VOL.321,DECEMBER21,1999 JarcoMarketingCorporationvs.CourtofAppeals G.R.No.129792.December21,1999.

375

JARCO MARKETING CORPORATION, LEONARDO KONG,JOSETIOPEandELISAPANELO,petitioners,vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILARandCRISELDAR.AGUILAR,respondents.
Torts; QuasiDelicts; Words and Phrases; Doctrine of Attractive Nuisance, Explained.One who maintains on his premises dangerous instrumentalities or appliances of a character likelytoattractchildreninplay,andwhofailstoexerciseordinary caretopreventchildrenfromplayingtherewithorresortingthereto, isliabletoachildoftenderyearswhoisinjuredthereby,evenifthe child is technically a trespasser in the premises. The principal reasonforthedoctrineisthattheconditionorapplianceinquestion although its danger is apparent to those of age, is so enticing or alluringtochildrenoftenderyearsastoinducethemtoapproach, get on or use it, and this attractiveness is an implied invitation to such children. (Hidalgo Enterprises, Inc. v. Balandan, et al., 91 Phil.488,490[1952]).Same;Same;Same;Accident,Explained. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is a fortuitous circumstance,eventorhappen
________________
* FIRSTDIVISION.

376

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JarcoMarketingCorporationvs.CourtofAppeals

ing; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the persontowhomithappens. Same;Same;Same;Negligence,Explained.Negligenceisthe omissiontodosomethingwhichareasonableman,guidedbythose considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonablemanwouldnotdo.Negligenceisthefailuretoobserve, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand,wherebysuchotherpersonsuffersinjury. Same; Same; Same; Accident and negligence are intrinsically contradictoryone cannot exist with the other.Accident and negligenceareintrinsicallycontradictory;onecannotexistwiththe other. Accident occurs when the person concerned is exercising ordinarycare,whichisnotcausedbyfaultofanypersonandwhich couldnothavebeenpreventedbyanymeanssuggestedbycommon prudence. Same; Same; Test in Determining Existence of Negligence.The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith, thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. Same; Same; Evidence; Hearsay Rule; Res Gestae; Witnesses; It is axiomaticthatmattersrelatingtodeclarationsofpainorsuffering and statements made to a physician are generally considered declarationsandadmissions.Itisaxiomaticthatmattersrelating to declarations of pain or suffering and statements made to a physicianaregenerallyconsidereddeclarationsandadmissions.All thatisrequiredfortheiradmissibilityaspartoftheresgestaeisthat they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctorwhomshetrustedwithherlife.Wethereforeaccordcredence toGonzalestestimonyonthematter,i.e.,ZHIENETHperformedno actthat

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facilitated her tragic death. Sadly, petitioners did, through their negligenceoromissiontosecureormakestablethecountersbase. Witnesses; It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same.It is settled that when the issue concernsthecredibilityofwitnesses,theappellatecourtswillnotas a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstancesofweightandsubstancewhichcouldaffecttheresult ofthecase.Intheinstantcase,petitionersfailedtobringtheirclaim withintheexception. Torts; QuasiDelicts; Children; Presumptions; Children below nine (9) years old are conclusively presumed incapable of contributory negligence.Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributorynegligence.Inhisbook,formerJudgeCezarS.Sangco stated: In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumptionandalikeexemptionfromcriminalliabilityobtainsin acaseofapersonovernineandunderfifteenyearsofage,unlessit isshownthathehasactedwithdiscernment.Sincenegligencemay be a felony and a quasidelict and required discernment as a condition of liability, either criminal or civil, a child under nine yearsofageis,byanalogy,conclusivelypresumedtobeincapableof negligence; and that the presumption of lack of discernment or incapacityfornegligenceinthecaseofachildoverninebutunder fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a

matteroflaw.

PETITIONforreviewoncertiorariofadecisionoftheCourt ofAppeals. ThefactsarestatedintheopinionoftheCourt.

