibiting the Imposition of Death Penalty in the Philippines, the imposition
of death penalty is now prohibited. It provides that in lieu of the death penalty, the penalty of reclusion perpetua shall be
imposed when the law violated makes use of the nomenclature of the penalties of the RPC. 79

As a result, the death penalty can no longer be imposed. Instead, they have to impose reclusion perpetua. Despite this,
the principal consideration for the award of damages, following the ruling in People v. Salome and People v.
80

Quiachon, is "the penalty provided by law or imposable for the offense because of its heinousness, not the public penalty
81

actually imposed on the offender." 82

When the circumstances surrounding the crime would justify the imposition of the death penalty were it not for RA 9346,
the Court has ruled, as early as July 9, 1998 in People v. Victor, that the award of civil indemnity for the crime of rape
83

when punishable by death should be ₱75,000.00 We reasoned that "[t]his is not only a reaction to the apathetic societal
perception of the penal law and the financial fluctuations over time, but also an expression of the displeasure of the Court
over the incidence of heinous crimes against chastity." Such reasoning also applies to all heinous crimes found in RA
84

7659. The amount was later increased to ₱100,000.00. 85

In addition to this, the Court likewise awards moral damages. In People v. Arizapa, ₱50,000.00 was awarded as moral
86

damages without need of pleading or proving them, for in rape cases, it is recognized that the victim's injury is
concomitant with and necessarily results from the odious crime of rape to warrant per se the award of moral
damages. Subsequently, the amount was increased to ₱75,000.00 in People v. Soriano and P100,000.00 in People v.
87 88

Gambao. 89

Essentially, despite the fact that the death penalty cannot be imposed because of RA 9346, the imposable penalty as
provided by the law for the crime, such as those found in RA 7569, must be used as the basis for awarding damages and
not the actual penalty imposed. 1avvphi1

Again, for crimes where the imposable penalty is death in view of the attendance of an ordinary aggravating circumstance
but due to the prohibition to impose the death penalty, the actual penalty imposed is reclusion perpetua, the latest
jurisprudence pegs the amount of ₱100,000.00 as civil indemnity and ₱100,0000.00 as moral damages. For the
90

qualifying aggravating circumstance and/or the ordinary aggravating circumstances present, the amount of ₱100,000.00 is
awarded as exemplary damages aside from civil indemnity and moral damages. Regardless of the attendance of
qualifying aggravating circumstance, the exemplary damages shall be fixed at ₱100,000.00. "[T]his is not only a reaction
to the apathetic societal perception of the penal law and the financial fluctuation over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes x x x." 91

When the circumstances surrounding the crime call for the imposition of reclusion perpetua only, there being no ordinary
aggravating circumstance, the Court rules that the proper amounts should be ₱75,000.00 as civil indemnity, ₱75,000.00
as moral damages and ₱75,000.00 exemplary damages, regardless of the number of qualifying aggravating
circumstances present.

When it comes to compound and complex crimes, although the single act done by the offender caused several crimes,
the fact that those were the result of a single design, the amount of civil indemnity and moral damages will depend on the
penalty and the number of victims. For each of the victims, the heirs should be properly compensated. If it is multiple
murder without any ordinary aggravating circumstance but merely a qualifying aggravating circumstance, but the penalty
imposed is death because of Art. 48 of the RPC wherein the maximum penalty shall be imposed, then, for every victim
92

who dies, the heirs shall be indemnified with ₱100,000.00 as civil indemnity, ₱100,000.00 as moral damages and
₱100,000.00 as exemplary damages.

In case of a special complex crime, which is different from a complex crime under Article 48 of the RPC, the following
doctrines are noteworthy:

In People of the Philippines v. Conrado Laog, this Court ruled that special complex crime, or more properly, a composite
93

crime, has its own definition and special penalty in the Revised Penal Code, as amended. Justice Regalado, in his
Separate Opinion in the case of People v. Barros, explained that composite crimes are "neither of the same legal basis
94

as nor subject to the rules on complex crimes in Article 48 [of the Revised Penal Code], since they do not consist of a
single act giving rise to two or more grave or less grave felonies [compound crimes] nor do they involve an offense being
a necessary means to commit another [complex crime proper]. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite
crimes although composed of two or more offenses." 95

In People v. De Leon, we expounded on the special complex crime of robbery with homicide, as follows:
96

In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on
the occasion or by reason of the robbery. The intent to commit robbery must precede the taking of human life. The
homicide may take place before, during or after the robbery. It is only the result obtained, without reference or distinction
as to the circumstances, causes or modes or persons intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The
constitutive elements of the crime, namely, robbery with homicide, must be consummated.

It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of
robbery, or that two or more persons are killed, or that aside from the homicide, rape, intentional mutilation, or usurpation
of authority, is committed by reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of
homicide is one of the robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by reason of or on the
occasion of the robbery are integrated into one and indivisible felony of robbery with homicide. The word "homicide" is
used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide.
97

In the special complex crime of rape with homicide, the term "homicide" is to be understood in its generic sense, and
includes murder and slight physical injuries committed by reason or on occasion of the rape. Hence, even if any or all of
98

the circumstances (treachery, abuse of superior strength and evident premeditation) alleged in the information have been
duly established by the prosecution, the same would not qualify the killing to murder and the crime committed by appellant
is still rape with homicide. As in the case of robbery with homicide, the aggravating circumstance of treachery is to be
considered as a generic aggravating circumstance only. Thus we ruled in People v. Macabales: 99

Finally, appellants contend that the trial court erred in concluding that the aggravating circumstance of treachery is
present. They aver that treachery applies to crimes against persons and not to crimes against property. However, we find
that the trial court in this case correctly characterized treachery as a generic aggravating, rather than qualifying,
circumstance. Miguel was rendered helpless by appellants in defending himself when his arms were held by two of the
attackers before he was stabbed with a knife by appellant Macabales, as their other companions surrounded them.
In People v. Salvatierra, we ruled that when alevosia (treachery) obtains in the special complex crime of robbery with
homicide, such treachery is to be regarded as a generic aggravating circumstance.

Robbery with homicide is a composite crime with its own definition and special penalty in the Revised Penal Code. There
is no special complex crime of robbery with murder under the Revised Penal Code. Here, treachery forms part of the
circumstances proven concerning the actual commission of the complex crime. Logically it could not qualify the homicide
to murder but, as generic aggravating circumstance, it helps determine the penalty to be imposed. 100

Applying the above discussion on special complex crimes, if the penalty is death but it cannot be imposed due to RA 9346
and what is actually imposed is the penalty of reclusion perpetua, the civil indemnity and moral damages will be
₱100,000.00 each, and another ₱100,000.00 as exemplary damages in view of the heinousness of the crime and to set
an example. If there is another composite crime included in a special complex crime and the penalty imposed is death, an
additional ₱100,000.00 as civil indemnity, ₱100,000.00 moral damages and ₱100,000.00 exemplary damages shall be
awarded for each composite crime committed.

For example, in case of Robbery with Homicide wherein three (3) people died as a consequence of the crime, the heirs
101

of the victims shall be entitled to the award of damages as discussed earlier. This is true, however, only if those who were
killed were the victims of the robbery or mere bystanders and not when those who died were the perpetrators or robbers
themselves because the crime of robbery with homicide may still be committed even if one of the robbers dies. This is
102

also applicable in robbery with rape where there is more than one victim of rape.

In awarding civil indemnity and moral damages, it is also important to determine the stage in which the crime was
committed and proven during the trial. Article 6 of the RPC provides:

Art. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those which are frustrated
and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is
frustrated when an offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.

As discussed earlier, when the crime proven is consummated and the penalty imposed is death but reduced to reclusion
perpetua because of R.A. 9346, the civil indemnity and moral damages that should be awarded will each be ₱100,000.00
and another ₱100,000.00 for exemplary damages or when the circumstances of the crime call for the imposition
of reclusion perpetua only, the civil indemnity and moral damages should be ₱75,000.00 each, as well as exemplary
damages in the amount of ₱75,000.00. If, however, the crime proven is in its frustrated stage, the civil indemnity and
moral damages that should be awarded will each be ₱50,000.00, and an award of ₱25,000.00 civil indemnity and
₱25,000.00 moral damages when the crime proven is in its attempted stage. The difference in the amounts awarded for
the stages is mainly due to the disparity in the outcome of the crime committed, in the same way that the imposable
penalty varies for each stage of the crime. The said amounts of civil indemnity and moral damages awarded in cases of
felonies in their frustrated or attempted stages shall be the bases when the crimes committed constitute complex crime
under Article 48 of the RPC. For example, in a crime of murder with attempted murder, the amount of civil indemnity,
moral damages and exemplary damages is ₱100,000.00 each, while in the attempted murder, the civil indemnity, moral
damages and exemplary damages is ₱25,000.00 each.

In a special complex crime, like robbery with homicide, if, aside from homicide, several victims (except the robbers)
sustained injuries, they shall likewise be indemnified. It must be remembered that in a special complex crime, unlike in a
complex crime, the component crimes have no attempted or frustrated stages because the intention of the offender/s is to
commit the principal crime which is to rob but in the process of committing the said crime, another crime is committed. For
example, if on the occasion of a robbery with homicide, other victims sustained injuries, regardless of the severity, the
crime committed is still robbery with homicide as the injuries become part of the crime, "Homicide", in the special complex
crime of robbery with homicide, is understood in its generic sense and now forms part of the essential element of
robbery, which is the use of violence or the use of force upon anything. Hence, the nature and severity of the injuries
103

sustained by the victims must still be determined for the purpose of awarding civil indemnity and damages. If a victim
suffered mortal wounds and could have died if not for a timely medical intervention, the victim should be awarded civil
indemnity, moral damages, and exemplary damages equivalent to the damages awarded in a frustrated stage, and if a
victim suffered injuries that are not fatal, an award of civil indemnity, moral damages and exemplary damages should
likewise be awarded equivalent to the damages awarded in an attempted stage.

In other crimes that resulted in the death of a victim and the penalty consists of divisible penalties, like homicide, death
under tumultuous affray, reckless imprudence resulting to homicide, the civil indemnity awarded to the heirs of the victim
shall be ₱50,000.00 and ₱50,000.00 moral damages without exemplary damages being awarded. However, an award of
₱50,000.00 exemplary damages in a crime of homicide shall be added if there is an aggravating circumstance present
that has been proven but not alleged in the information.

Aside from those discussed earlier, the Court also awards temperate damages in certain cases. The award of ₱25,000.00
as temperate damages in homicide or murder cases is proper when no evidence of burial and funeral expenses is
presented in the trial court. Under Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot be
104

denied that the heirs of the victims suffered pecuniary loss although the exact amount was not proved. In this case, the
105

Court now increases the amount to be awarded as temperate damages to ₱50,000.00.

In the case at bar, the crimes were aggravated by dwelling, and the murders committed were further made atrocious by
the fact that the victims are innocent, defenseless minors – one is a mere 3½-year-old toddler, and the other a 13-year-old
girl. The increase in the amount of awards for damages is befitting to show not only the Court's, but all of society's outrage
over such crimes and wastage of lives.

In summary:

I. For those crimes like, Murder, Parricide, Serious Intentional Mutilation, Infanticide, and other crimes
106 107 108 109 110

involving death of a victim where the penalty consists of indivisible penalties:

1.1 Where the penalty imposed is death but reduced to reclusion perpetua because of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱75,000.00

ii. Moral damages – ₱75,000.00

iii. Exemplary damages – ₱75,000.00

 b. Attempted:

i. Civil indemnity – ₱50,000.00

ii. Exemplary damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱50,000.00

ii. Moral damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

b. Attempted:

i. Civil indemnity – ₱25,000.00

ii. Moral damages – ₱25,000.00

iii. Exemplary damages – ₱25,000.00

II. For Simple Rape/Qualified Rape:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

111

1.2 Where the crime committed was not consummated but merely attempted: 112

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-mentioned:

a. Civil indemnity – ₱75,000.00

 b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated, but merely attempted:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

III. For Complex crimes under Article 48 of the Revised Penal Code where death, injuries, or sexual abuse
results, the civil indemnity, moral damages and exemplary damages will depend on the penalty, extent of violence
and sexual abuse; and the number of victims where the penalty consists of indivisible penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the penalty imposed is reclusion perpetua, other than the above-mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

The above Rules apply to every victim who dies as a result of the crime committed. In other complex
crimes where death does not result, like in Forcible Abduction with Rape, the civil indemnity, moral and
exemplary damages depend on the prescribed penalty and the penalty imposed, as the case may be.

IV. For Special Complex Crimes like Robbery with Homicide, Robbery with Rape, Robbery with Intentional
113 114

Mutilation, Robbery with

115

Arson, Rape with Homicide, Kidnapping with Murder, Carnapping with Homicide or Carnapping with
116 117 118 119

Rape, Highway Robbery with Homicide, Qualified Piracy, Arson with Homicide, Hazing with Death, Rape,
120 121 122 123

Sodomy or Mutilation and other crimes with death, injuries, and sexual abuse as the composite crimes, where
124

the penalty consists of indivisible penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the above if the penalty
imposed is Death but reduced to reclusion perpetua although death did not occur.

1.2 For the victims who suffered mortal/fatal wounds and could have died if not for a timely medical
125

intervention, the following shall be awarded:

 a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

1.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the above if the penalty
imposed is reclusion perpetua.

2.2 For the victims who suffered mortal/fatal wounds and could have died if not for a timely medical
intervention, the following shall be awarded:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

In Robbery with Physical Injuries, the amount of damages shall likewise be dependent on the
126

nature/severity of the wounds sustained, whether fatal or non-fatal.

The above Rules do not apply if in the crime of Robbery with Homicide, the robber/s or perpetrator/s are
themselves killed or injured in the incident.1âwphi1

Where the component crime is rape, the above Rules shall likewise apply, and that for every additional
rape committed, whether against the same victim or other victims, the victims shall be entitled to the same
damages unless the other crimes of rape are treated as separate crimes, in which case, the damages
awarded to simple rape/qualified rape shall apply.

V. In other crimes that result in the death of a victim and the penalty consists of divisible penalties, i.e., Homicide,
Death under Tumultuous Affray, Infanticide to conceal the dishonour of the offender, Reckless Imprudence
127

Resulting to Homicide, Duel, Intentional Abortion and Unintentional Abortion, etc.:

 1.1 Where the crime was consummated:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

1.2 Where the crime committed was not consummated, except those crimes where there are no
stages, i.e., Reckless Imprudence and Death under tumultuous affray:

a. Frustrated:

i. Civil indemnity – ₱30,000.00

ii. Moral damages – ₱30,000.00

b. Attempted:

i. Civil indemnity – ₱20,000.00

ii. Moral damages – ₱20,000.00

If an aggravating circumstance was proven during the trial, even if not alleged in the
Information, in addition to the above mentioned amounts as civil indemnity and moral damages,
128

the amount of ₱50,000.00 exemplary damages for consummated; ₱30,000.00 for frustrated; and
₱20,000.00 for attempted, shall be awarded.

VI. A. In the crime of Rebellion where the imposable penalty is reclusion perpetua and death occurs in the course
of the rebellion, the heirs of those who died are entitled to the following:
129

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00 130

B. For the victims who suffered mortal/fatal wounds in the course of the rebellion and could have died if
not for a timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

C. For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

VII. In all of the above instances, when no documentary evidence of burial or funeral expenses is presented in
court, the amount of ₱50,000.00 as temperate damages shall be awarded.
To reiterate, Article 2206 of the Civil Code provides that the minimum amount for awards of civil indemnity is P3,000.00,
but does not provide for a ceiling. Thus, although the minimum amount cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. 131

Prescinding from the foregoing, for the two (2) counts of murder, attended by the ordinary aggravating circumstance of
dwelling, appellant should be ordered to pay the heirs of the victims the following damages: (1) ₱100,000.00 as civil
indemnity for each of the two children who died; (2) ₱100,000.00 as moral damages for each of the two victims; (3)
another ₱100,000.00 as exemplary damages for each of the two victims; and (4) temperate damages in the amount of
₱50,000.00 for each of the two deceased. For the four (4) counts of Attempted Murder, appellant should pay ₱50,000.00
as civil indemnity, ₱50,000.00 as moral damages and ₱50,000.00 as exemplary damages for each of the four victims. In
addition, the civil indemnity, moral damages, exemplary damages and temperate damages payable by the appellant are
subject to interest at the rate of six percent (6%) per annum from the finality of this decision until fully paid.
132

Lastly, this Court echoes the concern of the trial court regarding the dismissal of the charges against Gilberto Estores and
Roger San Miguel who had been identified by Norberto Divina as the companions of appellant on the night the shooting
occurred. Norberto had been very straightforward and unwavering in his identification of Estores and San Miguel as the
two other people who fired the gunshots at his family. More significantly, as noted by the prosecutor, the testimonies of
Estores and San Miguel, who insisted they were not at the crime scene, tended to conflict with the sworn statement of
Danilo Fajarillo, which was the basis for the Provincial Prosecutor's ruling that he finds no probable cause against the two.
Danilo Fajarillo's sworn statement said that on June 6, 2002, he saw appellant with a certain "Hapon" and Gilbert Estores
at the crime scene, but it was only appellant who was carrying a firearm and the two other people with him had no
participation in the shooting incident. Said circumstances bolster the credibility of Norberto Divina's testimony that Estores
and San Miguel may have been involved in the killing of his two young daughters.

After all, such reinvestigation would not subject Estores and San Miguel to double jeopardy because the same only
attaches if the following requisites are present: (1) a first jeopardy has attached before the second; (2) the first jeopardy
has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. In turn, a first jeopardy
attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has
been entered; and (e) when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated
without his express consent. In this case, the case against Estores and San Miguel was dismissed before they were
133

arraigned. Thus, there can be no double jeopardy to speak of. Let true justice be served by reinvestigating the real
participation, if any, of Estores and San Miguel in the killing of Mary Grace and Claudine Divina.

WHEREFORE, the instant appeal is DISMISSED. The Decision of the Court of Appeals dated January 30, 2012 in CA-
G.R. CR HC No. 03252 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. 7698-G, the Court finds accused-appellant Ireneo Jugueta GUILTY beyond reasonable
doubt of two (2) counts of the crime of murder defined under Article 248 of the Revised Penal Code, attended by
the aggravating circumstance of dwelling, and hereby sentences him to suffer two (2) terms of reclusion
perpetua without eligibility for parole under R.A. 9346. He is ORDERED to PAY the heirs of Mary Grace Divina
and Claudine Divina the following amounts for each of the two victims: (a) ₱100,000.00 as civil indemnity; (b)
₱100,000.00 as moral damages; (c) ₱100,000.00 as exemplary damages; and (d) ₱50,000.00 as temperate
damages.

