G.R. No. 72182 November 25, 1986 DEE HUA LIONG ELECTRICAL EQUIPMENT CORPORATION, petitioner, vs.

ROMEO REYES, ET AL., respondents. Juanitas, Perez, Gonzales and Associates for petitioner. Romeo P. Pineda for respondents.

NARVASA, J.:p The Court of First Instance sentenced petitioner to pay to private respondents P50,000.00 as actual damages; P50,000.00 as moral damages; P50,000.00 as exemplary damages; and P10,000.00 as attomey's fees, as well as to pay treble Cost. The Intermediate Appellate Court, on appeal, affirmed petitioner's liability but reduced the award for moral and ex-emplary damages to P10,000.00 and P5,000.00, respectively. Petitioner seasonably appealed to this Court, impugning the award of damages and claiming that it had been denied due process in the proceedings before the Trial Court. Following submission of the private respondents' comment on the petition for review, the Court issued a Resolution denying the petition for lack of merit. Petitioner then filed a motion for reconsideration, which was likewise denied. A second motion for reconsideration was, however, admitted and the private respondents were required to comment thereon, which they did. The Court now decides the appeal on the merits. The Intermediate Appellate Court found that private respondent Romeo Reyes operated "the once thriving and prosperous Excelite Electronic Center in San Miguel, Bulacan;" that long prior to September,1981, he began "receiving complaints of irate and dissatisfied customers who complained over the defective repairs done on their television and stereo units; that he repeated the repair jobs over and over but despite his best efforts, and despite losing "man hours for over a month," 'he lost the patronage of many customers (and) (h)is once thriving business was on the verge of ruin;" that he finally discovered that "the root cause of all these troubles" was the "low grade electronic filter capacitor(s) ... (h)e had been buying from ... (petitioner) for the past years;" that he "opened one of the capacitors ... (and found) that the actual label of 22 micro farad was superimposed by a fake label making it appear to be 2200 micro farad;" that although the "actual price of one capacitor with 22 micro farad is only P2.00 ... he had been paying the amount of P6.40 to P7.40 per piece of the supposed 2200 micro farad capacitor;" 11 that what private respondent thereafter did was to buy three (3) capacitors on September 14, 1981; that although the corresponding invoice (Exhibit A) stated the capacitors to be "with strength of 2200 ... , in truth and in fact it was discovered as shown by Exhs. B and C to be only of 22 micro farad." 12 It was "this massive fraudulent scheme

employed by ...(Petitioner) in short selling to plaintiff the capacitors" that allegedly caused damages to private respondent. These findings of fact were based solely on the testimony of private respondent and his wife. No evidence was presented in behalf of petitioner because it was declared in default for failure of its counsel or other representative to appear at tile pre-trial scheduled by the Trial Court, despite notice. On being served with notice of the judgment by default petitioner moved for new trial alleging that it had good cause to seek postponement of the pre-trial; and claiming moreover, to have a meritorious defense to the complaint, adverting to a "Component Test Report" of the National Institute of Science and Technology" attesting to the correctness of the represented capacity of the capacitors in question, and a certification from the Japanese manufacturer to the effect that there was "merely a misprint" in the labels. 15 The Trial Court denied the motion. On appeal, the Intermediate Appellate Court sustained that denial of the motion for new trial in view of the demonstrated falsity of the ground raised upon for the requested postponement of the pre-trial, to wit: that Atty. Marquinez, the petitioner's counsel had personally to appear and represent another client at an earlier scheduled hearing of a case before the Municipal Court of Pasig, when in truth, as certified by the Clerk of the latter Court and as shown by the minutes of its proceedings, it was another lawyer who appeared, not Atty. Marquinez. It is axiomatic that the findings of fact of the Intermediate Appellate Court are conclusive and may not be reviewed by this Court. There is no compelling reason to deviate from this wellknown rule in this case. Upon those factual findings, this Court declares that the Trial Court was justified in declaring petitioner in default and rendering judgment by default against it, for failure to appear at the pre-trial despite notice. 17 However, the adjudgment of damages appears to be quite excessive in the premises. The grant of P50,000.00 as actual damages is made to rest on nothing more substantial than the sworn declarations of the private respondents (plaintiff and his wife) that one (1) of the capacitors used in repairing an appliance was of 22 micro farad capacity instead of 2200 micro farad, and that three (3) other capacitors, subsequently purchased, had "superimposed" labels. There is no proof whatever that defective capacitors were used in the other numerous repair jobs done by private respondent, or that the repairs did indeed entail the use of capacitors. There is moreover no evidence of a deliberate intent on petitioner's part to foist a fraud on the general public, including private respondents, in the sale of capacitors. On the contrary, there are indications that there was merely a "misprint" in the labels. The award of damages to private respondent must, therefore, be struck down for want of adequate foundation. Actual or compensatory damages cannot be presumed, but must be duly proved, and proved with a reasonable degree of certainty. A court cannot rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend upon competent proof that they have suffered and on evidence of the actual amount thereof. If the proof is flimsy and unsubstantial, no damages will be awarded. 18