378

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EstellaandVistudazoLawFirmforpetitioners. FloranteA.Bautistaforprivaterespondents. DAVIDE,JR.,C.J.: InthispetitionforreviewoncertiorariunderRule45ofthe RulesofCourt,petitionersseekthereversalofthe17June 1 1996decision oftheCourtofAppealsinC.A.G.R.No.CV 2 37937 and the resolution denying their motion for reconsideration. The assailed decision set aside the 15 January1992judgmentoftheRegionalTrialCourt(RTC), MakatiCity,Branch60inCivilCaseNo.7119andordered petitioners to pay damages and attorneys fees to private respondentsConradoandCriselda(CRISELDA)Aguilar. Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. Petitioners LeonardoKong,JoseTiopeandElisaPaneloarethestores branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parentsofZhienethAguilar(ZHIENETH). In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels Department Store,MakatiCity.CRISELDAwassigninghercreditcard slipatthepaymentandverificationcounterwhenshefelta sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on thefloor,heryoungbodypinnedbythebulkofthestores giftwrapping counter/structure. ZHIENETH was crying andscreamingforhelp.Althoughshocked,CRISELDAwas quick to ask the assistance of the people around in 3 lifting thecounterandretrievingZHIENETHfromthefloor.
________________

1AnnexAofPetition;Rollo,3647.PerJusticeGodardoA.Jacinto,

with Justices Salome A. Montoya and Maximiano C. Asuncion, concurring.

2AnnexBofPetition;Rollo,49. 3TSN,13February1985,5,6,78,2122,31.

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ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated withCRISELDAbywritingonamagicslate.Theinjuries she sustained took their toil on her young body. She died fourteen(14)daysaftertheaccidentoron22May1983,on 4 thehospitalbed.Shewassixyearsold. Thecauseofherdeathwasattributedtotheinjuriesshe 5 sustained. The provisional medical certificate issued by ZHIENETHs attending doctor described the extent of her injuries:
Diagnoses: 1. Shock, severe, sec. to intraabdominal injuries due to blunt injury 2. Hemorrhage,massive,intraperitonealsec.tolaceration,(L) lobeliver 3. Rupture,stomach,anterior&posteriorwalls 4. Completetransection,4thposition,duodenum 5. Hematoma,extensive,retroperitoneal 6. Contusion,lungs,severe

CRITICAL After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral 6 expenses which they had incurred. Petitioners refused to pay.Consequently,privaterespondentsfiledacomplaintfor damages, docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages, P300,000formoraldamages,P20,000forattorneysfeesand

an unspecified amount for loss of income and exemplary damages.

________________
4Id.,32,36,42,52. 5OriginalRecord(OR),8. 6ExhibitH.

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In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH.TheyclaimedthatCRISELDAwasnegligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasizedthatthecounterwasmadeofsturdywoodwith a strong support; it never fell nor collapsed for the past fifteenyearssinceitsconstruction. Additionally, petitioner Jarco Marketing Corporation maintainedthatitobservedthediligenceofagoodfatherof a family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and counteredthatthecomplaintwasmaliciousforwhichthey suffered besmirched reputation and mental anguish. They soughtthedismissalofthecomplaintandanawardofmoral andexemplarydamagesandattorneysfeesintheirfavor. 7 In its decision the trial court dismissed the complaint and counterclaim after finding that the preponderance of theevidencefavoredpetitioners.Itruledthattheproximate causeofthefallofthecounteronZHIENETHwasheractof clingingtoit.Itbelievedpetitionerswitnesseswhotestified that ZHIENETH clung to the counter, afterwhich the structureandthegirlfellwiththestructurefallingontopof her, pinning her stomach. In contrast, none of private respondentswitnessestestifiedonhowthecounterfell.The trial court also held that CRISELDAs negligence contributedtoZHIENETHsaccident.

Inabsolvingpetitionersfromanyliability,thetrialcourt reasonedthatthecounterwassituatedattheendorcorner ofthe2ndfloorasaprecautionarymeasurehence,itcould 8 not be considered as an attractive nuisance. The counter was
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7OR,603612.PerJudgePedroN.Lagui. 8Onewhomaintainsonhispremisesdangerousinstrumentalitiesor