(2) In Criminal Case No. 7702-G, the Court finds accused-appellant Ireneo Jugueta GUILTY beyond reasonable
doubt of four (4) counts of the crime of attempted murder defined and penalized under Article 248 in relation to
Article 51 of the Revised Penal Code, attended by the aggravating circumstance of dwelling, and sentences him
to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum, to ten (10) years and one (1) day of prision mayor, as maximum, for each of the four (4) counts of
attempted murder. He is ORDERED to PAY moral damages in the amount of P50,000.00, civil indemnity of
P50,000.00 and exemplary damages of PS0,000.00 to each of the four victims, namely, Norberto Divina, Maricel
Divina, Elizabeth Divina and Judy Ann Divina.

(3) Accused-appellant Ireneo Jugueta is also ORDERED to PAY interest at the rate of six percent (6%) per
annum from the time of finality of this decision until fully paid, to be imposed on the civil indemnity, moral
damages, exemplary damages and temperate damages.

(4) Let the Office of the Prosecutor General, through the Department of Justice, be FURNISHED a copy of this
Decision. The Prosecutor General is DIRECTED to immediately conduct a REINVESTIGATION on the possible
 criminal liability of Gilbert Estores and Roger San Miguel regarding this case. Likewise, let a copy of this Decision
be furnished the Secretary of Justice for his information and guidance.

SO ORDERED.
 OCEANEERING CONTRACTORS (PHILS), INC. G.R. No. 184215
,
Petitioner,

Present:

CORONA, C.J.,
- versus - Chairperson,
VELASCO, JR.,
LEONARDO-DE CASTRO
DEL CASTILLO, and
PEREZ, JJ.

NESTOR N. BARRETTO, doing business as

N.N.B. LIGHTERAGE,
Respondents. Promulgated:

February 9, 2011

x--------------------------------------------------x

DECISION

PEREZ, J.:

The requirements for an award of actual damages are central to this petition for review filed under Rule 45 of
the 1997 Rules of Civil Procedure, primarily assailing the Decision dated 12 December 2007 rendered by the then
Special Third Division of the Court of Appeals (CA) in CA-G.R. CV No. 87168,[1] the dispositive portion of
which states:

WHEREFORE, premises considered, the instant appeal is PARTIALLY GRANTED. The decision dated
27 December 2005 and order dated 28 April 2006 of the Regional Trial Court of Las Pias, City, Branch
255, to the extent that it dismissed the counterclaims of defendant-appellant, are hereby reversed and set
aside. Plaintiff-appellee is ordered to pay defendant-appellant the amount of P306,000.00 as actual damages
and P30,000.00 as attorneys fees.

SO ORDERED. [2]

The Facts
Doing business under the name and style of N.N. B. Lighterage, respondent Nestor N. Barretto (Barretto) is the
owner of the Barge Antonieta[3] which was last licensed and permitted to engage in coastwise trading for a period
of one year expiring on 21 August 1998.[4] On 27 November 1997, Barretto and petitioner Oceaneering
Contractors (Phils.), Inc. (Oceaneering) entered into a Time Charter Agreement whereby, for the contract price
of P306,000.00,[5] the latter hired the aforesaid barge for a renewable period of thirty calendar days, for the
purpose of transporting construction materials from Manila to Ayungon, Negros Oriental.[6] Brokered by
freelance ship broker Manuel Velasco,[7]the agreement included Oceaneerings acknowledgment of the
seaworthiness of the barge as well as the following stipulations, to wit:

a) [Barreto] shall be responsible for the salaries, subsistence, SSS premium, medical, workmens
compensation contribution and other legal expenses of the crew;

b) [Oceaneering] shall be responsible for all port charges, insurance of all equipments, cargo loaded to the
above mentioned deck barge against all risks (Total or Partial), or theft, security and stevedoring
during loading and unloading operations and all other expenses pertinent to the assessment, fines
and forfeiture for any violation that may be imposed in relation to the operation of the barge;

xxxx

(f) Delivery and re-delivery be made in Pasig River, Metro Manila;

(g) Damage to deck barge caused by carelessness or negligence of stevedores hired by [Oceaneering] will
be [Oceaneerings] liability. Upon clear findings by owners or barge patron of any damages to the
barge that will endanger its seaworth(i)ness and stability, such damage/s shall be repaired first
before loading and leaving port. Under such conditions, the Barge Patron has the right to refuse
loading and/or leaving port;

xxxx

(i) [Barreto] reserves the right to stop, abort and deviate any voyage in case of imminent danger to the
crew and/or vessel that may be occasioned by any storm, typhoon, tidal wave or any similar
events.[8]

In accordance with the agreement, Oceaneerings hired stevedores who loaded the barge with pipe piles,
steel bollards, concrete mixers, gravel, sand, cement and other construction materials in the presence of and under
the direct supervision of the broker Manuel Velasco and Barrettos Bargemen.[9] In addition to the polythene ropes
with which they were lashed, the cargoes were secured by steel stanchions which Oceaneering caused to be
welded on the port and starboard sides of the barge.[10] On 3 December 1997, the barge eventually left Manila for
Negros Oriental, towed by the tug-boat Ayalit" which, for said purpose, was likewise chartered by Oceaneering
from Lea Mer Industries, Inc.[11]On 5 December 1997, however, Barrettos Bargeman, Eddie La Chica, executed
a Marine Protest,[12] reporting the following circumstances under which the barge reportedly capsized in the
vicinity of Cape Santiago, Batangas, viz.:

That on or about 1635 December 3, 1997, Barge Antonieta departed Pico de Loro, Pasig River and
towed by Tug-Boat Ayalit bound for Ayungon, Negros Oriental with cargo onboard steel pipes and various
construction materials. While underway on or about 0245 December 4, 1997 encountered rough sea at the
vicinity of Cape Santiago, Batangas and ma(d)e the barge x x x roll and pitch which caused the steel pipes
and various construction materials to shift on the starboardside causing the breakdown of the steel
stanch(i)ons welded on the deck of the barge leaving holes on the deck that cause(d) water to enter the hold.
 That on or about 1529 December 5, 199[7], with the continuous entrance of sea water on the hold,
the barge totally capsized touch(ed) bottom.

On 9 December 1997, Barretto apprised Oceaneering of the supposed fact that the mishap was caused by
the incompetence and negligence of the latters personnel in loading the cargo and that it was going to proceed
with the salvage, refloating and repair of the barge.[13] In turn contending that the barge tilted because of the water
which seeped through a hole in its hull, Oceaneering caused its counsel to serve Barretto a letter dated 12 March
1998, demanding the return of the unused portion of the charter payment amounting to P224,400.00 as well as
the expenses in the sum of P125,000.00 it purportedly incurred in salvaging its construction materials.[14] In a
letter dated 25 March 1998, however, Barrettos counsel informed Oceaneering that its unused charter payment
was withheld by his client who was likewise seeking reimbursement for the P836,425.00 he expended in
salvaging, refloating and repairing the barge.[15] In response to Barrettos 29 June 1998 formal demand for the
payment of the same expenses,[16]Oceaneering reiterated its demand for the return of the unused charter payment
and the reimbursement of its salvaging expenses as aforesaid.[17]

On 6 October 1998, Barretto commenced the instant suit with the filing of his complaint for damages against
Oceaneering, which was docketed as Civil Case No. LP-98-0244 before Branch 255 of the Regional Trial Court
(RTC) of Las Pias City. Contending that the accident was attributable to the incompetence and negligence which
attended the loading of the cargo by Oceaneerings hired employees, Barretto sought indemnities for expenses
incurred and lost income in the aggregate sum of P2,750,792.50 and attorneys fees equivalent to 25% of said
sum.[18] Specifically denying the material allegations of the foregoing complaint in its 26 January 1999 answer,
Oceaneering, on the other hand, averred that the accident was caused by the negligence of Barrettos employees
and the dilapidated hull of the barge which rendered it unseaworthy. As a consequence, Oceaneering prayed for
the grant of its counterclaims for the value of its cargo in the sum of P4,055,700.00, salvaging expenses in the
sum of P125,000.00, exemplary damages, attorneys fees and litigation expenses.[19]

The issues thus joined and the mandatory pre-trial conference subsequently terminated upon the agreement of the
parties,[20] the RTC proceeded to try the case on the merits. In support of his complaint, Barretto took the witness
stand to prove the seaworthiness of the barge as well as the alleged negligent loading of the cargo by Oceaneerings
employees.[21] Barretto also presented the following witnesses: (a) Toribio Barretto II, Vice President for
Operations of N.B.B. Lighterage, who primarily testified on the effort exerted to salvage the barge;[22] and, (b)
Manuel Velasco, who testified on his participation in the execution of the Time Charter Agreement as well as the
circumstances before and after the sinking of the barge.[23] By way of defense evidence, Oceaneering in turn
presented the testimonies of the following witnesses: (a) Engr. Wenifredo Oracion, its Operations Manager, to
prove, among other matters, the value of the cargo and the salvage operation it conducted in the premises;[24] and,
(b) Maria Flores Escao, Accounting Staff at Castillo Laman Tan Pantaleon and San Jose Law Offices, to prove
its claim for attorneys fees and litigation expenses.[25]

To disprove the rough sea supposedly encountered by the barge as well as the negligence imputed against
its employees, Oceaneering further adduced the testimonies of the following witnesses: (a) Rosa Barba, a Senior
Weather Specialist at the Philippine Atmospheric, Geophysical and Astronomical Services Administration
(PAGASA);[26] (b) Cmdr. Herbert Catapang, Officer-in-Charge of the Hydrographic Division at the National
Mapping Resource Information Authority (NAMRIA);[27] and, (c) Engr. Carlos Gigante, a freelance marine
surveyor and licensed naval architect.[28] Recalled as a rebuttal witness, Toribio Barretto II, in turn, asserted that
the hull of the barge was not damaged and that the sinking of said vessel was attributable to the improper loading
of Oceaneerings construction materials.[29] Upon the formal offer respectively made by the parties, the pieces of
documentary evidence identified and marked in the course of the testimonies of the above named
witnesses[30] were, accordingly, admitted by the RTC.[31]

On 27 December 2005, the RTC rendered a decision, dismissing both Barrettos complaint and
Oceaneerings counterclaims for lack of merit. While finding that Barretto failed to adduce sufficient and
convincing evidence to prove that the accident was due to the negligence of Oceaneerings employees, the RTC
nevertheless brushed aside the latters claim that the barge was not seaworthy as acknowledged in the Time Charter
Agreement. Alongside its claim for reimbursement of the sums expended for the salvage operation it conducted
which was denied for lack of evidence to prove the same, Oceaneerings claim for the value of its cargo was
likewise denied on the ground, among other matters, that the same was not included in the demand letters it served
Barretto; and, that it has no one but itself to blame for failing to insure its cargo against all risks, as provided in
the parties agreement. With its claims for exemplary damages and attorneys fees further denied for lack of
showing of bad faith on the part of Barretto,[32]Oceaneering filed the motion for partial reconsideration of the
foregoing decision[33] which was denied for lack of merit in the RTCs 28 April 2006 order.[34]

Dissatisfied, Oceaneering perfected its appeal from the aforesaid 27 December 2005 decision on the
ground that the RTC reversibly erred in not finding that the accident was caused by the unseaworthy condition of
the barge and in denying its counterclaims for actual and exemplary damages as well as attorneys fees and
litigation expenses. Docketed before the CA as CA-G.R. CV No. 87168,[35] the appeal was partially granted in
the herein assailed 12 December 2007 decision upon the finding, among others, that the agreement executed by
the parties, by its express terms, was a time charter where the possession and control of the barge was retained by
Barretto; that the latter is, therefore, a common carrier legally charged with extraordinary diligence in the
vigilance over the goods transported by him; and, that the sinking of the vessel created a presumption of
negligence and/or unseaworthiness which Barretto failed to overcome and gave rise to his liability for
Oceaneerings lost cargo despite the latters failure to insure the same.Applying the rule, however, that actual
damages should be proved with a reasonable degree of certainty, the CA denied Oceaneerings claim for the value
of its lost cargo and merely ordered the refund of the P306,000.00 it paid for the time charter, with indemnity for
attorneys fees in the sum of P30,000.[36]

Alongside that interposed by Barretto, the motion for reconsideration of the foregoing decision filed by
Oceaneerings[37] was denied for lack of merit in the CAs resolution dated 11 August 2008,[38] hence, this petition.

The Issues

Oceaneering urges the reversal of the assailed 12 December 2007 decision and 11 August 2008 resolution
on the ground that the CA erred in the following wise:
 I. IN HOLDING THAT THERE WERE NO VALID DOCUMENTS SHOWING THE
REAL VALUE OF THE MATERIALS LOST AND THOSE ACTUALLY
RECOVERED.

II. IN DENYING OCEANEERINGS COUNTERCLAIMS FOR ACTUAL DAMAGES

AMOUNTING TO (A) P3,704,700.00 REPRESENTING THE VALUE OF THE
MATERIALS IT LOST DUE TO THE SINKING OF [BARRETOS] BARGE; AND
(b) P125,000.00 REPRESENTING THE EXPENSES IT INCURRED FOR
SALVAGING ITS CARGO.

III. IN AWARDING OCEANEERINGS COUNTERCLAIM FOR ATTORNEYS FEES IN

THE REDUCED AMOUNT OF P30,000.00 ONLY.[39]

The Courts Ruling

We find the modification of the assailed decision in order.

Oceaneering argues that, having determined Barrettos liability for presumed negligence as a common carrier, the
CA erred in disallowing its counterclaims for the value of the construction materials which were lost as a
consequence of the sinking of the barge. Alongside the testimony elicited from its Operations Manager, Engr.
Winifredo Oracion, Oceaneering calls attention to the same witness inventory which pegged the value of said
construction materials at P4,055,700.00, as well as the various sales receipts, order slips, cash vouchers and
invoices which were formally offered before and admitted in evidence by the RTC. Considering that it was able
to salvage only nine steel pipes amounting to P351,000.00, Oceaneering insists that it should be indemnified the
sum of P3,703,700.00 for the value of the lost cargo, with legal interest at 12% per annum, from the date of
demand until fully paid. In addition, Oceaneering maintains that Barretto should be held liable to refund
the P306,000.00 it paid as consideration for the Time Charter Agreement and to pay the P125,000.00 it incurred
by way of salvaging expenses as well as its claim for attorneys fees in the sum of P750,000.00.

In finding Oceaneerings petition impressed with partial merit, uppermost in our mind is the fact that actual
or compensatory damages are those damages which the injured party is entitled to recover for the wrong done
and injuries received when none were intended.[40] Pertaining as they do to such injuries or losses that are actually
sustained and susceptible of measurement,[41] they are intended to put the injured party in the position in which
he was before he was injured.[42] Insofar as actual or compensatory damages are concerned, Article 2199 of
the Civil Code of the Philippines provides as follows:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages.

Conformably with the foregoing provision, the rule is long and well settled that there must be pleading and proof
of actual damages suffered for the same to be recovered.[43] In addition to the fact that the amount of loss must be
capable of proof, it must also be actually proven with a reasonable degree of certainty, premised upon competent
proof or the best evidence obtainable.[44] The burden of proof of the damage suffered is, consequently, imposed
on the party claiming the same[45] who should adduce the best evidence available in support thereof, like sales
and delivery receipts, cash and check vouchers and other pieces of documentary evidence of the same nature. In
the absence ofcorroborative evidence, it has been held that self-serving statements of account are not sufficient
basis for an award of actual damages.[46] Corollary to the principle that a claim for actual damages cannot be
predicated on flimsy, remote, speculative, and insubstantial proof,[47] courts are, likewise, required to state the
factual bases of the award.[48]

Applying the just discussed principles to the case at bench, we find that Oceaneering correctly fault the CA for
not granting its claim for actual damages or, more specifically, the portions thereof which were duly pleaded and
adequately proved before the RTC. While concededly not included in the demand letters dated 12 March
1998[49] and 13 July 1998[50] Oceaneering served Barretto, the formers counterclaims for the value of its lost cargo
in the sum of P4,055,700.00 and salvaging expenses in the sum of P125,000.00 were distinctly pleaded and prayed
for in the 26 January 1999 answer it filed a quo.[51] Rather than the entire P4,055,700.00 worth of construction
materials reflected in the inventory[52] which Engr. Oracion claims to have prepared on 29 November 1997, based
on the delivery and official receipts from Oceaneerings suppliers,[53] we are, however, inclined to grant only the
following items which were duly proved by the vouchers and receipts on record, viz.: (a) P1,720,850.00 worth of
spiral welded pipes with coal tar epoxy procured on 22 November 1997;[54] (b) P629,640.00 worth of spiral
welded steel pipes procured on 28 October 1997;[55] (c) P155,500.00 worth of various stainless steel materials
procured on 27 November 1997;[56] (d) P66,750.00 worth of gaskets and shackles procured on 20 November
1997;[57] and, (e) P4,880.00 worth of anchor bolt procured on 27 November 1997.[58]

The foregoing sums all add up to of P2,577,620.00 from which should be deducted the sum of P351,000.00
representing the value of the nine steel pipes salvaged by Oceaneering, or a total of P2,226,620.00 in actual
damages representing the value of the latters lost cargo. Excluded from the computation are the following items
which, on account of the dates of their procurement, could not have possibly been included in the 29 November
1997 inventory prepared by Engr. Oracion, to wit: (a) P1,129,640.00 worth of WO#1995 and PO#OCPI-060-97
procured on 9 December 1997;[59] and, (b) P128,000.00 worth of bollard procured on 16 December
1997.[60] Likewise excluded are the anchor bolt with nut Oceaneering claims to have procured for an unspecified
amount on 3 November 1997[61] and the P109,018.50 worth of Petron oil it procured on 28 November
1997[62] which does not fit into the categories of lost cargo and/or salvaging expenses for which it interposed
counterclaims a quo. Although included in its demand letters as aforesaid and pleaded in its answer, Oceaneerings
claim for salvaging expenses in the sum of P125,000.00 cannot, likewise, be granted for lack of credible evidence
to support the same.

Tested alongside the twin requirements of pleading and proof for the grant of actual damages, on the other
hand, we find that the CA also erred in awarding the full amount of P306,000.00 in favor of Oceaneering, as and
by way of refund of the consideration it paid Barretto for the Time Charter Agreement. Aside from not being
clearly pleaded in the answer it filed a quo, said refund was claimed in Oceaneerings demand letters only to the
extent of the unused charter payment in the reduced sum of P224,400.00[63] which, to our mind, should be the
correct measure of the award. Having breached an obligation which did not constitute a loan or forbearance of
money, moreover, Barretto can only be held liable for interest at the rate of 6% per annum on said amount as well
as the P2,226,620.00 value of the lost cargo instead of the 12% urged by Oceaneering. Although the lost cargo
was not included in the demand letters the latter served the former, said interest rate of 6% per annum shall be
imposed from the time of the filing of the complaint which is equivalent to a judicial demand.[64] Upon the finality
of this decision, said sums shall earn a further interest of 12% per annum until full payment in accordance with
the following pronouncements handed down in Eastern Shipping Lines, Inc. vs. Court of Appeals,[65] to wit:
 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on
the amount of damages awarded may be imposed at the discretion of the court at the rate
of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or
damages except when or until the demand can be established with reasonable certainty.
Accordingly, where the demand is established with reasonable certainty, the interest shall
begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil
Code) but when such certainty cannot be so reasonably established at the time the demand
is made, the interest shall begin to run only from the date of the judgment of the court is
made (at which time the quantification of damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal interest shall, in any case, be on
the amount of finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and executory, the rate
of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be
12% per annum from such finality until its satisfaction, this interim period being deemed
to be by then an equivalent to a forbearance of credit.

For lack of sufficient showing of bad faith on the part of Barretto, we find that the CA, finally, erred in granting
Oceaneerings claim for attorneys fees, albeit in the much reduced sum of P30,000.00. In the absence of
stipulation, after all, the rule is settled that there can be no recovery of attorneys fees and expenses of litigation
other than judicial costs except in the instances enumerated under Article 2208 of the Civil Code.[66] Being the
exception rather than the rule,[67] attorneys fees are not awarded every time a party prevails in a suit,[68] in view
of the policy that no premium should be placed on the right to litigate.[69] Even when a claimant is compelled to
litigate with third persons or to incur expenses to protect his rights, still attorneys fees may not be awarded where,
as here, no sufficient showing of bad faith can be reflected in the partys persistence in a case other than an
erroneous conviction of the righteousness of his cause.[70]

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED and the assailed 12 December
2007 Decision is, accordingly, MODIFIED: (a) to GRANTOceaneerings claim for the value of its lost cargo in
the sum of P2,226,620.00 with 6% interest per annum computed from the filing of the complaint and to earn
further interest at the rate of 12% per annum from finality of the decision until full payment; (b) to REDUCE the
refund of the consideration for the Time Charter Agreement from P306,000.00 to P224,400.00, with 6% interest
per annum computed from 12 March 1998, likewise to earn further interest at the rate of 12% per annum from
finality of this decision; and, (c) to DELETE the CAs award of salvaging expenses and attorneys fees, for lack
of factual and legal basis. The rest is AFFIRMED in toto.

SO ORDERED.
G.R. No. L-37120 April 20, 1983

VICTORINO D. MAGAT, petitioner,

vs.
HON. LEO D. MEDIALDEA and SANTIAGO A. GUERRERO, respondents.

Sinesio S. Vergara for petitioner.

Eladio B. Samson for respondents.

ESCOLIN, J.:

Put to test in this petition for review on certiorari is the sufficiency of the averments contained in the complaint for alleged
breach of contract filed by petitioner Victorino D. Magat against respondent Santiago A. Guerrero in Civil Case No. 17827 of
the Court of First Instance of Rizal, presided by respondent Judge Leo D. Medialdea, now Deputy Judicial Administrator,
which complaint was dismissed for failure to state a cause of action.

The pertinent allegations in the complaint, subject of inquiry, are as follows: 1

3. That sometime in September 1972, the defendant entered into a contract with the U.S. Navy Exchange,
Subic Bay, Philippines, for the operation of a fleet of taxicabs, each taxicab to be provided with the
necessary taximeter and a radio transceiver for receiving and sending of messages from mobile taxicab to
fixed base stations within the Naval Base at Subic Bay, Philippines;

4. That Isidro Q. Aligada, acting as agent of the defendant herein conducted the necessary project studies
on how best the defendant may meet the requirements of his contract with the U.S. Navy Exchange, Subic
Bay, Philippines, and because of the experience of the plaintiff in connection with his various, contracts with
the U.S. Navy, Subic Bay, Philippines, and his goodwill already established with the Naval personnel of
Subic Bay, Philippines, especially in providing the U.S. Navy with needed materials or goods on time as
specified by the U.S. Navy, be they of local origin or imported either from the United States or from Japan,
the said Isidro Q. Aligada approached the plaintiff herein in behalf of the defendant and proposed to import
from Japan thru the plaintiff herein or thru plaintiff's Japanese business associates, all taximeters and radio
transceivers needed by the defendant in connection with his contract with the U.S. Navy Exchange, Subic
Bay, Philippines;

5. That the defendant herein and his aforesaid agent Isidro Q. Aligada were able to import from Japan with
the assistance of the plaintiff and his Japanese business associates the necessary taximeters for
defendant's taxicabs in partial fulfillment of defendant's commitments with the U.S. Navy Exchange, Subic
Bay, Philippines, the plaintiff's assistance in this matter having been given to the defendant gratis et amore;

6. That Isidro Q. Aligada, also acting as agent of the defendant, made representations with the plaintiff
herein to the effect that defendant desired to procure from Japan thru the plaintiff herein the needed radio
transceivers and to this end, Isidro Q. Aligada secured a firm offer in writing dated September 25, 1972, a
copy of which is hereto attached marked as Annex 'A' and made an integral part of this complaint, wherein
the plaintiff quoted in his offer a total price of $77,620.59 [U.S. dollars] FOB Yokohama, the goods or articles
therein offered for sale by the plaintiff to the defendant to be delivered sixty to ninety [60-90] days after
receipt of advice from the defendant of the radio frequency assigned to the defendant by the proper
authorities;

7. That the plaintiff received notice of the fact that the defendant accepted plaintiff's offer to sell to the
defendant the items specified in Annex 'A', as well as the terms and conditions of said offer, as shown by the
signed conformity of the defendant appearing on Annex 'A' which was duly delivered by the defendant's
agent to the plaintiff herein, whereupon all that the plaintiff had to do in the meantime was to await advice
from the defendant as to the radio frequency to be assigned by the proper authorities to the defendant;

8. That believing that the defendant would faithfully fulfill his contract with the plaintiff herein, considering his
signed conformity appearing in Annex 'A' hereof as well as the letter dated October 4, 1972, of his agent
aforementioned which is attached hereto and marked as Annex 'B' and made an integral part of this
complaint, and in order that plaintiff's promised delivery would not be delayed, the plaintiff herein took steps
to advise the Japanese entity entrusted with the manufacture of the items listed in Annex 'A' to the effect that
the contract between the defendant herein and the plaintiff has been perfected and that advice with regards
to radio frequency would follow as soon as same is received by the plaintiff from the defendant;

9. That in his letter dated October 6, 1972, a copy of which is hereto attached marked as Annex 'C', the
defendant advised his aforementioned agent to the effect that the U.S. Navy provided him with the radio
frequency of 34.2 MHZ [Megahertz] and defendant requested his said agent to proceed with his order placed
with the plaintiff herein, which fact was duly communicated to the plaintiff by the defendant's aforementioned
agent;

10. That by his letter dated October 7, 1972, addressed to the plaintiff by the defendant's agent, a copy of
which is hereto attached and marked as Annex 'D', defendant's agent qualified defendant's instructions
contained in his letter of October 6, 1972 [Annex 'C'] in the sense that plaintiff herein should proceed to fulfill
defendant's order only upon receipt by the plaintiff of the defendant's letter of credit;

11. That it being normal business practice in case of foreign importation that the buyer opens a letter of
credit in favor of the foreign supplier before delivery of the goods sold, the plaintiff herein awaited the
opening of such a letter of credit by the defendant;

12. That the defendant and his agent have repeatedly assured plaintiff herein of the defendant's financial
capabilities to pay for the goods ordered by him and in fact he accomplished the necessary application for a
letter of credit with his banker, but he subsequently instructed his banker not to give due course to his
application for a letter of credit and that for reasons only known to the defendant, he fails and refuses to
open the necessary letter of credit to cover payment of the goods ordered by him;

13. That it has come to the knowledge of the plaintiff herein that the defendant has been operating his
taxicabs without the required radio transceivers and when the U.S. Navy Authorities of Subic Bay,
Philippines, were pressing defendant for compliance with his commitments with respect to the installations of
radio transceivers on his taxicabs, he impliedly laid the blame for the delay upon the plaintiff herein, thus
destroying the reputation of the plaintiff herein with the said Naval Authorities of Subic Bay, Philippines, with
whom plaintiff herein transacts business;

14. That on March 27, 1973, plaintiff wrote a letter thru his counsel, copy attached marked as Annex 'E', to
ascertain from the defendant as to whether it is his intention to fulfill his part of the agreement with the
plaintiff herein or whether he desired to have the contract between them definitely cancelled, but defendant
did not even have the courtesy to answer plaintiff's demand;

15. That the defendant herein entered into a contract with the plaintiff herein as set forth in Annex 'A' without
the least intention of faithfully complying with his obligation is thereunder, but he did so only in order to
obtain the concession from the U.S. Navy Exchange, Subic Bay, Philippines, of operating a fleet of taxicabs
inside the U.S. Naval Base to his financial benefit and at the expense and prejudice of third parties such as
the plaintiff herein;

16. That in view of the defendant's failure to fulfill his contractual obligations with the plaintiff herein, the
plaintiff will suffer the following damages:

[a] As the radio transceivers ordered by the defendant are now in the hands of the plaintiff's
Japanese representative, the plaintiff will have to pay for them, thus he will have to suffer as
total loss to him the amount of P523,938.98 (converting the amount of $77,620.59 to pesos
at the rate of P6.75 to the dollar) as said radio transceivers were purposely made or
 manufactured solely for the use of the defendant herein and cannot possibly be marketed by
the plaintiff herein to the general public;

[b] The amount of P 52,393.89 or 10% of the purchase price by way of loss of expected
profits from the transaction or contract between plaintiff and the defendant;

[c] Loss of confidence in him and goodwill of the plaintiff which will result in the impairment of
his business dealings with Japanese firms, thereby resulting also in loss of possible profits in
the future which plaintiff assess at no less than P200,000.00;

[d] That in view of the defendant's bad faith in inducing plaintiff to enter into the contract with
him as set forth hereinabove, defendant should be assessed by his Honorable Court in favor
of the plaintiff the sum of P200,000.00 as moral and exemplary damages;

[e] That in view of the defendant's fault and to protect his interests, plaintiff herein is
constrained to retain the services of counsel with whom he agreed to pay by way of
attorney's fees the sum of P50,000.00".

Respondent Guerrero filed a motion to dismiss said complaint for lack of cause of action, which ground is propounded by
respondent's counsel thus: 2

... it is clear that plaintiff was merely anticipating his loss or damage which might result from the alleged
failure of defendant to comply with the terms of the alleged contract. Hence, plaintiff's right of recovery under
his cause of action is premised not on any loss or damage actually suffered by him but on a non-existing
loss or damage which he is expecting to incur in the near future. Plaintiff's right therefore under his cause of
action is not yet fixed or vested.

Inasmuch as there is no other allegation in the present Complaint wherein the same could be maintained
against defendant, the present Complaint should be dismissed for its failure to state a cause of action
against defendant.

The respondent judge, over petitioner's opposition, issued a minute order dismissing the complaint as follows:3

Acting upon the 'Motion to Dismiss' filed by the defendant, through counsel, dated June 7, 1973, as well as
the opposition thereto filed by the plaintiff, through counsel, dated June 14, 1973, for the reasons therein
alleged, this Court hereby grants said motion and, as prayed for, the complaint in the above-entitled case is
dismissed.

SO ORDERED.

Both parties are in accord with the view that when a motion to dismiss is based on the ground of lack of cause of action, the
sufficiency of the case of action can only be determined on the basis of the facts alleged in the complaint 4 ; that the facts
alleged are deemed hypothetically admitted, including those which are fairly deducible therefrom 5 ; and that, admitting the
facts as alleged, whether or not the Court can render a valid judgment against the defendant upon said facts in accordance
with the prayer in the complaint 6.

After a thorough examination of the complaint at bar, We find the test of legal sufficiency of the cause of action adequately
satisfied. In a methodical and logical sequence, the complaints recites the circumstances that led to the perfection of the
contract entered into by the parties. It further avers that while petitioner had fulfilled his part of the bargain [paragraph 8 of
the Complaint], private respondent failed to comply with his correlative obligation by refusing to open a letter of credit to
cover payment of the goods ordered by him [paragraphs 11 & 12 of the Complaint], and that consequently, petitioner
suffered not only loss of his expected profits, but moral and exemplary damages as well. From these allegations, the
essential elements of a cause of action are present, to wit: [1] the existence of a legal right to the plaintiff; [2] a correlative
duty of the defendant and [3] an act or omission of the defendant in violation of the plaintiff's right, with consequent injury or
damage to the latter for which he may maintain an action for recovery of damages or other appropriate relief. 7
Indisputably, the parties, both businessmen, entered into the aforesaid contract with the evident intention of deriving some
profits therefrom. Upon breach of the contract by either of them, the other would necessarily suffer loss of his expected
profits. Since the loss comes into being at the very moment of breach, such loss is real, "fixed and vested" and, therefore,
recoverable under the law.

Article 1170 of the Civil Code provides:

Those who in the performance of their obligation are guilty of fraud, negligence, or delay, and those who in
any manner contravene the tenor thereof are liable for damages.

The phrase "in any manner contravene the tenor" of the obligation includes any ilicit act or omission which impairs the strict
and faithful fulfillment of the obligation and every kind of defective performance. 8

The damages which the obligor is liable for includes not only the value of the loss suffered by the obligee [daño emergente]
but also the profits which the latter failed to obtain [lucro cesante] 9. If the obligor acted in good faith, he shall be liable for
those damages 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; and in case of fraud, bad faith,
malice or wanton attitude, he shall be liable for all damages which may be reasonably attributed to the non-performance of
the obligation 10.

The same is true with respect to moral and exemplary damages. The applicable legal provisions on the matter, Articles 2220
and 2232 of the Civil Code, allow the award of such damages in breaches of contract where the defendant acted in bad
faith. To Our mind, the complaint sufficiently alleges bad faith on the part of the defendant.

In fine, We hold that on the basis of the facts alleged in the complaint, the court could render a valid judgment in accordance
with the prayer thereof.

ACCORDINGLY, the questioned order of dismissal is hereby set aside and the case ordered remanded to the court of origin
for further proceedings. No costs.

SO ORDERED.
G.R. No. L-56487 October 21, 1991

REYNALDA GATCHALIAN, petitioner,

vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.

Pedro G. Peralta for petitioner.

Florentino G. Libatique for private respondent.

FELICIANO, J.:

At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's "Thames" mini
bus at a point in San Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the way, while the bus was
running along the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly heard at one part of the
bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side of the road, went off the road, turned turtle
and fell into a ditch. Several passengers, including petitioner Gatchalian, were injured. They were promptly taken to Bethany
Hospital at San Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found to have
sustained physical injuries on the leg, arm and forehead, specifically described as follows: lacerated wound, forehead;
abrasion, elbow, left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1

On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their hospitalization and medical expenses.
She also gave petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers, including
petitioner, sign an already prepared Joint Affidavit which stated, among other things:

That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while
passing through the National Highway No. 3;

That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle to the east canal of the road into a creek
causing physical injuries to us;

xxx xxx xxx

That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and
owner of the said Thames have gone to the extent of helping us to be treated upon our injuries.

xxx xxx xxx 2

(Emphasis supplied)
Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action extra contractu to recover compensatory and moral damages. She
alleged in the complaint that her injuries sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental
suffering and an inferiority complex on her part; and that as a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial
beauty and deprived her of opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic
surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees.

In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover had waived any right to institute any action
against him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973.

After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminal or civil)
that she may have had against respondent and the driver of the mini-bus.

On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim
for damages:

We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial court's disposition of the case — its dismissal.

IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is
hereby affirmed.

Without special pronouncement as to costs.

SO ORDERED. 3

In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her actual or compensatory damages as well
as moral damages.

We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit may be
quoted again:

That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and
owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied)

A waiver may not casually be

A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him. 4

attributed to a person when the terms thereof do not explicitly and clearly evidence an intent to abandon a right vested in
such person.

The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes and Susaya v. Samar
Express Transit (supra), where the Court in reading and rejecting a purported waiver said:

. . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they
signed the document Exhibit I wherein they stated that "in consideration of the expenses which said operator has
incurred in properly giving us the proper medical treatment, we hereby manifest our desire to waive any and all
claims against the operator of the Samar Express Transit."
 xxx xxx xxx

Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive
their right to claim damages from appellant for the latter's failure to comply with their contract of carriage. All that
said document proves is that they expressed a "desire" to make the waiver — which obviously is not the same as
making an actual waiver of their right. A waiver of the kind invoked by appellant must be clear and
unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) — which is not the case of the one relied upon
in this appeal. (Emphasis supplied)

If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in the
instant case cannot be regarded as a waiver cast in "clear and unequivocal" terms. Moreover, the circumstances under
which the Joint Affidavit was signed by petitioner Gatchalian need to be considered. Petitioner testified that she was still
reeling from the effects of the vehicular accident, having been in the hospital for only three days, when the purported waiver
in the form of the Joint Affidavit was presented to her for signing; that while reading the same, she experienced dizziness but
that, seeing the other passengers who had also suffered injuries sign the document, she too signed without bothering to
read the Joint Affidavit in its entirety. Considering these circumstances there appears substantial doubt whether petitioner
understood fully the import of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and
whether she actually intended thereby to waive any right of action against private respondent.

Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect of
whose safety a common carrier must exercise extraordinary diligence, we must construe any such purported waiver most
strictly against the common carrier. For a waiver to be valid and effective, it must not be contrary to law, morals, public policy
or good
customs. 5 To uphold a supposed waiver of any right to claim damages by an injured passenger, under circumstances like
those exhibited in this case, would be to dilute and weaken the standard of extraordinary diligence exacted by the law from
common carriers and hence to render that standard unenforceable. 6 We believe such a purported waiver is offensive to
public policy.

Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there was no enforceable
waiver of her right of action, should have awarded her actual or compensatory and moral damages as a matter of course.

We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed
upon a common carrier. 7 In case of death or injuries to passengers, a statutory presumption arises that the common carrier
was at fault or had acted negligently "unless it proves that it [had] observed extraordinary diligence as prescribed in Articles
1733 and 1755." 8 In fact, because of this statutory presumption, it has been held that a court need not even make an
express finding of fault or negligence on the part of the common carrier in order to hold it liable. 9 To overcome this
presumption, the common carrier must slow to the court that it had exercised extraordinary diligence to prevent the
injuries. 10 The standard of extraordinary diligence imposed upon common carriers is considerably more demanding than the
standard of ordinary diligence, i.e., the diligence of a good paterfamilias established in respect of the ordinary relations
between members of society. A common carrier is bound to carry its passengers safely" as far as human care and foresight
can provide, using the utmost diligence of a very cautious person, with due regard to all the circumstances". 11
Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records before the Court are bereft of any evidence showing that respondent had
exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt, during the trial before the court a quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the
mishap was the result of force majeure. But allegation is not proof and here again, respondent utterly failed to substantiate his defense offorce majeure. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure, the carrier must
clearly show not only that the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine Steam

the Court summed up the essential characteristics of force majeure by quoting with approval from
Navigation Company, 12

the Enciclopedia Juridica Española:

Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is
exempt from liability non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines "caso
fortuito" as 'an event that takes place by accident and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robber.