appliancesofacharacterlikelytoattractchildrenin 381

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higherthanZHIENETH.Ithasbeeninexistenceforfifteen years. Its structure was safe and wellbalanced. ZHIENETH, therefore, had no business climbing on and clingingtoit. Privaterespondentsappealedthedecision,attributingas errorsofthetrialcourtitsfindingsthat:(1)theproximate cause of the fall of the counter was ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liableforthedeathofZHIENETH. Further, private respondents asserted that ZHIENETH shouldbeentitledtotheconclusivepresumptionthatachild belownine(9)yearsisincapableofcontributorynegligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. Shehadasmallframe(fourfeethighandseventypounds) andthecounterwasmuchhigherandheavierthanshewas. Also, the testimony of one of the stores former employees, GerardoGonzales,whoaccompaniedZHIENETHwhenshe wasbroughttotheemergencyroomoftheMakatiMedical Center belied petitioners theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, [N]othing,Ididnotcomenearthecounterandthecounter 9 just fell on me. Accordingly, Gonzales testimony on ZHIENETHsspon

________________ play,andwhofailstoexerciseordinarycaretopreventchildrenfrom playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasserinthepremises. The principal reason for the doctrine is that the condition or applianceinquestionalthoughitsdangerisapparenttothoseofage,is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children. (Hidalgo Enterprises, Inc. v. Balandan, et al.,91Phil.488,490[1952]).
9TSN,10September1987,12.

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taneousdeclarationshouldnotonlybeconsideredaspartof resgestaebutalsoaccordedcredit. Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETHattheprecisemomentthatshewassigningthe creditcardslip. Finally,privaterespondentsvigorouslymaintainedthat theproximatecauseofZHIENETHsdeath,waspetitioners negligence in failing to institute measures to have the counterpermanentlynailed. On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETHs death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitionersadvertedtothetrialcourtsrejectionofGonzales testimonyasunworthyofcredence. Astoprivaterespondentsclaimthatthecountershould havebeennailedtotheground,petitionersjustifiedthatit was not necessary. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truthtotell,theyactedwithoutfaultornegligenceforthey had exercised due diligence on the matter. In fact, the

criminalcase forhomicidethroughsimplenegligencefiled by private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor. The Court of Appeals, however, decided in favor of privaterespondentsandreversedtheappealedjudgment.It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped 11 likeaninvertedL withatopwiderthanthebase.Itwas topheavyandtheweightoftheupperportionwasneither evenlydistributed
________________
10CriminalCaseNo.118986filedwiththeMakatiMetropolitanTrial

10

Court,Branch61.
11ExhibitD.

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nor supported by its narrow base. Thus, the counter was defective,unstableanddangerous;adownwardpressureon the overhanging portion or a push from the front could cause the counter to fall. Two former employees of petitionershadalreadypreviouslybroughttotheattention ofthemanagementthedangerthecountercouldcause.But the latter ignored their concern. The Court of Appeals faultedthepetitionersforthisomission,andconcludedthat the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for sometimewithoutapriorincident. The Court of Appeals declared that ZHIENETH, who wasbelowseven(7)yearsoldatthetimeoftheincident,was absolutelyincapableofnegligenceorothertort.Itreasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the sixyear old ZHIENETH could not be made to account for a mere mischieforrecklessact.ItalsoabsolvedCRISELDAofany negligence,findingnothingwrongoroutoftheordinaryin momentarilyallowingZHIENETHtowalkwhileshesigned

thedocumentatthenearbycounter. TheCourtofAppealsalsorejectedthetestimoniesofthe witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private respondents 12as evidenced by the hospitals statement of account. It denied an award for funeral expensesforlackofprooftosubstantiatethesame.Instead, a compensatory damage of P50,000 was awarded for the deathofZHIENETH. 13 Wequotethedispositiveportionoftheassaileddecision, thus:
________________
12ExhibitF. 13Supranote1.

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WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against [petitioners], ordering them to pay jointly and severally unto [privaterespondents]thefollowing: 1. P50,000.00bywayofcompensatorydamagesforthedeath of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April1984; 2. P99,420.86 as reimbursement for hospitalization expenses incurred;withlegalinterest(6%p.a.)from27April1984; 3. P100,000.00asmoralandexemplarydamages; 4. P20,000.00intheconceptofattorneysfees;and 5. Costs.