In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says: 'In legal sense and,
consequently, also in relation to contracts, a "caso fortuito" presents the following essential characteristics: (1) the
cause of the unforeseen and unexpected occurence, or of the failure of the debtor to comply with his obligation,
must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the "caso
fortuito", or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it
 impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any
participation in the aggravation of the injury resulting to the creditor.

Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of respondent common carrier.
In her direct examination, petitioner Gatchalian narrated that shortly before the vehicle went off the road and into a ditch, a
"snapping sound" was suddenly heard at one part of the bus. One of the passengers, an old woman, cried out, "What
happened?" ("Apay addan samet nadadaelen?"). The driver replied, nonchalantly, "That is only normal" ("Ugali ti makina
dayta"). The driver did not stop to check if anything had gone wrong with the bus. Moreover, the driver's reply necessarily
indicated that the same "snapping sound" had been heard in the bus on previous occasions. This could only mean that the
bus had not been checked physically or mechanically to determine what was causing the "snapping sound" which had
occurred so frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in
good operating condition, and even a modicum of concern for life and limb of passengers dictated that the bus be checked
and repaired. The obvious continued failure of respondent to look after the roadworthiness and safety of the bus, coupled
with the driver's refusal or neglect to stop the mini-bus after he had heard once again the "snapping sound" and the cry of
alarm from one of the passengers, constituted wanton disregard of the physical safety of the passengers, and hence gross
negligence on the part of respondent and his driver.

We turn to petitioner's claim for damages. The first item in that claim relates to revenue which petitioner said she failed to
realize because of the effects of the vehicular mishap. Petitioner maintains that on the day that the mini-bus went off the
road, she was supposed to confer with the district supervisor of public schools for a substitute teacher's job, a job which she
had held off and on as a "casual employee." The Court of Appeals, however, found that at the time of the accident, she was
no longer employed in a public school since, being a casual employee and not a Civil Service eligible, she had been laid off.
Her employment as a substitute teacher was occasional and episodic, contingent upon the availability of vacancies for
substitute teachers. In view of her employment status as such, the Court of Appeals held that she could not be said to have
in fact lost any employment after and by reason of the accident. 13 Such was the factual finding of the Court of Appeals, a
finding entitled to due respect from this Court. Petitioner Gatchalian has not submitted any basis for overturning this finding
of fact, and she may not be awarded damages on the basis of speculation or conjecture. 14
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter. A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished, actual injury is suffered for which actual or compensatory damages are due and
assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A scar, especially one on the face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for
restoration to her conditio ante. If the scar is relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be correspondingly modest. In Araneta, et al. vs. Areglado, et al., 15 this Court awarded actual or compensatory damages for, among other
things, the surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:

We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00
as compensation for the "permanent deformity and — something like an inferiority complex" as well as for the "pathological condition on the left side of the jaw" caused to said
plaintiff, the court below overlooked the clear evidence on record that to arrest the degenerative process taking place in the mandible and restore the injured boy to a nearly
normal condition, surgical intervention was needed, for which the doctor's charges would amount to P3,000.00, exclusive of hospitalization fees, expenses and
medicines. Furthermore, the operation, according to Dr. Diño, would probably have to be repeated in order to effectuate a complete cure, while removal of the scar on the face
obviously demanded plastic surgery.

xxx xxx xxx

The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. The damage to the jaw and the existence of
the scar in Benjamin Araneta's faceare physical facts that can not be reasoned out of existence. That the injury should be treated in order to restore him as far as possible to
his original condition is undeniable. The father's delay, or even his negligence, should not be allowed to prejudice the son who has no control over the parent's action nor
impair his right to a full indemnity.

. . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his feelings of inferiority due to
consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and further considering that a repair, however, skillfully conducted, is never
equivalent to the original state, we are of the opinion that the indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis supplied)

Upon the other hand, Dr. Fe Tayao Lasam, a witness presented as

Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00. 16

an expert by petitioner, testified that the cost would probably be between P5,000.00 to P10,000.00. 17 In view of this
testimony, and the fact that a considerable amount of time has lapsed since the mishap in 1973 which may be expected to
increase not only the cost but also very probably the difficulty of removing the scar, we consider that the amount of
P15,000.00 to cover the cost of such plastic surgery is not unreasonable.

Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may be awarded where
gross negligence on the part of the common carrier is shown. 18 Since we have earlier concluded that respondent common
carrier and his driver had been grossly negligent in connection with the bus mishap which had injured petitioner and other
passengers, and recalling the aggressive manuevers of respondent, through his wife, to get the victims to waive their right to
recover damages even as they were still hospitalized for their injuries, petitioner must be held entitled to such moral
damages. Considering the extent of pain and anxiety which petitioner must have suffered as a result of her physical injuries
including the permanent scar on her forehead, we believe that the amount of P30,000.00 would be a reasonable award.
Petitioner's claim for P1,000.00 as atttorney's fees is in fact even more modest. 19

WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instance of La Union dated 4 December 1975 are hereby
REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory damages to cover the
cost of plastic surgery for the removal of the scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to bear interest at
the legal rate of 6% per annum counting from the promulgation of this decision until full payment thereof. Costs against private respondent.

SO ORDERED.

RODOLFO N. REGALA, G.R. No. 188715

Petitioner, Present:

CARPIO MORALES, J.,

Chairperson,
- versus - BRION,
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.
FEDERICO P. CARIN,
Respondent. Promulgated:
April 6, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Assailed via this petition for review of petitioner Rodolfo N. Regala is the May 26, 2009 Decision[1] of
the Court of Appeals which affirmed with modification the May 29, 2006 Decision [2] of the Regional
Trial Court (RTC) of Las Pias City, Br. 255 in Civil Case No. LP-99-0058, ordering petitioner to pay
respondent Federico P. Carin moral and exemplary damages and attorneys fees.
 Petitioner and respondent are adjacent neighbors at Spirig Street, BF Resort Village, Las Pias
City. When petitioner decided to renovate his one storey residence by constructing a second floor, he
under the guise of merely building an extension to his residence, approached respondent sometime in
May 1998 for permission to bore a hole through a perimeter wall shared by both their respective
properties, to which respondent verbally consented on condition that petitioner would clean the area
affected by the work.

As earlier indicated, petitioners real intention was to build a second floor, in fact with a terrace atop the
dividing wall. In the course of the construction of the second floor, respondent and his
wife Marietta suffered from the dust and dirt which fell on their property. As petitioner failed to address
the problem to respondents satisfaction, respondent filed a letter-complaint[3] with the Office of the City
Engineer and Building Official of Las Pias City on June 9, 1998.

In his letter-complaint, respondent related that, despite the lack of a building permit for the
construction of a second floor, petitioner had demolished the dividing wall, failed to clean the debris
falling therefrom, allowed his laborers to come in and out of his (respondents) property without
permission by simply jumping over the wall, and trampled on his vegetable garden; and that despite his
protestations, petitioner persisted in proceeding with the construction, he claiming to be the owner of
the perimeter wall.

Several sumbongs[4] (complaints) were soon lodged by respondent before the Office of Barangay
Talon Dos against petitioner for encroachment, rampant invasion of privacy and damages arising from
the construction, and for illegal construction of scaffoldings inside his (respondents) property.
As no satisfactory agreement was reached at the last barangay conciliation proceedings in December
1998, and petitioner having continued the construction work despite issuance of several stop-work
notices from the City Engineers Office for lack of building permit, respondent filed on March 1999 a
complaint[5] for damages against petitioner before the RTC of Las Pias City.

In his complaint, respondent alleged in the main that, instead of boring just one hole as agreed
upon, petitioner demolished the whole length of the wall from top to bottom into five parts for the
purpose of constructing a second floor with terrace; and that debris and dust piled up on respondents
property ruining his garden and forcing him to, among other things, shut some of the windows of his
house. Respondent thus prayed for the award of moral and exemplary damages.

Petitioner, denying respondents allegations, claimed in his Answer[6] that he was the sole and
exclusive owner of the wall referred to as a perimeter wall, the same having been built within the
confines of his property and being part and parcel of the house and lot package he purchased from the
developer, BF Homes, Inc., in 1981; that the issue of its ownership has never been raised by respondent
or his predecessor; and that securing the consent of respondent and his neighbors was a mere formality
in compliance with the requirements of the Building Official to facilitate the issuance of a building
permit, hence, it should not be taken to mean that he (petitioner) acknowledges respondent to be a co-
owner of the wall. He added that he eventually secured the requisite building permit [7] in March 1999
and had duly paid the administrative fine.[8]

Further, petitioner, denying that a demolition of the whole length of the wall took place, claimed
that he and his contractors laborers had been diligently cleaning respondents area after every days work
until respondent arrogantly demanded the dismantling of the scaffoldings, and barred the workforce
from, and threatening to shoot anyone entering the premises; and that the complaint was instituted by
respondent as leverage to force him to withdraw the criminal case for slander and light threats [9] which
he had earlier filed against respondent for uttering threats and obscenities against him in connection with
the construction work.

At the trial, after respondent and his wife confirmed the material allegations of the complaint,
petitioner took the witness stand and presented his witnesses.

Architect Antonio Punzalan III[10] testified that he installed GI sheets to prevent debris from
falling onto respondents property and had instructed his workers to clean the affected area after every
work day at 5:00 p.m., but they were later barred by respondent from entering his property.

Engineer Crisostomo Chan[11] from the Office of the Building Official of Las Pias City testified,
among other things, on the circumstances surrounding the complaint for illegal construction filed by
respondent and that a building permit was eventually issued to petitioner on March 15, 1999.

Engineer Sonia Haduca[12] declared that upon a joint survey conducted on the properties of both
petitioner and respondent in December 1998 to determine their exact boundaries, she found an
encroachment by petitioner of six centimeters at the lower portion of the existing wall negligible, since
the Land Survey Law permits an encroachment of up to ten centimeters.
By Decision of May 29, 2006, Branch 255 of the Las Pias City RTC rendered judgment in favor
of respondent whom it awarded moral damages in the sum of P100,000, exemplary damages
of P100,000 and attorneys fees of P50,000 plus costs of suit.[13]

In finding for respondent, the trial court declared that, apart from the fact that petitioner knowingly
commenced the renovation of his house without the requisite building permit from the City Engineers
Office, he misrepresented to respondent his true intent of introducing renovations. For, it found that
instead of just boring a hole in the perimeter wall as originally proposed, petitioner divided the wall into
several sections to serve as a foundation for his firewall (which ended up higher than the perimeter wall)
and the second storey of his house.
 The trial court further declared that respondent and his family had thus to contend with the noise,
dust and debris occasioned by the construction, which petitioner and his work crew failed to address
despite respondents protestations, by refusing to clean the mess or install the necessary safety devices.

Applying Article 2176 of the Civil Code on quasi-delicts, the trial court ruled that petitioner was
at fault and negligent for failing to undertake sufficient safety measures to prevent inconvenience and
damage to respondent to thus entitle respondent to moral and exemplary damages.
On appeal by petitioner, the Court of Appeals affirmed the trial courts decision with modification
by reducing the award of moral and exemplary damages to P50,000 and P25,000, respectively. The
appellate court anchored its affirmance on Article 19 of the New Civil Code which directs every person
to, in the exercise of his rights and in the performance of his duties, act with justice, and observe honesty
and good faith.
By Resolution[14] of July 10, 2009, the appellate court denied petitioners motion for
reconsideration as well as respondents prayer in his Comment that the original awards made by the trial
court be restored.

Hence, petitioners present petition faulting the appellate court in

Affirming with modification the decision of the trial court.considering the absence of
any competent proof to warrant the grant of moral and exemplary damages as well as
attorneys fees.[15] (underscoring supplied)

Petitioner maintains that since moral and exemplary damages are compensatory in nature, being
meant neither to punish nor enrich, the claimant must establish that not only did he sustain injury but
also that the other party had acted in bad faith or was motivated by ill will. To petitioner, respondents
failed to discharge this burden. He adds that the trial court did not delve into whether petitioners
renovations were the primary cause of respondents claimed injuries, viz violation of privacy, sleepless
nights and mental anguish, among other things, as it instead focused on the lack of a building permit as
basis for the awards.

Rebutting the testimony of respondents wife as to the alleged unauthorized intrusion of petitioners
workers into respondents property in order to erect scaffoldings, petitioner points out that such an
undertaking would take a considerable length of time and could not have gone unnoticed had consent
not been given by respondent.

Moreover, petitioner posits, if consent had truly been withheld, there was nothing to prevent
respondent from dismantling or immediately removing the offending structures a course of action he did
not even attempt.
 In his Comment[16] to the petition, respondent quotes heavily from the appellate and trial courts
findings that fault and negligence attended petitioners renovation, thus justifying the award of damages.
He goes on to reiterate his plea that the awards given by the trial court in its decision of May 29,
2006 should be reinstated.

The petition is partly impressed with merit.

The trial courts award of moral and exemplary damages, as affirmed by the appellate court, was
premised on the damage and suffering sustained by respondent arising from quasi-delict under Article
2176[17] of the Civil Code. Thus the trial court explained:

Indeed, there was fault or negligence on the part of the defendant when he did not
provide sufficient safety measures to prevent causing a lot of inconvenience and disturbance
to the plaintiff and his family. The evidence presented by the plaintiff regarding the dirt or
debris, as well as the absence of devices or safety measures to prevent the same from falling
inside plaintiffs property, were duly established. It did not help the cause of the defendant
that he made a lot of misrepresentations regarding the renovations on his house and he did
not initially have a building permit for the same. In fact, it was only after the construction
works were completed that the said permit was issued and upon payment of an administrative
fine by the defendant.[18]

In prayers for moral damages, however, recovery is more an exception rather than the rule. Moral
damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar harm unjustly caused to a person. To be entitled to such an award, the claimant
must satisfactorily prove that he has suffered damages and that the injury causing it has sprung from any
of the cases listed in Articles 2219[19] and 2220[20] of the Civil Code. Moreover, the damages must be
shown to be the proximate result of a wrongful act or omission. The claimant must thus establish the
factual basis of the damages and its causal tie with the acts of the defendant.

In fine, an award of moral damages calls for the presentation of 1) evidence of besmirched
reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or
omission factually established; 3) proof that the wrongful act or omission of the defendant is the
proximate cause of the damages sustained by the claimant; and 4) the proof that the act is predicated on
any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.[21]

In the present case, respondent failed to establish by clear and convincing evidence that the
injuries he sustained were the proximate effect of petitioners act or omission. It thus becomes necessary
to instead look into the manner by which petitioner carried out his renovations to determine whether this
was directly responsible for any distress respondent may have suffered since the law requires that
a wrongful or illegal act or omission must have preceded the damages sustained by the claimant.

It bears noting that petitioner was engaged in the lawful exercise of his property rights to introduce
renovations to his abode. While he initially did not have a building permit and may have misrepresented
his real intent when he initially sought respondents consent, the lack of the permit was inconsequential
since it only rendered petitioner liable to administrative sanctions or penalties.

The testimony of petitioner and his witnesses, specifically Architect Punzalan, demonstrates that
they had actually taken measures to prevent, or at the very least, minimize the damage to respondents
property occasioned by the construction work. Architect Punzalan details how upon reaching an
agreement with petitioner for the construction of the second floor, he (Punzalan) surveyed petitioners
property based on the Transfer Certificate of Title (TCT) and Tax Declarations [22] and found that the
perimeter wall was within the confines of petitioners property; that he, together with petitioner, secured
the consent of the neighbors (including respondent) prior to the start of the renovation as reflected in a
Neighbors Consent[23] dated June 12, 1998; before the construction began, he undertook measures to
prevent debris from falling into respondents property such as the installation of GI sheet strainers, the
construction of scaffoldings[24] on respondents property, the instructions to his workers to clean the area
before leaving at 5:00 p.m;[25] and that the workers conducted daily clean-up of respondents property
with his consent, until animosity developed between the parties.[26]

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. [27] While the Court
harbors no doubt that the incidents which gave rise to this dispute have brought anxiety and anguish to
respondent, it is unconvinced that the damage inflicted upon respondents property was malicious or
willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code.

Necessarily, the Court is not inclined to award exemplary damages.[28]

Petitioner, however, cannot steer clear from any liability whatsoever. Respondent and his familys
rights to the peaceful enjoyment of their property have, at the very least, been inconvenienced from the
incident borne of petitioners construction work. Any pecuniary loss or damage suffered by respondent
cannot be established as the records are bereft of any factual evidence to establish the same. Nominal
damages may thus be adjudicated in order that a right of the plaintiff, respondent herein, which has been
violated or invaded by the defendant, petitioner herein, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by him.[29]
 WHEREFORE, the petition is GRANTED. The May 26, 2009 Decision of the Court of Appeals
is VACATED. The Court orders petitioner to pay respondent the sum of P25,000 as nominal damages.

No costs.

SO ORDERED.

[G.R. No. 130030. June 25, 1999]

EXPERTRAVEL & TOURS, INC., petitioner, vs. THE HON. COURT OF APPEALS and
RICARDO LO, respondents.

DECISION
VITUG, J.:

Petitioner, Expertravel and Tours, Inc., seeks in the instant petition for review on certiorari a modification of the
decision, dated 20 March 1997, of the Court of Appeals affirming in toto the 07th November 1994 judgment of the
Regional Trial Court (Branch 5) of Manila, the dispositive portion of which reads:

"WHEREFORE, in view of all the foregoing, judgment is rendered declaring the instant suit DISMISSED,
and hereby orders the plaintiff to pay defendant Ricardo Lo moral damages in the amount of P30,000.00;
attorney's fees in the amount of P10,000.00, and to pay the costs of the suit.

"No pronouncement as to other damages for lack of evidence to warrant the same."[1]

The factual and case settings of the controversy are culled from the pleadings on record and the assailed decision of
the appellate court and that of the court a quo.
On 07 October 1987, Expertravel & Tours, Inc., ("Expertravel"), a domestic corporation engaged in the travel agency
business, issued to private respondent Ricardo Lo four round-trip plane tickets for Hongkong, together with hotel
accommodations and transfers, for a total cost of P39,677.20. Alleging that Lo had failed to pay the amount due,
Expertravel caused several demands to be made. Since the demands were ignored by Lo, Expertravel filed a court
complaint for recovery of the amount claimed plus damages.
Respondent Lo explained, in his answer, that his account with Expertravel had already been fully paid. The
outstanding account was remitted to Expertravel through its then Chairperson, Ms. Ma. Rocio de Vega, who was
theretofore authorized to deal with the clients of Expertravel. The payment was evidenced by a Monte de Piedad Check
No. 291559, dated 06 October 1987, for P42,175.20 for which Ms. de Vega, in turn, issued City Trust Check No. 417920
in favor of Expertravel for the amount of P50,000.00, with the notation "placement advance for Ricardo Lo, etc." Per its
own invoice, Expertravel received the sum on 10 October 1987.
The trial court, affirmed by the appellate court, held that the payment made by Lo was valid and binding on petitioner
Expertravel. Even on the assumption that Ms. de Vega had not been specifically authorized by Expertravel, both courts
said, the fact that the amount "delivered to the latter remain(ed) in its possession up to the present, mean(t) that the amount
redounded to the benefit of petitioner Expertravel, in view of the second paragraph of Article 1241 of the Civil Code to
the effect that payment made to a third person shall also be valid in so far as it has redounded to the benefit of the creditor.
In this recourse, petitioner confines itself to the following related legal issues; viz:

"I. Can moral damages be recovered in a clearly unfounded suit?

"II. Can moral damages be awarded for negligence or quasi-delict that did not result to physical injury to
the offended party?"[2]

There is merit in the petition.

Moral damages are not punitive in nature but are designed to compensate[3] 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 to a person. Although incapable of pecuniary computation, moral
damages, nevertheless, must somehow be proportional to and in approximation of the suffering inflicted.[4] Such damages,
to be recoverable, must be the proximate result of a wrongful act or omission the factual basis for which is satisfactorily
established by the aggrieved party.[5] An award of moral damages would require certain conditions to be met; to
wit: (1) First, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant;
(2) second, there must be a culpable act or omission factually established; (3) third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; and (4) fourth, the award of damages is
predicated on any of the cases stated in Article 2219.[6] Under the provisions of this law, in culpa contractual or breach
of contract, moral damages may be recovered when the defendant acted in bad faith or was guilty of gross negligence
(amounting to bad faith) or in wanton disregard of his contractual obligation and, exceptionally, when the act of breach
of contract itself is constitutive of tort resulting in physical injuries.[7] By special rule in Article 1764, in relation to Article
2206, of the Civil Code, moral damages may also be awarded in case the death of a passenger results from a breach of
carriage. In culpa aquiliana, or quasi-delict, (a) when an act or omission causes physical injuries, or (b) where the
defendant is guilty of intentional tort,[8] moral damages may aptly be recovered. This rule also applies, as aforestated, to
contracts when breached by tort. In culpa criminal, moral damages could be lawfully due when the accused is found
guilty of physical injuries, lascivious acts, adultery or concubinage, illegal or arbitrary detention, illegal arrest, illegal
search, or defamation. Malicious prosecution can also give rise to a claim for moral damages. The term "analogous cases,"
referred to in Article 2219, following the ejusdem generis rule, must be held similar to those expressly enumerated by the
law.[9]
Although the institution of a clearly unfounded civil suit can at times be a legal justification for an award of attorney's
fees,[10] such filing, however, has almost invariably been held not to be a ground for an award of moral
damages.[11] The rationale for the rule is that the law could not have meant to impose a penalty on the right to litigate. The
anguish suffered by a person for having been made a defendant in a civil suit would be no different from the usual worry
and anxiety suffered by anyone who is haled to court, a situation that cannot by itself be a cogent reason for the award of
moral damages.[12] If the rule were otherwise, then moral damages must every time be awarded in favor of the prevailing
defendant against an unsuccessful plaintiff.[13]
The Court confirms, once again, the foregoing rules.
WHEREFORE, the petition is GRANTED and the award of moral damages to respondent Ricardo Lo under the
assailed decision is DELETED. In its other aspects, the appealed decision shall remain undisturbed. No costs.
SO ORDERED.
 [G.R. No. 99301. March 13, 1997]

VICTOR KIERULF, LUCILA H. KIERULF and PORFIRIO LEGASPI, petitioners, vs. THE
COURT OF APPEALS and PANTRANCO NORTH EXPRESS,
INCORPORATED, respondents.

[G.R. No. 99343. March 13, 1997]

PANTRANCO NORTH EXPRESS, INCORPORATED, petitioner, vs. VICTOR KIERULF,

LUCILA H. KIERULF and PORFIRIO LEGASPI, respondents.

DECISION
PANGANIBAN, J.:

How much moral, exemplary and actual damages are victims of vehicular accidents entitled
to?
In G.R. No. 99301, the victims of the vehicular mishap pray for an increase in the award of
damages, over and above those granted by the appellate court. In this case, the husband of the
victim of the vehicular accident claims compensation/damages for the loss of his right to marital
consortium which, according to him, has been diminished due to the disfigurement suffered by his
wife. In G.R. No. 99343, the transport company, which owned the bus that collided with the victims'
pickup truck, asks for exoneration by invoking an alleged fortuitous event as the cause of the
mishap.
Petitioners in both cases assail the Decision, dated March 13, 1991, in CA-GR CV No. 23361
[1]

of the Court of Appeals, Sixth Division ordering the following:

[2] [3]

"For reasons indicated and in the light of the law and jurisprudence applicable to the case at bar,
the judgment of the trial court is hereby modified as follows:

Under the first cause of action, the defendant is hereby ordered to pay Lucila H. Kierulf the following:

(1) For actual damages incurred for hospitalization, medical case (sic) and doctor's fees,
the sum of P241,861.81;

(2) For moral damages the sum of P200,000.00;

(3) For exemplary damages the amount of P100,000.00.

 Under the second cause of action, to pay Victor Kierulf, by way of indemnification damage to the
Isuzu Carry All with plate No. UV PGS 798, the amount of P96,825.15.

Under the third cause of action, to pay Porfirio Legaspi the following:

(1) For moral damages in the amount of P25,000.00;

(2) To reimburse the plaintiff the amount of P6,328.19 for actual damages incurred in the
treatment and hospitalization of the driver Porfirio Legaspi.

The defendant is further ordered to pay the amount of P50,000.00 as fair and reasonable attorney's
fees.
And to pay the costs of suit."
Respondent Court of Appeals modified the decision of the Regional Trial Court of Quezon City,
Branch 92, rendered on May 24, 1989 in Civil Case No. Q-50732 for damages. The dispositive
[4]

portion of the said decision is quoted below: [5]

"WHEREFORE, in view of the foregoing, judgment is hereby rendered against the defendant,
ordering Pantranco to pay:

Under the First Cause of Action

1. In favor of plaintiff Lucila H. Kierulf actual damages in the amount on ONE

HUNDRED SEVENTY FOUR THOUSAND ONE HUNDRED and 77/100
(P174,100.77) PESOS;
2. To pay said plaintiff moral damages in the amount of ONE HUNDRED
THOUSAND and 00/100 (P100,000.00) PESOS;
3. To pay exemplary damages in the amount of TEN THOUSAND and 00/100
(P10,000.00) PESOS.
Under the Second Cause of Action
1. To pay plaintiff Victor Kierulf the amount of NINETY SIX THOUSAND EIGHT
HUNDRED TWENTY FIVE and 15/100 (P96,825.15) PESOS by way of
indemnification for the damages to the Isuzu Carry All with plate No. UV PGS 796
registered in his name.
Under the Third Cause of Action
1. To pay the plaintiff spouses by way of reimbursement for actual damages incurred
for the treatment of injuries sustained by their driver Porfirio Legaspi in the amount
of SIX THOUSAND THREE HUNDRED TWENTY EIGHT and 19/100
(P6,328.19) PESOS; and
2. To pay plaintiff Porfirio Legaspi moral damages in the amount of TEN THOUSAND
and 00/100 (P10,000.00) PESOS.
 Defendant is further ordered to pay the amount of P25,000.00 for and as attorney's fees, and
to pay costs.
All other claims and counterclaims are dismissed."

The Facts

The following may be culled from the undisputed factual findings of the trial court and
Respondent Court of Appeals:

The initial investigation conducted by Pfc. D.O. Cornelio disclosed that at about 7:45 p.m. of 28 February
1987, the Pantranco bus, bearing plate number AVE-845 (TB PIL 86), was traveling along Epifanio de los
Santos Avenue (EDSA) from Congressional Avenue towards Clover Leaf, Balintawak. Before it reached
the corner of Oliveros Drive, the driver lost control of the bus, causing it to swerve to the left, and then to
fly over the center island occupying the east-bound lane of EDSA. The front of the bus bumped the front
portion of an Isuzu pickup driven by Legaspi, which was moving along Congressional Avenue heading
towards Roosevelt Avenue. As a result, the points of contact of both vehicles were damaged and physical
injuries were inflicted on Legaspi and his passenger Lucila Kierulf, both of whom were treated at the
Quezon City General Hospital. The bus also hit and injured a pedestrian who was then crossing EDSA.

Despite the impact, said bus continued to move forward and its front portion rammed against a Caltex
gasoline station, damaging its building and gasoline dispensing equipment.

As a consequence of the incident, Lucila suffered injuries, as stated in the medical report of the
[6]

examining physician, Dr. Pedro P. Solis of the Quezon City General Hospital. The injuries sustained by
Lucila required major surgeries like "tracheotomy, open reduction, mandibular fracture, intermaxillary
repair of multiple laceration" and prolonged treatment by specialists. Per medical report of Dr. Alex L.
Castillo, Legaspi also suffered injuries.
[7]

The front portion of the pickup truck, owned by Spouses Kierulf, bearing plate number UV PGS 798, was
smashed to pieces. The cost of repair was estimated at P107,583.50.

Pantranco, in its petition, adds that on said day, the abovementioned bus was driven by Jose
[8]

Malanum. While cruising along EDSA, a used engine differential accidentally and suddenly
dropped from a junk truck in front of the bus. Said differential hit the underchassis of the bus,
throwing Malanum off his seat and making him lose control of said bus. The bus swerved to the
left, hit the center island, and bumped the pickup of the spouses.

The Issues

Spouses Kierulf and their driver Legaspi raise the following assignment of errors in this
appeal: [9]

"A
 The respondent court of appeals erred in awarding only P200,000.00 and P25,000.00 as and for
moral damages for the petitioners Kierulf and Legaspi respectively when it should at least have
been P1,000,000.00 and P100,000.00 respectively.
B

The respondent court of appeals erred in awarding only P100,000.00 to the petitioners Kierulf and
nothing to petitioner Legaspi as and for exemplary damages when it should have at least
been P500,000.00 and P50,000.00 respectively.
C
The respondent court of appeals erred in not awarding any amount for the lost income due to the
petitioner Lucila H. Kierulf.
D

The respondent court of appeals erred in not awarding the amount of P107,583.50 for the damages
sustained by the Isuzu carry-all pick-up truck.
E

The respondent court of appeals erred in not awarding any legal interest on the sums awarded."
On the other hand, Pantranco raises the following assignment of errors: [10]

4.1 The Honorable Court of Appeals erred in holding that the driver of Pantranco was negligent;
4.2 The Honorable Court of Appeals erred in holding that the proximate cause of the accident was
the negligence of Pantranco and not a fortuitous event; and
4.2 (sic) The Honorable Court of Appeals erred in awarding excessive damages."
In sum, Spouses Kierulf and Legaspi argue that the damages awarded were inadequate while
Pantranco counters that they were astronomical, bloated and not duly proved. [11]

The Court's Ruling

First Issue: Negligence and Proximate Cause Are Factual Issues

Even on appeal, Pantranco insists that its driver was not negligent and that the mishap was
due to a fortuitous event. February 28, 1987, the date of the incident, was a Saturday; hence,
driving at the speed of 40-50 kilometers per hour (kph) was prudent. It contends that the proximate
cause was the accidental dropping of a used engine differential by a junk truck immediately ahead
of the bus.
[12]

As to what really caused the bus to careen to the opposite lane of EDSA and collide with the
pickup truck driven by Legaspi is a factual issue which this Court cannot pass upon. As a rule, the
jurisdiction of this Court is limited to the review of errors of law allegedly committed by the
appellate court. This Court is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below. [13]
 Although the Court may review factual issues in some instances, the case at bar does not
[14]

fall under any one of them. The fact that there is no conflict between the findings of the trial court
and respondent Court bolsters our position that a review of the facts found by respondent Court
is not necessary. There being no conflict between the findings of the Court of Appeals and the
[15]

trial court that gross negligence was the real cause of the collision, we see no reason to digress
from the standard rule.
We quote with concurrence the factual findings of the appellate and trial courts, showing that
the accident was, contrary to the belief of Pantranco, the result of the gross negligence of its driver.
To wit:[16]

"The vehicular accident was certainly not due to a fortuitous event. We agree with the trial court's
findings that the proximate cause was the negligence of the defendant's driver, such as: (1)
Driving at that part of EDSA at 7:45 P.M. from Congressional Avenue towards Clover Leaf
overpass in the direction of Balintawak at 40-50 kph is certainly not a manifestation of good
driving habit of a careful and prudent man exercising the extraordinary diligence required by
law. Traffic in that place and at that time of the day is always heavy. (2) Losing control of the
wheel in such a place crowded with moving vehicles, jumping over the island which separates the
East bound from the West bound lane of EDSA indicate that the defendant's bus was traveling at a
speed limit beyond what a prudent and careful driver is expected of, if such driver were exercising
due diligence required by law. (3) Finally, crossing over the island and traversing the opposite
lane and hitting an oncoming vehicle with such force as to smash the front of such vehicle and
finally being forced to stop by bumping against a Caltex service station -- all show not only
negligence, but recklessness of the defendant's driver. (4) If defendant's driver was not driving
fast, was not recklessly negligent and had exercised due care and prudence, with due respect to
human life and to others travelling in the same place, the driver could have stopped the bus the
moment it crossed the island, and avoided crossing over to the other lane and bumping against
vehicles travelling in opposite direction. The defendant's driver did not take any evasive action
and utterly failed to adopt any measure to avoid injuries and damage to others because he 'lost
control of the bus', which was like a juggernaut, let loose in a big crowd, smashing everything on
its path."

Second Issue: Moral Damages

Complainants aver that the moral damages awarded by Respondent Court are "clearly and
woefully not enough." The established guideline in awarding moral damages takes into
consideration several factors, some of which are the social and financial standing of the injured
parties and their wounded moral feelings and personal pride. The Kierulf spouses add that the
[17] [18]

Respondent Court should have considered another factor: the loss of their conjugal fellowship and
the impairment or destruction of their sexual life. [19]

The spouses aver that the disfigurement of Lucila's physical appearance cannot but affect their
marital right to "consortium" which would have remained normal were it not for the accident. Thus
the moral damages awarded in favor of Lucila should be increased to P1,000,000.00, not only for
Lucila but also for her husband Victor who also suffered "psychologically."A California
case, Rodriguez vs. Bethlehem Steel Corporation, is cited as authority for the claim of damages
[20]

by reason of loss of marital consortium, i.e. loss of conjugal fellowship and sexual relations.
[21]

Pantranco rebuts that Victor's claim of moral damages on alleged loss of consortium is without
legal basis. Article 2219 of the Civil Code provides that only the person suffering the injury may
claim moral damages. Additionally, no evidence was adduced to show that the consortium had
indeed been impaired and the Court cannot presume that marital relations disappeared with the
accident.[22]

The Courts notes that the Rodriguez case clearly reversed the original common law view first
enunciated in the case of Deshotel vs. Atchison, that a wife could not recover for the loss of her
[23]

husband's services by the act of a third party. Rodriguez ruled that when a person is injured to the
extent that he/she is no longer capable of giving love, affection, comfort and sexual relations to
his or her spouse, that spouse has suffered a direct and real personal loss. The loss is immediate
and consequential rather than remote and unforeseeable; it is personal to the spouse and
separate and distinct from that of the injured person.
Rodriguez involved a couple in their early 20s, who were married for only 16 months and full
of dreams of building a family of their own, when the husband was struck and almost paralyzed
by a falling 600-pound pipe. The wife testified how her life had deteriorated because her husband
became a lifelong invalid, confined to the home, bedridden and in constant need of assistance for
his bodily functions; and how her social, recreational and sexual life had been severely
restricted. It also deprived her of the chance to bear their children. As a constant witness to her
husband's pain, mental anguish and frustration, she was always nervous, tense, depressed and
had trouble sleeping, eating and concentrating. Thus, the California court awarded her damages
for loss of consortium.
Whether Rodriguez may be cited as authority to support the award of moral damages to Victor
and/or Lucila Kierulf for "loss of consortium," however, cannot be properly considered in this case.
Victor's claim for deprivation of his right to consortium, although argued before Respondent
Court, is not supported by the evidence on record. His wife might have been badly disfigured, but
he had not testified that, in consequence thereof, his right to marital consortium was
affected. Clearly, Victor (and for that matter, Lucila) had failed to make out a case for loss of
consortium, unlike the Rodriguez spouse. Again, we emphasize that this claim is factual in origin
and must find basis not only in the evidence presented but also in the findings of the Respondent
Court. For lack of factual basis, such claim cannot be ruled upon by this Court at this time.

Third Issue: No Consideration of Social and Financial Standing in this Case

The social and financial standing of Lucila cannot be considered in awarding moral
damages. The factual circumstances prior to the accident show that no "rude and rough"
reception, no "menacing attitude," no "supercilious manner," no "abusive language and highly
scornful reference" was given her. The social and financial standing of a claimant of moral
damages may be considered in awarding moral damages only if he or she was subjected to
contemptuous conduct despite the offender's knowledge of his or her social and financial
standing.[24]
 Be that as it may, it is still proper to award moral damages to Petitioner Lucila for her physical
sufferings, mental anguish, fright, serious anxiety and wounded feelings. She sustained multiple
injuries on the scalp, limbs and ribs. She lost all her teeth. She had to undergo several corrective
operations and treatments. Despite treatment and surgery, her chin was still numb and thick. She
felt that she has not fully recovered from her injuries. She even had to undergo a second operation
on her gums for her dentures to fit. She suffered sleepless nights and shock as a consequence of
the vehicular accident. In this light and considering further the length of time spent in prosecuting
[25]

the complaint and this appeal, we find the sum of P400,000.00 as moral damages for Petitioner
Lucila to be fair and just under the circumstances.

Fourth Issue: Exemplary Damages

Complainants also pray for an increase of exemplary damages to P500,000.00

and P50,000.00 for Spouses Kierulf and Legaspi, respectively. This prayer is based on the
pronouncement of this Court in Batangas Transportation Company vs. Caguimbal that "it is high
[26]

time to impress effectively upon public utility operators the nature and extent of their responsibility
in respect of the safety of their passengers and their duty to exercise greater care in the selection
of drivers and conductors x x x."
Pantranco opposes this, for under Article 2231 of the Civil Code, "exemplary damages may
be granted if the defendant acted with gross negligence." And allegedly, gross negligence is sorely
lacking in the instant case.
Exemplary damages are designed to permit the courts to mould behavior that has socially
deleterious consequences, and its imposition is required by public policy to suppress the wanton
acts of an offender. However, it cannot be recovered as a matter of right. It is based entirely on
[27]

the discretion of the court. Jurisprudence sets certain requirements before exemplary damages
[28]

may be awarded, to wit: [29]

"(1) (T)hey may be imposed by way of example or correction only in addition, among others,
to compensatory damages, and cannot be recovered as a matter of right, their determination
depending upon the amount of compensatory damages that may be awarded to the claimant;
(2) the claimant must first establish his right to moral, temporate, liquidated or compensatory
damages; and
(3) the wrongful act must be accompanied by bad faith, and the award would be allowed only
if the guilty party acted in a wanton, fraudulent, reckless, oppressive or malevolent manner."
The claim of Lucila has been favorably considered in view of the finding of gross negligence
by Respondent Court on the part of Pantranco. This is made clear by Respondent Court in granting
Lucila's claim of exemplary damages: [30]

"(P)ublic utility operators like the defendant, have made a mockery of our laws, rules and
regulations governing operations of motor vehicles and have ignored either deliberately or through
negligent disregard of their duties to exercise extraordinary degree of diligence for the safety of
the travelling public and their passengers. x x x ."
 To give teeth to this warning, the exemplary damages awarded to Petitioner Lucila is increased
to P200,000.00. The fact of gross negligence duly proven, we believe that Legaspi, being also a
victim of gross negligence, should also receive exemplary damages. Under the facts proven, the
Court awards him P25,000 as exemplary damages.