Privaterespondentssoughtareconsiderationofthedecision but the 14 same was denied in the Court of Appeals resolution of16July1997. PetitionersnowseekthereversaloftheCourtofAppeals decisionandthereinstatementofthejudgmentofthetrial

court.PetitionersprimarilyarguethattheCourtofAppeals erredindisregardingthefactualfindingsandconclusionsof thetrialcourt.Theystressthatsincetheactionwasbased ontort,anyfindingofnegligenceonthepartoftheprivate respondents would necessarily negate their claim for damages,wheresaidnegligencewastheproximatecauseof theinjurysustained.Theinjuryintheinstantcasewasthe death of ZHIENETH. The proximate cause was ZHIENETHsactofclingingtothecounter.Thisactinturn caused the counter to fall on her. This and CRISELDAs contributorynegligence,throughherfailuretoprovidethe propercareandattentiontoherchildwhileinsidethestore, nullified private respondents claim for damages. It is also forthesereasonsthatparentsaremadeaccountableforthe damageorinjuryinflictedonothersbytheirminorchildren. Under these circumstances, petitioners could not be held responsiblefortheaccidentthatbefellZHIENETH.
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14Supranote2.

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Petitioners also assail the credibility of Gonzales who was already separated from Syvels at the time he testified; hence, his testimony might have been tarnished by ill feelingsagainstthem. Fortheirpart,privaterespondentsprincipallyreiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales,whoheardZHIENETHcommentontheincident while she was in the hospitals emergency room should receive credence; and finally, ZHIENETHs part of the res gestaedeclarationthatshedidnothingtocausetheheavy structuretofallonhershouldbeconsideredasthecorrect versionofthegruesomeevents. Wedenythepetition. Thetwoissuestoberesolvedare:(1)whetherthedeath ofZHIENETHwasaccidentalorattributabletonegligence;

and(2)incaseofafindingofnegligence,whetherthesame was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failingtoexercisedueandreasonablecarewhileinsidethe storepremises. Anaccidentpertainstoanunforeseeneventinwhichno 15 fault or negligence attaches to the defendant. It is a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the 16 persontowhomithappens. On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of humanaffairs,woulddo,orthedoingofsomethingwhicha prudentandreasonable
________________
15SeeNovo&Co.v.Ainsworth,26Phil.380,387(1913). 16BLACKSLAWDICTIONARY,5thed.,1979,14.

386

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manwouldnotdo. Negligenceisthefailuretoobserve,for theprotectionoftheinterestofanotherperson,thatdegree of care, precaution and vigilance which the circumstances 18 justlydemand,wherebysuchotherpersonsuffersinjury. Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common 19 prudence. The test in determining the existence of negligence is 20 enunciatedinthelandmarkcaseofPicartv.Smith, thus: Didthedefendantindoingtheallegednegligentactusethat reasonable care and caution which an ordinarily prudent personwouldhaveusedinthesamesituation?Ifnot,then 21 heisguiltyofnegligence. We rule that the tragedy which befell ZHIENETH was

17

no accident and that ZHIENETHs death could only be attributedtonegligence. WequotethetestimonyofGerardoGonzaleswhowasat thesceneoftheincidentandaccompaniedCRISELDAand ZHIENETHtothehospital: Q WhileattheMakatiMedicalCenter,didyouhearor noticeanythingwhilethechildwasbeingtreated? A Attheemergencyroomwewereallsurroundingthe child.Andwhenthedoctoraskedthechildwhatdid youdo,thechildsaidnothing,Ididnotcomenearthe counterandthecounterjustfellonme.
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17McKeev.IntermediateAppellateCourt, 211 SCRA 517, 539 [1992]

citingBlacksLawDictionary,5thed.,1979,930.
18U.S.v. Barias, 23 Phil. 434, 437 [1912] citing Judge Cooleys work

onTorts,3rded.,1324.
19 See Cavanaugh v. Jepson Iowa, 167 N.W.2d 616, 623 (1969). See

alsoRestatement,Second,Torts8.
2037Phil.809(1918). 21Ibid.,813.

387

VOL.321,DECEMBER21,1999 JarcoMarketingCorporationvs.CourtofAppeals Q (COURTTOATTY.BELTRAN) YouwantthewordsinTagalogtobetranslated? Yes,yourHonor. Granted.Intercalatewalapo,hindipoakolumapit 22 doon.Bastabumagsak. ATTY.BELTRAN COURT

387

This testimony of Gonzales pertaining to ZHIENETHs statementformed(andshouldbeadmittedas)partoftheres gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling

occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanyinganequivocalactmaterialtotheissue,andgivingita legalsignificance,maybereceivedaspartoftheresgestae.