Fifth Issue: Loss of Earnings as a Component of Damages

Lost income in the amount of P16,500.00 is also claimed by Legaspi stating that his "whole
future has been jeopardized." This, in turn, is not rebutted by Pantranco.
[31]

It should be noted that Respondent Court already considered this when it stated that the award
of P25,000.00 included compensation for "mental anguish and emotional strain of not earning
anything with a family to support." Moral damages, though incapable of pecuniary estimation, are
in the category of an award designed to compensate the claimant for actual injury and are not
meant to enrich complainant at the expense of defendant. [32]

We find, however, the claim of Legaspi to be duly substantiated. Pantranco failed to rebut the
claim of Porfirio that he had been incapacitated for ten (10) months and that during said period he
did not have any income. Considering that, prior to the accident, he was employed as a driver and
was earning P1,650.00 a month, his claim for P16,500.00 as compensation for loss of earning
capacity for said period is amply supported by the records and is demandable under Article 2205
[33]

of the Civil Code.

[34]

Complainants contend that Lucila is also entitled to damages for "loss or impairment of earning
capacity in cases of temporary or permanent personal injury" under Article 2205 of the Civil
Code. Notably, both the trial court and public respondent denied this prayer because of her failure
to produce her income tax returns for the years 1985 and 1986, notwithstanding the production of
her 1983 and 1984 income tax returns.
Pantranco opposes the above claim for loss of earning capacity on the ground that there is no
proof "that for the two years immediately preceding the accident Lucila was indeed deriving income
from some source which was cut off by the accident." [35]

We agree with the findings of Respondent Court that Lucila's claim of loss of earning capacity
has not been duly proven. The alleged loss must be established by factual evidence for it partakes
of actual damages. A party is entitled to adequate compensation for such pecuniary loss actually
suffered and duly proved. Such damages, to be recoverable, must not only be capable of proof,
but must actually be shown with a reasonable degree of certainty. We have emphasized that these
damages cannot be presumed, and courts in making an award must point out specific facts which
can serve as basis for measuring whatever compensatory or actual damages are borne. Mere [36]

proof of Lucila's earnings consisting of her 1983 and 1984 income tax returns would not suffice to
prove earnings for the years 1985 and 1986. The incident happened on February 28, 1987. If
indeed Lucila had been earning P50,000.00 every month prior to the accident, as she alleged,
there are evidentiary proofs for such earnings other than income tax returns such as, but not
limited to, payroll receipts, payments to the SSS, or withholding tax paid every month. Sad to say,
these other proofs have not been presented, and we cannot presume that they exist on the
strength of the word of Lucila alone.
 Sixth Issue: Reduction of Actual Damages on the Pickup Based on an Estimate

Complainants contend that the reduction of 10% from the written estimate of the cost of repairs
by the trial court is pure speculation. Pantranco opposes this by pointing out that judicial notice
[37]

is made by respondent Court of the propensity of motor repair shops to exaggerate their
estimates. [38]

An estimate, as it is categorized, is not an actual expense incurred or to be incurred in the

repair. The reduction made by respondent court is reasonable considering that in this instance
such estimate was secured by the complainants themselves.

Epilogue

This Court cannot remind the bench and the bar often enough that in order that moral damages
may be awarded, there must be pleading and proof of moral suffering, mental anguish, fright and
the like. While 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, it is nevertheless
[39]

essential that the claimant should satisfactorily show the existence of the factual basis of
damages and its causal connection to defendant's acts. This is so because moral damages,
[40]

though incapable of pecuniary estimation, are in the category of an award designed to compensate
the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. In Francisco[41]

vs. GSIS, the Court held that there must be clear testimony on the anguish and other forms of
[42]

mental suffering. Thus, if the plaintiff fails to take the witness stand and testify as to his/her social
humiliation, wounded feelings and anxiety, moral damages cannot be awarded. In Cocoland
Development Corporation vs. National Labor Relations Commission, the Court held that
[43]

"additional facts must be pleaded and proven to warrant the grant of moral damages under the
Civil Code, these being, x x x social humiliation, wounded feelings, grave anxiety, etc., that
resulted therefrom."
Moral damages are awarded to enable the injured party to obtain means, diversions or
amusements that will serve to alleviate the moral suffering he/she has undergone, by reason ofthe
defendant's culpable action. Its award is aimed at restoration, as much as possible, of the
[44]

spiritual status quo ante; thus, it must be proportionate to the suffering inflicted. Since each case
[45]

must be governed by its own peculiar circumstances, there is no hard and fast rule in determining
the proper amount. The yardstick should be that the amount awarded should not be so palpably
and scandalously excessive as to indicate that it was the result of passion, prejudice or corruption
on the part of the trial judge. Neither should it be so little or so paltry that it rubs salt to the injury
[46]

already inflicted on plaintiffs.

WHEREFORE, premises considered, the petition for review in G.R. No. 99301 is PARTIALLY
GRANTED, while that of Pantranco North Express, Inc., in G.R. No. 99343 is DISMISSED.The
Decision appealed from is AFFIRMED with MODIFICATION. The award of moral damages to
Lucila and Legaspi is hereby INCREASED to P400,000.00 and P50,000.00 respectively;
exemplary damages to Lucila is INCREASED to P200,000.00. Legaspi is awarded exemplary
damages of P50,000.00. The amount of P16,500.00 as actual or compensatory damages is
also GRANTED to Legaspi. All other awards of Respondent Court of Appeals are AFFIRMED.
Pantranco shall also PAY legal interest of 6% per annum on all sums awarded from the date of
promulgation of the decision of the trial court, May 24, 1989, until actual payment.
SO ORDERED.

[G.R. No. 115129. February 12, 1997]

IGNACIO BARZAGA, petitioner, vs. COURT OF APPEALS and ANGELITO

ALVIAR, respondents.

DECISION
BELLOSILLO, J.:

The Fates ordained that Christmas 1990 be bleak for Ignacio Barzaga and his family. On the
nineteenth of December Ignacio's wife succumbed to a debilitating ailment after prolonged pain
and suffering. Forewarned by her attending physicians of her impending death, she expressed her
wish to be laid to rest before Christmas day to spare her family from keeping lonely vigil over her
remains while the whole of Christendom celebrate the Nativity of their Redeemer.
Drained to the bone from the tragedy that befell his family yet preoccupied with overseeing the
wake for his departed wife, Ignacio Barzaga set out to arrange for her interment on the twenty-
fourth of December in obedience semper fidelis to her dying wish. But her final entreaty,
unfortunately, could not be carried out. Dire events conspired to block his plans that forthwith gave
him and his family their gloomiest Christmas ever.
This is Barzaga's story. On 21 December 1990, at about three o`clock in the afternoon, he
went to the hardware store of respondent Angelito Alviar to inquire about the availability of certain
materials to be used in the construction of a niche for his wife. He also asked if the materials could
be delivered at once. Marina Boncales, Alviar's storekeeper, replied that she had yet to verify if
the store had pending deliveries that afternoon because if there were then all subsequent
purchases would have to be delivered the following day. With that reply petitioner left.
At seven o' clock the following morning, 22 December, Barzaga returned to Alviar's hardware
store to follow up his purchase of construction materials. He told the store employees that the
materials he was buying would have to be delivered at the Memorial Cemetery in Dasmarias,
Cavite, by eight o'clock that morning since his hired workers were already at the burial site and
time was of the essence. Marina Boncales agreed to deliver the items at the designated time,
date and place. With this assurance, Barzaga purchased the materials and paid in full the amount
of P2,110.00. Thereafter he joined his workers at the cemetery, which was only a kilometer away,
to await the delivery.
 The construction materials did not arrive at eight o'clock as promised. At nine o' clock, the
delivery was still nowhere in sight. Barzaga returned to the hardware store to inquire about the
delay. Boncales assured him that although the delivery truck was not yet around it had already left
the garage and that as soon as it arrived the materials would be brought over to the cemetery in
no time at all. That left petitioner no choice but to rejoin his workers at the memorial park and wait
for the materials.
By ten o'clock, there was still no delivery. This prompted petitioner to return to the store to
inquire about the materials. But he received the same answer from respondent's employees who
even cajoled him to go back to the burial place as they would just follow with his construction
materials.
After hours of waiting - which seemed interminable to him - Barzaga became extremely
upset. He decided to dismiss his laborers for the day. He proceeded to the police station, which
was just nearby, and lodged a complaint against Alviar. He had his complaint entered in the police
blotter. When he returned again to the store he saw the delivery truck already there but the
materials he purchased were not yet ready for loading. Distressed that Alviar's employees were
not the least concerned, despite his impassioned pleas, Barzaga decided to cancel his transaction
with the store and look for construction materials elsewhere.
In the afternoon of that day, petitioner was able to buy from another store. But since darkness
was already setting in and his workers had left, he made up his mind to start his project the
following morning, 23 December. But he knew that the niche would not be finish in time for the
scheduled burial the following day. His laborers had to take a break on Christmas Day and they
could only resume in the morning of the twenty-sixth. The niche was completed in the afternoon
and Barzaga's wife was finally laid to rest. However, it was two-and-a-half (2-1/2) days behind
schedule.
On 21 January 1991, tormented perhaps by his inability to fulfill his wife's dying wish, Barzaga
wrote private respondent Alviar demanding recompense for the damage he suffered.Alviar did not
respond. Consequently, petitioner sued him before the Regional Trial Court. [1]

Resisting petitioner's claim, private respondent contended that legal delay could not be validly
ascribed to him because no specific time of delivery was agreed upon between them. He pointed
out that the invoices evidencing the sale did not contain any stipulation as to the exact time
of delivery and that assuming that the materials were not delivered within the period desired by
petitioner, the delivery truck suffered a flat tire on the way to the store to pick up the
materials. Besides, his men were ready to make the delivery by ten-thirty in the morning of 22
December but petitioner refused to accept them. According to Alviar, it was this obstinate refusal
of petitioner to accept delivery that caused the delay in the construction of the niche and the
consequent failure of the family to inter their loved one on the twenty-fourth of December, and
that, if at all, it was petitioner and no other who brought about all his personal woes.
Upholding the proposition that respondent incurred in delay in the delivery of the construction
materials resulting in undue prejudice to petitioner, the trial court ordered respondent Alviar to pay
petitioner (a) P2,110.00 as refund for the purchase price of the materials with interest per annum
computed at the legal rate from the date of the filing of the complaint, (b) P5,000.00 as temperate
damages, (c) P20,000.00 as moral damages, (d) P5,000.00 as litigation expenses, and
(e) P5,000.00 as attorney's fees.
On appeal, respondent Court of Appeals reversed the lower court and ruled that there was no
contractual commitment as to the exact time of delivery since this was not indicated in the invoice
receipts covering the sale. [2]

The arrangement to deliver the materials merely implied that delivery should be made within
a reasonable time but that the conclusion that since petitioner's workers were already at the
graveyard the delivery had to be made at that precise moment, is non-sequitur. The Court of
Appeals also held that assuming that there was delay, petitioner still had sufficient time to construct
the tomb and hold his wife's burial as she wished.
We sustain the trial court. An assiduous scrutiny of the record convinces us that respondent
Angelito Alviar was negligent and incurred in delay in the performance of his contractual
obligation. This sufficiently entitles petitioner Ignacio Barzaga to be indemnified for the damage
he suffered as a consequence of delay or a contractual breach. The law expressly provides that
those who in the performance of their obligation are guilty of fraud, negligence, or delay and those
who in any manner contravene the tenor thereof, are liable for damages. [3]

Contrary to the appellate court's factual determination, there was a specific time agreed upon
for the delivery of the materials to the cemetery. Petitioner went to private respondent's store on
21 December precisely to inquire if the materials he intended to purchase could be delivered
immediately. But he was told by the storekeeper that if there were still deliveries to be made that
afternoon his order would be delivered the following day. With this in mind Barzaga decided to buy
the construction materials the following morning after he was assured of immediate delivery
according to his time frame. The argument that the invoices never indicated a specific delivery
time must fall in the face of the positive verbal commitment of respondent's
storekeeper. Consequently it was no longer necessary to indicate in the invoices the exact time
the purchased items were to be brought to the cemetery. In fact, storekeeper Boncales admitted
that it was her custom not to indicate the time of delivery whenever she prepared invoices. [4]

Private respondent invokes fortuitous event as his handy excuse for that "bit of delay" in the
delivery of petitioner's purchases. He maintains that Barzaga should have allowed his delivery
men a little more time to bring the construction materials over to the cemetery since a few hours
more would not really matter and considering that his truck had a flat tire. Besides, according to
him, Barzaga still had sufficient time to build the tomb for his wife.
This is a gratuitous assertion that borders on callousness. Private respondent had no right to
manipulate petitioner's timetable and substitute it with his own. Petitioner had a deadline to
meet. A few hours of delay was no piddling matter to him who in his bereavement had yet to attend
to other pressing family concerns. Despite this, respondent's employees still made light of his
earnest importunings for an immediate delivery. As petitioner bitterly declared in court " x x x they
(respondent's employees) were making a fool out of me." [5]

We also find unacceptable respondent's justification that his truck had a flat tire, for this event,
if indeed it happened, was forseeable according to the trial court, and as such should have been
reasonably guarded against. The nature of private respondent's business requires that he should
be ready at all times to meet contingencies of this kind. One piece of testimony by respondent's
witness Marina Boncales has caught our attention - that the delivery truck arrived a little late than
usual because it came from a delivery of materials in Langcaan, Dasmarias, Cavite. Significantly,
[6]

this information was withheld by Boncales from petitioner when the latter was negotiating with her
for the purchase of construction materials.Consequently, it is not unreasonable to suppose that
had she told petitioner of this fact and that the delivery of the materials would consequently be
delayed, petitioner would not have bought the materials from respondent's hardware store but
elsewhere which could meet his time requirement. The deliberate suppression of this information
by itself manifests a certain degree of bad faith on the part of respondent's storekeeper.
The appellate court appears to have belittled petitioner's submission that under the prevailing
circumstances time was of the essence in the delivery of the materials to the grave site.However,
we find petitioner's assertion to be anchored on solid ground. The niche had to be constructed at
the very least on the twenty-second of December considering that it would take about two (2) days
to finish the job if the interment was to take place on the twenty-fourth of the month. Respondent's
delay in the delivery of the construction materials wasted so much time that construction of the
tomb could start only on the twenty-third. It could not be ready for the scheduled burial of
petitioner's wife. This undoubtedly prolonged the wake, in addition to the fact that work at the
cemetery had to be put off on Christmas day.
This case is clearly one of non-performance of a reciprocal obligation. In their contract of
[7]

purchase and sale, petitioner had already complied fully with what was required of him as
purchaser, i.e., the payment of the purchase price of P2,110.00. It was incumbent upon
respondent to immediately fulfill his obligation to deliver the goods otherwise delay would attach.
We therefore sustain the award of moral damages. It cannot be denied that petitioner and his
family suffered wounded feelings, mental anguish and serious anxiety while keeping watch on
Christmas day over the remains of their loved one who could not be laid to rest on the date she
herself had chosen. There is no gainsaying the inexpressible pain and sorrow Ignacio Barzaga
and his family bore at that moment caused no less by the ineptitude, cavalier behavior and bad
faith of respondent and his employees in the performance of an obligation voluntarily entered into.
We also affirm the grant of exemplary damages. The lackadaisical and feckless attitude of the
employees of respondent over which he exercised supervisory authority indicates gross
negligence in the fulfillment of his business obligations. Respondent Alviar and his employees
should have exercised fairness and good judgment in dealing with petitioner who was then
grieving over the loss of his wife. Instead of commiserating with him, respondent and his
employees contributed to petitioner's anguish by causing him to bear the agony resulting from his
inability to fulfill his wife's dying wish.
We delete however the award of temperate damages. Under Art. 2224 of the Civil Code,
temperate damages are more than nominal but less than compensatory, and may be recovered
when the court finds that some pecuniary loss has been suffered but the amount cannot, from the
nature of the case, be proved with certainty. In this case, the trial court found that plaintiff suffered
damages in the form of wages for the hired workers for 22 December 1990 and expenses incurred
during the extra two (2) days of the wake. The record however does not show that petitioner
presented proof of the actual amount of expenses he incurred which seems to be the reason the
trial court awarded to him temperate damages instead. This is an erroneous application of the
concept of temperate damages. While petitioner may have indeed suffered pecuniary losses,
these by their very nature could be established with certainty by means of payment receipts. As
such, the claim falls unequivocally within the realm of actual or compensatory
damages. Petitioner's failure to prove actual expenditure consequently conduces to a failure of his
claim. For in determining actual damages, the court cannot rely on mere assertions, speculations,
conjectures or guesswork but must depend on competent proof and on the best evidence
obtainable regarding the actual amount of loss. [8]

We affirm the award of attorney's fees and litigation expenses. Award of damages, attorney's
fees and litigation costs is left to the sound discretion of the court, and if such discretion be well
exercised, as in this case, it will not be disturbed on appeal. [9]

WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE except
insofar as it GRANTED on a motion for reconsideration the refund by private respondent of the
amount of P2,110.00 paid by petitioner for the construction materials. Consequently, except for
the award of P5,000.00 as temperate damages which we delete, the decision of the Regional Trial
Court granting petitioner (a) P2,110.00 as refund for the value of materials with interest computed
at the legal rate per annum from the date of the filing of the case; (b) P20,000.00 as moral
damages; (c) P10,000.00 as exemplary damages; (d) P5,000.00 as litigation expenses; and
(4) P5,000.00 as attorney's fees, is AFFIRMED. No costs.
SO ORDERED.

[G.R. No. 142029. February 28, 2001]

ERLINDA FRANCISCO, doing business in the name and style of Cebu Fountainhead Bakeshop
and JULIANA PAMAONG, petitioners, vs. RICARDO FERRER, JR., ANNETTE
FERRER, ERNESTO LO AND REBECCA LO, respondents.

DECISION
PARDO, J.:

Appeal via certiorari[1] taken by petitioners from the decision of the Court of Appeals [2] increasing the
trial courts award of moral damages to Ricardo Ferrer, Jr., Annette Ferrer, Ernesto Lo and Rebecca Lo to
two hundred fifty thousand pesos (P250,000.00) and awarding exemplary damages in the amount of one
hundred thousand pesos (P100,000.00), in addition to the following:
1. The cost of the wedding cake in the amount of P3,175.00;
2. Attorneys fees in the amount of P10,000.00; and
3. Cost of litigation.

The facts, as found by the Court of Appeals,[3] are as follows:

On November 19, 1992 Mrs. Rebecca Lo and her daughter Annette Ferrer ordered a three layered cake
from Fountainhead Bakeshop, Mango Avenue Branch. It was then agreed that the wedding cake shall be
delivered at 5:00 oclock in the afternoon at the Cebu Country Club, Cebu City, stating clearly that the
wedding is scheduled on December 14, 1992.

Plaintiffs made their first deposit in the amount of P1,000.00 on November 19, 1992 and two weeks
thereafter made a full payment on the remaining balance.

On the day of the wedding, December 14, 1992, plaintiffs arrived at the Cebu Country club around 6:00
oclock in the evening. They immediately notice the absence of the wedding cake.

At 7:00 oclock in the evening they made a follow-up call to Fountainhead Bakeshop and was informed
that it was probably late because of the traffic.

At 8:00 oclock they were informed that no wedding cake will be delivered because the order slip got
lost. Plaintiffs were then compelled to buy the only available cake at the Cebu Country Club which was a
sans rival. Even though they felt that it was a poor substitute to a wedding cake, the cutting of the cake is
always a part of the ceremony.

At 10:00 oclock in the evening, the wedding cake arrived but plaintiffs declined to accept it, besides their
order was a three-layered cake and what was actually delivered was a two-layered one.

Subsequently, defendant Erlinda Francisco sent a letter of apology accompanied with a P5,000.00 check,
however, the same was declined by plaintiffs because they felt it was inadequate.

Two weeks after the wedding, defendant Erlinda Francisco called Mrs. Rebecca Lo and apologized.

Ricardo Ferrer, son-in-law of Rebecca Lo corroborated the latters testimony, stating that two weeks after
the wedding, as a result of the non-delivery of the wedding cake, Ramon Montinola, the son-in-law of
Erlinda Francisco, went to Rebecca Los residence and offered the sum of P5,000.00 to indemnify for the
damage done, but it was rejected.[4]

On March 12, 1993, respondents filed with the Regional Trial Court, Cebu City an action for breach of
contract with damages against petitioners.[5]
After due trial, on May 19, 1995, the trial court rendered a decision in favor of plaintiffs [herein
defendants], the dispositive portion of which reads as follows:

THE FOREGOING CONSIDERED, judgment is hereby rendered in favor of the plaintiffs and against
Erlinda Francisco.

Directing the latter to pay the former the following:

1. The cost of the wedding cake in the amount of P3,175.00;

2. Moral damages in the amount of P30,000.00;

3. Attorneys fees in the amount of P10,000.00; and

4. Cost of litigation.

SO ORDERED.[6]

On May 25, 1995, petitioners appealed to the Court of Appeals.[7]

After due proceedings, on July 05, 1999, the Court of Appeals promulgated its decision modifying the
appealed decision as set out in the opening paragraph of this opinion.[8]
Hence, this appeal.[9]
The issues raised are (1) whether the Court of Appeals erred in affirming the trial courts award of moral
damages and increasing the amount from thirty thousand (P30,000.00) to two hundred fifty thousand pesos
(P250,000.00); and (2) whether the Court of Appeals was justified in awarding in addition to moral damages,
exemplary damages of one hundred thousand pesos (P100,000.00).
Petitioners submit that the Court of Appeals and the trial court erred in awarding moral damages in favor
of respondents because moral damages are recoverable in breach of contract cases only where the breach
was palpably wanton, reckless, malicious, in bad faith, oppressive or abusive.[10]
We agree. To recover moral damages in an action for breach of contract, the breach must be palpably
wanton, reckless, malicious, in bad faith, oppressive or abusive.[11]
Under the provisions of this law,[12] in culpa contractual or breach of contract, moral damages may be
recovered when the defendant acted in bad faith or was guilty of gross negligence (amounting to bad faith)
or in wanton disregard of his contractual obligation and, exceptionally, when the act of breach of contract
itself is constitutive of tort resulting in physical injuries.[13]
Moral damages may be awarded in breaches of contracts where the defendant acted fraudulently or in
bad faith.[14]
Bad faith does not simply connote bad judgment or negligence, it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach of known duty through some motive or interest
or ill will that partakes of the nature of fraud.[15]
In this case, [w]e find no such fraud or bad faith.[16]
Moral damages are in the category of an award designed to compensate the claimant for actual injury
suffered and not to impose a penalty on the wrongdoer.[17]
The person claiming moral damages must prove the existence of bad faith by clear and convincing
evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights,
mental anguish, serious anxiety as the result of the actuations of the other party. Invariably such action must
be shown to have been willfully done in bad faith or with ill motive. [18] Mere allegations of besmirched
reputation, embarrassment and sleepless nights are insufficient to warrant an award for moral damages. It
must be shown that the proximate cause thereof was the unlawful act or omission of the [private respondent]
petitioners.[19]
An award of moral damages would require certain conditions to be met, to wit: (1) first, there must be
an injury, whether physical, mental or psychological, clearly sustained by the claimant; (2) second, there
must be culpable act or omission factually established; (3) third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; and (4) fourth, the award of
damages is predicated on any of the cases stated in Article 2219 of the Civil Code. 21
It must again stressed that moral damages are emphatically not intended to enrich a plaintiff at the
expense of the defendant. 22 When awarded, moral damages must not be palpably and scandalously excessive
as to indicate that it was the result of passion, prejudice or corruption on the part of the trial court judge 23 or
appellate court justices. 24
In the same fashion, to warrant the award of exemplary damages, [t]he wrongful act must be
accompanied by bad faith, and an award of damages would be allowed only if the guilty party acted in a
wanton, fraudulent, reckless or malevolent manner. 25
The requirements of an award of exemplary damages are: (1) they may be imposed by way of example
in addition to compensatory damages, and only after the claimants right to them has been established; (2)
that they can not be recovered as a matter of right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith
or done in a wanton, fraudulent, oppressive or malevolent manner. 26
Nevertheless, the facts show that when confronted with their failure to deliver on the wedding day the
wedding cake ordered and paid for, petitioners gave the lame excuse that delivery was probably delayed
because of the traffic, when in truth, no cake could be delivered because the order slip got lost. For such
prevarication, petitioners must be held liable for nominal damages for insensitivity, inadvertence or
inattention to their customers anxiety and need of the hour. Nominal damages are recoverable where a legal
right is technically violated and must be vindicated against an invasion that has produced no actual present
loss of any kind or where there has been a breach of contract and no substantial injury or actual damages
whatsoever have been or can be shown. 27Nominal damages may be awarded to a plaintiff whose right has
been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, not for
indemnifying the plaintiff for any loss suffered. 28
WHEREFORE, the Court GRANTS the petition. The Court REVERSES the decision of the Court of
Appeals in CA-G. R. CV No. 50894, and in lieu thereof, sentences petitioners to pay respondents, as follows:
1. The cost of the wedding cake in the amount of P3, 175.00;
2. Nominal damages in the amount of P10,000.00;
3. Attorneys fees in the amount of P10,000.00; and
4. Costs of litigation.
No costs in this instance.
SO ORDERED.

G.R. No. 206468

JUDITH D. DARINES and JOYCE D. DARINES, Petitioners,

vs.
EDUARDO QUIÑONES and ROLANDO QUITAN, Respondents.
 DECISION

DEL CASTILLO, J.:

Ibis Petition for Review on Certiorari assails the October 29, 2012 Decision1 of the Court of Appeals (CA) in CA-G.R CV No.
95638, which reversed and set aside the July 14, 2010 Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3
in Civil Case No. 6363-R for "Breach of Contract of Carriage & Damages." Also challenged is the March 6, 2013 CA
Resolution3 denying the motion for reconsideration on the assailed Decision.

Factual Antecedents

Judith D. Darines (Judith) and her daughter, Joyce D. Darines (Joyce) (petitioners) alleged in their Complaint4 that on
December 31, 2005, they boarded the Amianan Bus Line with Plate No. ACM 497 and Body No. 808 as paying passengers
enroute from Carmen, Rosales, Pangasinan to Baguio City. Respondent Rolando M. Quitan (Quitan) was driving the bus at
that time. While travelling on Camp 3, Tuba, Benguet along Kennon Road, the bus crashed into a truck (with Plate No. XSE
578) which was parked on the shoulder of Kennon Road. As a result, both vehicles were damaged; two passengers of the
bus died; and the other passengers, including petitioners, were injured. In particular, Joyce suffered cerebral concussion
while Judith had an eye wound which required an operation.

Petitioners argued that Quitan and respondent Eduardo Quiñones (Quiñones), the operator of Amianan Bus Line, breached
their contract of carriage as they failed to bring them safely to their destination. They also contended that Quitan's reckless
and negligent driving caused the collision. Consequently, they prayed for actual, moral, exemplary and temperate damages,
and costs of suit.

For their part, Quiñones and Quitan (respondents) countered in their Answer5 that, during the December 31, 2005 incident,
Quitan was driving in a careful, prudent, and dutiful manner at the normal speed of 40 kilometers per hour. According to
them, the proximate cause of the incident was the negligence of the truck driver, Ronald C. Fernandez, who parked the
truck at the roadside right after the curve without having installed any early warning device. They also claimed that Quiñones
observed due diligence in the selection and supervision of his employees as he conducted seminars on road safety
measures; and Quitan attended such seminars including those required by the government on traffic safety. They likewise
averred that Quitan was a licensed professional driver who, in his 12 years as a public utility driver, had not figured in any
incident like the one at hand.

During the trial, Judith testified that Quitan was driving at a very fast pace resulting in a collision with the truck parked at the
shoulder of the road.6 Consequently, the bone holding her right eye was fractured and had to be operated.7 She claimed
that, as a result of incident, she failed to report for work for two months.8

To prove the actual damages that she suffered, Judith presented receipts for medicine, and a summary of expenses, which
included those incurred for the ritual dao-is. She explained that she and Joyce are Igorots, being members of Ibaloi,
Kanka.nay-ey, an indigenous tribe;9 and as their customary practice, when a member who meets an accident is released
from the hospital, they butcher pigs to remove or prevent bad luck from returning to the family.10

Moreover, to support her claim for moral damages, Judith testified that she suffered sleepless nights since she worried
about the result and possible effect of her operation.11

On the other hand, respondents presented Ernesto Benitez (Benitez), who, on behalf of respondents, testified that he
bought the medicines and paid petitioners' hospitalization expenses, as evidenced by receipts he submitted in court.12

Ruling of the Regional Trial Court

On July 14, 2010, the RTC rendered its Decision ordering respondents to pay petitioners the following:

1. Moral Damages of One Hundred Thousand Pesos (₱100,000.00);

2. Exemplary Damages of Thirty Thousand Pesos (₱30,000.00);

 3. Attorney's Fees of Fifteen Percent (15%) of the Damages, plus Total Appearance Fees of Sixteen Thousand Five
Hundred Pesos (₱16,500.00); and

4. Costs of Suit.13

The RTC held that since the respondents already paid the actual damages relating to petitioners' medical and
hospitalization expenses, then the only remaining matters for resolution were: whether respondents were liable to pay
petitioners a) actual damages representing the expenses incurred during the dao-is ritual; and, Judith's alleged lost income;
b) moral and exemplary damages; and, c) attorney's fees.

The RTC noted that petitioners did not present any receipt as regards the expenses they incurred during the dao-isritual. As
regards their claim for Judith's lost income, the RTC held that petitioners similarly failed to substantiate the same as there
was no showing that Judith's failure to report for work for two months was because of the incident. Thus, the RTC did not
award actual damages for lack of evidence.

However, the RTC awarded moral damages grounded on Judith's testimony regarding her pain and suffering. It likewise
awarded exemplary damages by way of correction, and to serve as example to common carriers to be extraordinarily
diligent in transporting passengers. It also granted petitioners

attorney's fees plus costs of suit on the ground that petitioners were compelled to litigate the case.

Aggrieved, respondents appealed to the CA.

Ruling of the Court of Appeals

In its October 29, 2012 Decision, the CA reversed and set aside the RTC Decision.

The CA stressed that respondents did not dispute that they were liable for breach of contract of carriage; in fact, they paid
for the medical and hospital expenses of petitioners. Nonetheless, the CA deleted the award of moral damages because
petitioners failed to prove that respondents acted fraudulently or in bad faith, as shown by the fact that respondents paid
petitioners' medical and hospitalization expenses. The CA held that, since no moral damages was awarded, then there was
no basis to grant exemplary damages. Finally, it ruled that because moral and exemplary damages were not granted, then
the award of attorney's fees must also be deleted.

On March 6, 2013, the CA denied petitioners' Motion for Reconsideration.

Issues

Hence, petitioners filed this Petition raising the issues as follows:

1. WHETHER OR NOT THE CASE OF PETITIONERS FALL[S] UNDER ARTICLES 20, 1157, 1759, 2176, 2180 AND 2219
OF THE CIVIL CODE TIIEREBY ENTITL[ING TIIEM] TO MORAL AND EXEMPLARY DAMAGES AND ATIORNEY'S FEES;

2. WHETHER OR NOT THE X X X AWARD OF DAMAGES AND ATTORNEY'S FEES BY TIIE TRIAL COURT BECAME
FINAL AND EXECUTORY SINCE HEREIN RESPONDENTS DID NOT QUESTION THE SAME IN THEIR APPEAL BUT
MERELY QUESTIONED THE AMOUNTS OF AWARD [FOR BEING] EXORBITANT.14

Petitioners'Arguments

Petitioners maintain that respondents are liable to pay them moral and exemplary damages because the proximate cause of
their injuries was the reckless driving of Quitan. As regards Quiñones, his fault is presumed considering that he did not offer
proof that he exercised extraordinary diligence in the selection and supervision of his employees. They added that the
negligence of respondents resulted in the latter's failure to transport them to their destination thereby constituting a breach
of their contract of carriage. They also argued that the RTC's grant of damages and attorney's fees in their favor already
attained finality because when respondents appealed to the CA, they only questioned the amounts given by the RTC for
being exorbitant, but not the award itself.

Respondents' Arguments

Respondents, on their end, posit that they are not liable to pay moral damages because their acts were not attended by
fraud or bad faith. They add that since petitioners are not entitled to moral damages, then it follows that they are also not
entitled to exemplary damages; and same is true with regard to the grant of attorney's fees as the same necessitates the
grant of moral and exemplary damages.

Our Ruling

The Court denies the Petition.

First of all, petitioners contend that the awards of moral and exemplary damages and attorney's fees by the RTC already
attained finality because respondents did not dispute such grants when they appealed to the CA but only the fact that the
amounts were exorbitant.

Such contention is without merit.

A plain reading of the assigned errors15 and issues16 in the Appellants' Brief of respondents with the CA reveals that they
questioned the awards of moral and exemplary damages as well as attorney's fees made by the RTC to petitioners. Since
respondents timely challenged the awards when they interposed an appeal to the CA, the same had not yet attained finality.

Going now to the main issue, the Court fully agrees with the CA ruling that in an action for breach of contract, moral
damages may be recovered only when a) death of a passenger results; orb) the carrier was guilty of fraud and bad faith
even if death does not result; and that neither of these circumstances were present in the case at bar. The CA correctly held
that, since no moral damages was awarded then, there is no basis to grant exemplary damages and attorney's fees to
petitioners.

To stress, this case is one for breach of contract of carriage (culpa contractual) where it is necessary to show the existence
of the contract between the parties, and the failure of the common carrier to transport its passenger safely to his or her
destination. An action for breach of contract differs from quasi-delicts (also referred as culpa aquilianaor culpa extra
contractual) as the latter emanate from the negligence of the tort feasor17 including such instance where a person is injured
in a vehicular accident by a party other than the carrier where he 1s a passenger.

The principle that, in an action for breach of contract of carriage, moral damages may be awarded only in case (1) an
accident results in the death of a passenger; or (2) the carrier is guilty of fraud or bad faith, is pursuant to Article 1764, in
relation to Article 2206(3) of the Civil Code, and Article 2220 thereof,18 as follows:

Article 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book,
concerning Damages. Article 2206 shall also apply to the death of a passengercaused by the breach of contract by a
1âwphi1

common carrier. (Emphasis supplied)

Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos,
even though there may have been mitigating circumstances. In addition:

xxxx

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased.

Article 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 badfaith. (Emphasis supplied)
The aforesaid concepts of fraud or bad faith and negligence are basic as they are distinctly differentiated by law.
Specifically, fraud or bad faith connotes "deliberate or wanton wrong doing"19 or such deliberate disregard of contractual
obligations20 while negligence amount to sheer carelessness.21

More particularly, fraud includes "inducement through insidious machination."22 In turn, insidious machination refers to such
deceitful strategy or such plan with an evil purpose. On the other hand, bad faith does not merely pertain to bad judgment or
negligence but relates to a dishonest purpose, and a deliberate doing of a wrongful act. Bad faith involves "breach of a
known duty through some motive or interest or ill will that partakes of the nature of fraud. "23

In Viluan v. Court of Appeals,24 and Bulante v. Chu Liante, 25 the Court disallowed the recovery of moral damages in actions
for breach of contract for lack of showing that the common carrier committed fraud or bad faith in performing its obligation.
Similarly, in Verzosa v. Baytan,26 the Court did not also grant moral damages in an action for breach of contract as there was
neither allegation nor proof that the common carrier committed fraud or bad faith.27 The Court declared that "[t]o award moral
damages for breach of contract, therefore, without proof of bad faith or malice on the part of the defendant, as required by
[Article 2220 of the Civil Code], would be to violate the clear provisions of the law, and constitute unwarranted judicial
legislation."28

Meanwhile, in Gatchalian v. Delim,29 and Mr. & Mrs. Fabre, Jr. v. Court of Appeals,30 the Court found the common carriers
liable for breach of contract of carriage and awarded moral damages to the injured passengers on the ground that the
common carrier committed gross negligence, which amounted to bad faith. Particularly, in Mr. & Mrs. Fabre, Jr., the gross
negligence of the common carrier was determined from the fact that its driver was not engaged to drive long distance
travels; he was also unfamiliar with the area where he detoured the bus as it was his first time to ply such route; the road
was slippery because it was raining, yet the bus was running at 50 kilometers per hour resulting in its skidding to the left
shoulder of the road; and the bus hit the steel brace on the road at past 11:30 p.m. The Court also noted that other than the
imputation of gross negligence, the injured passengers therein pursued their claim not on the theory of breach of contract of
carriage alone but also on quasi-delicts.