Itisaxiomaticthatmattersrelatingtodeclarationsofpain or suffering and statements made to a physician are 23 generallyconsidereddeclarationsandadmissions. Allthat isrequiredfortheiradmissibilityaspartoftheresgestaeis that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testifiedincourt.Underthecircumstancesthusdescribed,it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secureormakestablethecountersbase.
________________
22TSN,10September1987,12,13. 23 RICARDO J. FRANCISCO, III EVIDENCE, 1997, 591 citing Keefe

v.StateofArizona,60Ariz.293;Stukasv. Warfield, Pratt, Howell Co., 175N.W.81,85(1919). 388

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Gonzalesearliertestimonyonpetitionersinsistencetokeep and maintain the structurally unstable giftwrapping counterprovedtheirnegligence,thus: Q Whenyouassumedthepositionasgiftwrapperatthe secondfloor,willyoupleasedescribethegiftwrapping counter,wereyouabletoexamine? A BecauseeverymorningbeforeIstartworkingIusedto cleanthatcounterandsinceitisnotnailedanditwas onlystandingonthefloor,itwasshaky. xxx

Q Willyoupleasedescribethecounterat5:00oclock[sic] intheafternoonon[sic]May9,1983? A AtthathouronMay9,1983,thatcounterwasstanding besidetheverificationcounter.Andsincethetopofit washeavyandconsideringthatitwasnotnailed,itcan collapseatanytime,sincethetopisheavy. xxx Q Andwhatdidyoudo? A IinformedMr.Maataboutthatcounterwhichis[sic] shakyandsinceMr.Maatisfondofputtingdisplay decorationsontables,heeventoldmethatIwouldput somedecorations.ButsinceItoldhimthatitnot[sic] nailedanditisshakyhetoldmebetterinformalsothe companyaboutit.Andsincethecompanydidnotdo anythingaboutthecounter,soIalsodidnotdoanything 24 aboutthecounter. [Emphasissupplied] Ramon Guevarra, another former employee, corroborated thetestimonyofGonzales,thus: Q Willyoupleasedescribed[sic]tothehonorableCourt thecounterwhereyouwereassignedinJanuary1983? xxx A Thatcounterassignedtomewaswhenmysupervisor orderedmetocarrythatcountertoanotherplace.Itold himthatthecounterneedsnailingandithastobe nailedbecauseitmightcauseinjuryoraccidentto anothersinceitwasshaky.
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24TSN,10September1987,8,9,11.

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Q Whenthatgiftwrappingcounterwastransferredatthe secondflooronFebruary12,1983,willyouplease describethattothehonorableCourt? A Itoldherthatthecounterwrapper[sic]isreallyingood

[sic]condition;itwasshaky.Itoldherthatwehadto nailit. Q Whenyousaidshe,towhomareyoureferringto[sic]? A IamreferringtoMs.Panelo,sir. Q AndwhatwastheanswerofMs.Panelowhenyoutold herthatthecounterwasshaky? A ShetoldmeWhydoyouhavetoteachme.Youareonly mysubordinateandyouaretoteachme?Andsheeven gotangryatmewhenItoldherthat. xxx Q FromFebruary12,1983uptoMay9,1983,whatifany, didMs.Panelooranyemployeeofthemanagementdo tothat(sic) xxx None,sir.Theynevernailedthecounter.Theyonly 25 nailedthecounteraftertheaccidenthappened. [Emphasissupplied] Witness:

Without doubt, petitioner Panelo and another store supervisorwerepersonallyinformedofthedangerposedby the unstable counter. Yet, neither initiated any concrete actiontoremedythesituationnorensurethesafetyofthe storesemployeesandpatronsasareasonableandordinary prudentmanwouldhavedone.Thus,asconfrontedbythe situation petitioners miserably failed to discharge the due diligencerequiredofagoodfatherofafamily. OntheissueofthecredibilityofGonzalesandGuevarra, petitioners failed to establish that the formers testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarras testimonies were blemished by ill feelings against petitionerssince they (Gon
________________
25TSN,2October1987,9,11.