Clearly, unless it is fully established (and not just lightly inferred) that negligence in an action for breach of contract is so
gross as to amount to malice, then the claim of moral damages is without merit.31

Here, petitioners impute negligence on the part of respondents when, as paying passengers, they sustained injuries when
the bus owned and operated by respondent Quiñones, and driven by respondent Quitan, collided with another vehicle.
Petitioners propounded on the negligence of respondents, but did not discuss or impute fraud or bad faith, or such gross
negligence which would amount to bad faith, against respondents. There being neither allegation nor proof that respondents
acted in fraud or in bad faith in performing their duties arising from their contract of carriage, they are then not liable for
moral damages.

The Court also sustains the CA's finding that petitioners are not entitled to exemplary damages. Pursuant to Articles 2229
and 223432 of the Civil Code, exemplary damages may be awarded only in addition to moral, temperate, liquidated, or
compensatory damages. Since petitioners are not entitled to either moral, temperate, liquidated, or compensatory damages,
then their claim for exemplary damages is bereft of merit.

Finally, considering the absence of any of the circumstances under Article 220833 of the Civil Code where attorney's fees
may be awarded, the same cannot be granted to petitioners.

All told, the CA correctly ruled that petitioners are not entitled to moral and exemplary damages as well as attorney's fees.

WHEREFORE, the Petition is DENIED. The October 29, 2012 Decision and March 6, 2013 Resolution of the Court of
Appeals in CA-G.R. CV No. 95638 are AFFIRMED.

SO ORDERED.

LETICIA TAN, MYRNA G.R. No. 190521

MEDINA, MARILOU
SPOONER, ROSALINDA Present:
TAN, and MARY JANE TAN,
MARY LYN TAN, CELEDONIO CARPIO MORALES, J., Chairperson,
TAN, JR., MARY JOY TAN, BRION,
and MARK ALLAN TAN, BERSAMIN,
represented herein by their mother, VILLARAMA, JR., and
LETICIA TAN, SERENO, JJ.
Petitioners,

- versus - Promulgated:

January 12, 20111

OMC CARRIERS, INC. and
BONIFACIO ARAMBALA,
Respondents.
x-----------------------------------------------------------------------------------------x

RESOLUTION

BRION, J.:

We resolve the motion for reconsideration[1] filed by Leticia Tan, Myrna Medina, Marilou
Spooner, Rosalinda Tan, Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan, and Mark
Allan Tan (petitioners), all heirs of the late Celedonio Tan asking us to reverse and set aside our
Resolution of February 17, 2010.[2] We denied in this Resolution their petition for review
on certiorari for failing to show any reversible error in the assailed Court of Appeals (CA) decision of
June 22, 2009[3] sufficient to warrant the exercise of our discretionary appellate jurisdiction.

The CA decision, in turn, affirmed with modification the decision of the Regional Trial Court
(RTC) of Muntinlupa City in Civil Case No. 96-186, finding the respondents OMC Carriers, Inc. (OMC)
and Bonifacio Arambala guilty of gross negligence and awarding damages to the petitioners.

THE FACTS

On September 27, 1996, the petitioners filed a complaint for damages with the RTC against OMC
and Bonifacio Arambala.[4] The complaint states that on November 24, 1995, at around 6:15 a.m.,
Arambala was driving a truck[5] with a trailer[6] owned by OMC, along Meralco Road, Sucat, Muntinlupa
City. When Arambala noticed that the truck had suddenly lost its brakes, he told his companion to jump
out. Soon thereafter, he also jumped out and abandoned the truck. Driverless, the truck rammed into the
house and tailoring shop owned by petitioner Leticia Tan and her husband Celedonio Tan, instantly
killing Celedonio who was standing at the doorway of the house at the time.[7]

The petitioners alleged that the collision occurred due to OMCs gross negligence in not properly
maintaining the truck, and to Arambalas recklessness when he abandoned the moving truck. Thus, they
claimed that the respondents should be held jointly and severally liable for the actual damages that they
suffered, which include the damage to their properties, the funeral expenses they incurred for Celedonio
Tans burial, as well as the loss of his earning capacity. The petitioners also asked for moral and
exemplary damages, and attorneys fees.[8]

The respondents denied any liability for the collision, essentially claiming that the damage to the
petitioners was caused by a fortuitous event, since the truck skidded due to the slippery condition of the
road caused by spilled motor oil.[9]
THE RTC DECISION

After trial, the RTC found OMC and Arambala jointly and severally liable to the petitioners for
damages.[10] Relying on the doctrine of res ipsa loquitur, the RTC held that it was unusual for a truck to
suddenly lose its brakes; the fact that the truck rammed into the petitioners house raised the presumption
of negligence on the part of the respondents. These, the respondents failed to refute.[11]

The RTC did not agree with the respondents claim of a fortuitous event, pointing out that even
with oil on the road, Arambala did not slow down or take any precautionary measure to prevent the truck
from skidding off the road. The alleged oil on the road did not also explain why the truck lost its brakes.
Had OMC done a more rigid inspection of the truck before its use, the defective brake could have been
discovered. The RTC, thus, held OMC jointly and severally liable with Arambala for the damage caused
to the petitioners, based on the principle of vicarious liability embodied in Article 2180 [12] of the Civil
Code.[13]

The dispositive portion of the decision stated:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs
and against the defendants ordering:
1. The defendants to pay the plaintiffs jointly and severally the amount of P50,000.00 for the
death of Celedonio Tan;
2. The defendants to pay the plaintiffs jointly and severally the amount of P500,000.00 for
the loss of earning capacity of Celedonio Tan, plus interest thereon from the date of death
of Celedonio Tan;
3. The defendants to pay the plaintiff Leticia Tan jointly and severally the amount
of P355,895.00 as actual damages;
4. The defendants to pay the plaintiffs jointly and severally the amount of P500,000.00 as
moral damages;
 5. The defendants to pay the plaintiffs jointly and severally the amount of P500,000.00 as
exemplary damages; and
6. The defendants to pay the plaintiffs jointly and solidarily the amount of P500,000.00 as
attorneys fees.

Costs against the defendants.

SO ORDERED.[14]

THE COURT OF APPEALS DECISION

On appeal, the CA affirmed the RTCs findings on the issues of the respondents negligence and liability
for damages. However, the CA modified the damages awarded to the petitioners by reducing the actual
damages award from P355,895.00 to P72,295.00. The CA observed that only the latter amount was duly
supported by official receipts.[15]

The CA also deleted the RTCs award for loss of earning capacity. The CA explained that
the petitioners failed to substantiate Celedonio Tans claimed earning capacity with reasonable certainty;
no documentary evidence was ever presented on this point. Instead, the RTC merely relied on Leticia
Tans testimony regarding Celedonio Tans income. The CA characterized this testimony as self-
serving.[16]

The CA further reduced the exemplary damages from P500,000.00 to P200,000.00, and deleted
the award of attorneys fees because the RTC merely included the award in the dispositive portion of the
decision without discussing its legal basis.[17]

THE PETITION

In the petition for review on certiorari before us,[18] the petitioners assert that the CA erred when it
modified the RTCs awarded damages. The petitioners submit the reasons outlined below.
First, the CA erred when it reduced the RTCs award of actual damages from P355,895.00 to P72,295.00.
The petitioners claim that they sought compensation for the damage done to petitioner Leticia Tans
house, tailoring shop, sewing machines, as well as other household appliances. Since the damages
primarily refer to the value of their destroyed property, and not the cost of repairing or replacing them,
the value cannot be evidenced by receipts. Accordingly, the RTC correctly relied on petitioner Leticia
Tans testimony and the documentary evidence presented, consisting of pictures of the damaged property,
to prove their right to recover actual damages for the destroyed property.
 Second, the petitioners are entitled to actual damages for the loss of Celedonio Tans earning
capacity. While they admit that they did not submit any documentary evidence to substantiate this claim,
the petitioners point out that Celedonio Tan was undisputably a self-employed tailor who owned a small
tailor shop; in his line of work, no documentary evidence is available.

Third, the petitioners maintain that they are entitled to exemplary damages in the amount
of P500,000.00 because the RTC and the CA consistently found that the collision was caused by the
respondents gross negligence. Moreover, the respondents acted with bad faith when they fabricated the
oil slick on the road story to avoid paying damages to the petitioners. As observed by the CA, the Traffic
Accident Investigation Report did not mention any motor oil on the road at the time of the accident.
SPO4 Armando Alambro, the Investigation Officer, likewise testified that there was no oil on the road
at the time of the accident. For the public good and to serve as an example, the respondents should be
made to pay P500,000.00 as exemplary damages.

Lastly, the petitioners are entitled to attorneys fees based on Article 2208 of the Civil Code which
provides, among others, that attorneys fees can be recovered when exemplary damages are awarded,
and when the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly
valid, just and demandable claim.

We initially denied the petition in our Resolution of February 17, 2010, for the petitioners failure to
show any reversible error in the CA decision sufficient to warrant the exercise of our discretionary
appellate jurisdiction. In our Resolution of August 11, 2010, we reinstated the petition on the basis of
the petitioners motion for reconsideration.

OUR RULING

Finding merit in the petitioners arguments, we partly grant the petition.

Procedural Issue

As both the RTC and the CA found that the respondents gross negligence led to the death of
Celedonio Tan, as well as to the destruction of the petitioners home and tailoring shop, we see no reason
to disturb this factual finding. We, thus, concentrate on the sole issue of what damages the petitioners
are entitled to.

We are generally precluded from resolving a Rule 45 petition that solely raises the issue of
damages, an essentially factual question, because Section 1, Rule 45 of the Rules of Court, expressly
states that
 Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from
a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the
Regional Trial Court or other courts whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The petition shall raise only questions of
law which must be distinctly set forth.

In light, however of the RTCs and the CAs conflicting findings on the kind and amount of
damages suffered which must be compensated, we are compelled to consider the case as one of the
recognized exceptions.[19] We look into the parties presented evidence to resolve this appeal.

Temperate damages in lieu

of actual damages

We begin by discussing the petitioners claim for actual damages arising from the damage inflicted
on petitioner Leticia Tans house and tailoring shop, taking into account the sewing machines and various
household appliances affected. Our basic law tells us that to recover damages there must be pleading
and proof of actual damages suffered.[20]As we explained in Viron Transportation Co., Inc.
v. Delos Santos:[21]

Actual damages, to be recoverable, must not only be capable of proof, but must actually
be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation,
conjecture or guesswork in determining the fact and amount of damages. To justify an award
of actual damages, there must be competent proof of the actual amount of loss, credence can
be given only to claims which are duly supported by receipts.[22]

The petitioners do not deny that they did not submit any receipt to support their claim for actual
damages to prove the monetary value of the damage caused to the house and tailoring shop when the
truck rammed into them. Thus, no actual damages for the destruction to petitioner Leticia Tans house
and tailoring shop can be awarded.

Nonetheless, absent competent proof on the actual damages suffered, a party still has the option
of claiming temperate damages, which may be allowed in cases where, from the nature of the case,
definite proof of pecuniary loss cannot be adduced although the court is convinced that the aggrieved
party suffered some pecuniary loss.[23] As defined in Article 2224 of the Civil Code:

Article 2224. Temperate or moderate damages, which are 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 can not, from the nature of the case, be proved with certainty.
 In Canada v. All Commodities Marketing Corporation,[24] we disallowed the award of actual
damages arising from breach of contract, where the respondent merely alleged that it was entitled to
actual damages and failed to adduce proof to support its plea. In its place, we awarded temperate
damages, in recognition of the pecuniary loss suffered.

The photographs the petitioners presented as evidence show the extent of the damage done to the
house, the tailoring shop and the petitioners appliances and equipment.[25] Irrefutably, this damage was
directly attributable to Arambalas gross negligence in handling OMCs truck. Unfortunately, these
photographs are not enough to establish the amount of the loss with certainty. From the attendant
circumstances and given the property destroyed,[26] we find the amount of P200,000.00 as a fair and
sufficient award by way of temperate damages.

Temperate damages in lieu of

loss of earning capacity

Similarly, the CA was correct in disallowing the award of actual damages for loss of earning
capacity. Damages for loss of earning capacity are awarded pursuant to Article 2206 of the Civil Code,
which states that:
Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at
least three thousand pesos, even though there may have been mitigating circumstances. In
addition:
(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity
shall in every case be assessed and awarded by the court, unless the deceased on
account of permanent physical disability not caused by the defendant, had no
earning capacity at the time of his death[.]

As a rule, documentary evidence should be presented to substantiate the claim for loss of earning
capacity.[27] By way of exception, damages for loss of earning capacity may be awarded despite the
absence of documentary evidence when: (1) the deceased is self-employed and earning less than the
minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in
the deceased's line of work, no documentary evidence is available; or (2) the deceased is employed as a
daily wage worker earning less than the minimum wage under current labor laws.[28]

According to the petitioners, prior to his death, Celedonio was a self-employed tailor who earned
approximately P156,000.00 a year, or P13,000.00 a month. At the time of his death in 1995, the
prevailing daily minimum wage was P145.00,[29] or P3,770.00 per month, provided the wage earner had
only one rest day per week. Even if we take judicial notice of the fact that a small tailoring shop normally
does not issue receipts to its customers, and would probably not have any documentary evidence of the
income it earns, Celedonios alleged monthly income of P13,000.00 greatly exceeded the prevailing
monthly minimum wage; thus, the exception set forth above does not apply.

In the past, we awarded temperate damages in lieu of actual damages for loss of earning capacity
where earning capacity is plainly established but no evidence was presented to support the allegation of
the injured partys actual income.

In Pleno v. Court of Appeals,[30] we sustained the award of temperate damages in the amount
of P200,000.00 instead of actual damages for loss of earning capacity because the plaintiffs income was
not sufficiently proven.

We did the same in People v. Singh,[31] and People v. Almedilla,[32] granting temperate damages
in place of actual damages for the failure of the prosecution to present sufficient evidence of the
deceaseds income.

Similarly, in Victory Liner, Inc. v. Gammad,[33] we deleted the award of damages for loss of
earning capacity for lack of evidentiary basis of the actual extent of the loss. Nevertheless, because the
income-earning capacity lost was clearly established, we awarded the heirs P500,000.00 as temperate
damages.

In the present case, the income-earning capacity of the deceased was never disputed. Petitioners
Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan and Mark Allan Tan were all minors
at the time the petition was filed on February 4, 2010,[34] and they all relied mainly on the income earned
by their father from his tailoring activities for their sustenance and support. Under these facts and taking
into account the unrebutted annual earnings of the deceased, we hold that the petitioners are entitled to
temperate damages in the amount of P300,000.00 [or roughly, the gross income for two (2) years] to
compensate for damages for loss of the earning capacity of the deceased.

Reduction of exemplary damages proper

Exemplary or corrective damages are imposed by way of example or correction for the public
good, in addition to moral, temperate, liquidated or compensatory damages.[35] In quasi-delicts,
exemplary damages may be granted if the defendant acted with gross negligence.[36]

Celedonio Tans death and the destruction of the petitioners home and tailoring shop were
unquestionably caused by the respondents gross negligence. The law allows the grant of exemplary
damages in cases such as this to serve as a warning to the pubic and as a deterrent against the repetition
of this kind of deleterious actions.[37] The grant, however, should be tempered, as it is not intended to
enrich one party or to impoverish another. From this perspective, we find the CAs reduction of the
exemplary damages awarded to the petitioners from P500,000.00 to P200,000.00 to be proper.

Attorneys fees in order

In view of the award of exemplary damages, we find it also proper to award the petitioners
attorney's fees, in consonance with Article 2208(1) of the Civil Code.[38] We find the award of attorneys
fees, equivalent to 10% of the total amount adjudged the petitioners, to be just and reasonable under the
circumstances.

Interests due

Finally, we impose legal interest on the amounts awarded, in keeping with our ruling in Eastern
Shipping Lines, Inc. v. Court of Appeals,[39] which held that:

I. When an obligation, regardless of its source, i.e., law, contracts, quasi-

contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for
damages. The provisions under Title XVIII on "Damages" of the Civil Code govern in
determining the measure of recoverable damages.

II. With regard particularly to an award of interest in the concept of actual and compensatory
damages, the rate of interest, as well as the accrual thereof, is imposed, as follows:

1. When the obligation is breached, and it consists in the payment of a sum of

money, i.e., a loan or forbearance of money, the interest due should be that which
may have been stipulated in writing. Furthermore, the interest due shall itself earn
legal interest from the time it is judicially demanded. In the absence of
stipulation, the rate of interest shall be 12% per annum to be computed from
default, i.e., from judicial or extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is

breached, an interest on the amount of damages awarded may be imposed at
the discretion of the court at the rate of 6% per annum. No interest, however,
shall be adjudged on unliquidated claims or damages except when or until the
demand can be established with reasonable certainty. Accordingly, where the
demand is established with reasonable certainty, the interest shall begin to run
from the time the claim is made judicially or extrajudicially (Art. 1169, Civil
Code) but when such certainty cannot be so reasonably established at the time
the demand is made, the interest shall begin to run only from the date the
 judgment of the court is made (at which time the quantification of damages
may be deemed to have been reasonably ascertained). The actual base for the
computation of legal interest shall, in any case, be on the amount finally
adjudged.

3. When the judgment of the court awarding a sum of money becomes final
and executory, the rate of legal interest, whether the case falls under paragraph
1 or paragraph 2, above, shall be 12% per annum from such finality until its
satisfaction, this interim period being deemed to be by then an equivalent to a
forbearance of credit.

Accordingly, legal interest at the rate of 6% per annum on the amounts awarded starts to run from
May 14, 2003, when the trial court rendered judgment. From the time this judgment becomes final and
executory, the interest rate shall be 12% per annum on the judgment amount and the interest earned up
to that date, until the judgment is wholly satisfied.

WHEREFORE, premises considered, we PARTIALLY GRANT the petition. The June 22,
2009 decision of the Court of Appeals in CA-G.R. CV. No. 84733, which modified the decision of
the Regional Trial Court of Muntinlupa City, Branch 256, in Civil Case No. 96-186,
is AFFIRMED with MODIFICATION. As modified, respondents OMC Carriers, Inc. and Bonifacio
Arambala are ordered to jointly and severally pay the petitioners the following:

(1) P50,000.00 as indemnity for the death of Celedonio Tan;

(2) P72,295.00 as actual damages for funeral expenses;
(3) P200,000.00 as temperate damages for the damage done to petitioner Leticias house,
tailoring shop, household appliances and shop equipment;
(4) P300,000.00 as damages for the loss of Celedonio Tans earning capacity;
(5) P500,000.00 as moral damages;
(6) P200,000.00 as exemplary damages; and
(7) 10% of the total amount as attorneys fees; and costs of suit.

In addition, the total amount adjudged shall earn interest at the rate of 6% per annum from May
14, 2003, and at the rate of 12% per annum, from the finality of this Resolution on the balance and
interest due, until fully paid.

SO ORDERED.