390

390

SUPREMECOURTREPORTSANNOTATED

JarcoMarketingCorporationvs.CourtofAppeals zales and Guevarra) were already separated from the companyatthetimetheirtestimonieswereofferedincourt was but mere speculation and deserved scant consideration. Itissettledthatwhentheissueconcernsthecredibility ofwitnesses,theappellatecourtswillnotasageneralrule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinctadvantageofactuallyhearingthetestimonyofand 26 observing the deportment of the witnesses. However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate somefactsorcircumstancesofweightandsubstancewhich 27 could affect the result of the case. In the instant case, petitionersfailedtobringtheirclaimwithintheexception. AnentthenegligenceimputedtoZHIENETH,weapply theconclusivepresumptionthatfavorschildrenbelownine (9) years old in that they are incapable of contributory 28 negligence. In his book, former Judge Cezar S. Sangco stated:
Inourjurisdiction,apersonundernineyearsofageisconclusively presumed to have acted without discernment, and is, on that account,exemptfromcriminalliability.Thesamepresumptionand alikeexemptionfromcriminalliabilityobtainsinacaseofaperson overnineandunderfifteenyearsofage,unlessitisshownthathe hasactedwithdiscernment.Sincenegligencemaybeafelonyanda quasidelict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligenceinthecaseofachildoverninebutunderfifteenyearsof ageisarebuttableone,underourlaw.Therule,therefore,isthata child
________________
26 See BPI Credit Corporation v. Court of Appeals, 204 SCRA 601,

608

(1991);Geronimov.CourtofAppeals,224SCRA494,498(1993).
27 Borillo v. Court of Appeals, 209 SCRA 130, 140141 (1992); McKee v.

Intermediate Appellate Court, supra note 16, 537; Salvador v. Court of Appeals,243SCRA239,253(1995).
28IPHILIPPINELAWONTORTSANDDAMAGES,7071(1993).

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undernineyearsofagemustbeconclusivelypresumedincapableof contributorynegligenceasamatteroflaw.[Emphasissupplied]

EvenifweattributecontributorynegligencetoZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept petitioners theory that thecounterwasstableandsturdy.Forifthatwasthetruth, a frail sixyear old could not have caused the counter to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the 29 evidence onrecordrevealotherwise,i.e.,itwasnotdurable after all. Shaped like an inverted L, the counter was heavy, huge, and its top laden with formica. It protruded towards30 the customer waiting area and its base was not secured. CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to 31 CRISELDAswaist,latertothelattershand. CRISELDA momentarilyreleasedthechildshandfromherclutchwhen she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child.Further,atthetimeZHIENETHwaspinneddownby thecounter,shewasjustafootawayfromhermother;and the giftwrapping counter was just four meters away from 32 CRISELDA. Thetimeanddistancewerebothsignificant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admittedtothedoctorwhotreatedheratthehospitalthat shedidnotdoanything;thecounterjustfellonher. WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Courtof
________________
29ExhibitD. 30 Exhibits K, M, and N. The counter was made of heavy wood

measuringabout4to5metersinheight;1meterinlength;and21/2to 3 meters in width; with four (4) square legs. Its top was made of 5 1/2

inchthickwoodcoveredbyformicaabout3/4inchthick.
31TSN,13February15,20. 32Ibid.,11,22.

392

392

SUPREMECOURTREPORTSANNOTATED JarcoMarketingCorporationvs.CourtofAppeals

Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is herebyAFFIRMED. Costsagainstpetitioners. SOORDERED. Puno,Kapunan,Pardo and YnaresSantiago, JJ., concur. Petitiondenied,judgmentaffirmed. Notes.The test for the admissibility of a declaration which is considered as part of the res gestae is the unreflecting character of the statements made during the startling occurrence, or immediately before or after said occurrence.(Peoplevs.Maguikay,237SCRA587[1994]) Experienceshowsthatoftentimesastartlingoccurrence creates an indelible impression in the mind that can be recalledvividly.(Peoplevs.Daquipil,240SCRA314[1995]) Asageneralrule,findingsoffactoftheCourtofAppeals are binding and conclusive upon the Supreme Court, and the Court will not normally disturb such factual findings unless the findings of fact of the said court are palpably unsupported by the evidence on record or unless the judgment itself is based on a misapprehension of facts. (Valenzuelavs.CourtofAppeals,253SCRA303[1996]) o0o
393

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