Proof of equivalent character is also necessary to support an award of moral damages, and it does not appear that any such evidence, was offered here. The decision of the Trial Court, which summarizes the testimony of the only two witnesses for the private respondent, said respondent himself and his wife, 19 makes no mention of any testimony being given concerning moral damages, such as of wounded feelings, social humiliation, anxiety and the like, and to all appearances merely assumes the existence of moral injury from what proof of actual loss was adduced. More importantly, and as already pointed out, there is also no evidence that petitioner, in selling allegedly mislabelled capacitors, acted maliciously and with deliberate intent to defraud the private respondent and the general public. Furthermore, 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 (Art. 2216), it is, nevertheless, essential that the claimant satisfactorily prove the existence of the factual basis of the damages (Art. 2217) and its causal relation to defendant's acts. This is so because moral damages 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 (Algara vs. Sandejas, 27 Phil. 284). The trial court and the Court of Appeals both seem to be of the opinion that the mere fact that respondents were sued without any legal foundation entitled them to an award of moral damages, hence they made no definite finding as to what the supposed moral damages suffered consist of. Such a conclusion would make of moral damages a penalty, which they are not, rather than a compensation for actual injury suffered, which they are intended to be. Moral damages, in other words, are not corrective or exemplary damages. 20 Nor was there error in the appealed decision in denying moral damages, not only on account of the plaintiff's failure to take the witness stand and testify to her social humiliation, wounded feelings, anxiety, etc., as the decision holds, but primarily because a breach of contract like that of defendant, not being malicious or fraudulent, does not warrant the award of moral damages under Article 2220 of the Civil Code. ... 21 Neither may private respondent recover exemplary damages since he is not entitled to moral or compensatory damages, and again because the petitioner is not shown to have acted in a wanton, fraudulent, reckless or oppressive manner. 22 Upon the same consideration, and absent any proof that petitioner refused in gross and evident bad faith to satisfy the private respondent's claim. no counsel fees should be awarded. 23 The Court is of the opinion that an award of nominal damages to private respondent in the amount of P5,000.00 is sufficient in the premises. 24

WHEREFORE, the appealed Decision is modified and the liability of petitioner is hereby declared limited solely and exclusively to the payment of P5, 000.00 as nominal damages. No pronouncement as to costs. SO ORDERED.

G.R. No. L-64398 November 6, 1990 JOSE CHING SUI YONG, petitioner, vs. INTERMEDIATE APPELLATE COURT (THIRD CIVIL CASES DIVISION) AND INTERCONTINENTAL DISTRIBUTORS (P.I.) CORPORATION, ROBERTO SUAREZ, and INTERCONTINENTAL FILM DISTRIBUTORS, (H.K.) LTD., respondents. P.M. Mortera & Associates Law Offices for petitioner. Lauro G. Sandoval for private respondents.

PADILLA, J.: This is a petition for review on certiorari of the decision of the respondent Intermediate Appellate Court (now Court of Appeals) in AC-G.R. CV No. 58527, dated 14 June 1983 1 affirming in toto the decision of the lower court rendered in favor of private respondents. The antecedent facts that gave rise to this case are as follows: Petitioner bought from a certain Norberto Concepcion for the total sum of P75,000.00 seven (7) foreign cinematographic films, as evidenced by four (4) receipts of payment duly signed by said Norberto Concepcion who was allegedly the authorized agent and representative of private respondent Intercontinental Film Distributors (P.I.) Corporation and its managing director, respondent Roberto Suarez. It was stated in the said receipts that private respondents Intercontinental Film Distributors (P.I.) Corporation (Intercontinental (P.I.), for brevity) and Roberto Suarez agreed that all the seven (7) films would be sent and delivered directly to petitioner upon their arrival in the Philippines. However, the films were not delivered to petitioner despite repeated demands, as a result of which, the latter filed an action for replevin with damages before the Court of First Instance of Rizal, Branch XXII, docketed as Civil Case No. 12578. 2

Upon petitioner's filing of the necessary bond in the amount of P150,000. 00, the court a quo issued a writ of seizure ordering the Sheriff of Manila to take immediate possession of the seven (7) films. Six (6) films were seized by the Sheriff of Manila from the Board of Censors, while the seventh film was seized by Special Sheriff Gregorio Guido. All the seven (7) cinematographic films had been delivered by Intercontinental (P.I.) to the Board of Censors prior to their seizure. Informed of the seizure of the seven (7) films by the Sheriffs, Intercontinental Film Distributors (H.K.) Ltd (Intercontinental (H.K.), for brevity) filed a third-party claim, alleging ownership and asserting the right to possess the said seven (7) cinematographic films, and stating in its claim that the value of the said films was P250,000.00. Notified by the Sheriff of the third-party claim, petitioner filed an ex-parte motion to quash the third-party claim and for the delivery of the said films to him (petitioner), instead of filing an indemnity bond as required by the Sheriff. The ex-parte motion was granted and the films were delivered to the petitioner. Subsequently, Intercontinental (H.K.) filed a motion praying to the Court that it be allowed to intervene in the case as party defendant, which motion was granted. It did intervene as defendant-intervenor and filed its answer to the complaint. After trial on the merits, the court a quo dismissed the complaint and set aside the writ of seizure it had issued earlier. The dispositive part of the lower court's decision, 3 which respondent appellate court later affirmed in toto reads as follows: WHEREFORE, judgment is rendered: 1. Dismissing plaintiff s complaint, and the writ of seizure issued by this Court in favor of the plaintiff is hereby set aside; 2. Ordering plaintiff to return to defendants and intervenor the seven (7) cinematographic films, namely, Venus in Furs; Girl with Hungry Eyes; Free Love Confidential, Cool It Baby; Mondo Mod; Secret Sex Lives of Romeo and Juliet; Mantis in Lace, in the same condition as they were taken by and delivered to plaintiff on December 22, 1969 and in the event that delivery cannot be made, plaintiff shall pay defendants and intervenor the sum of P250,000.00 representing the value of said seven (7) cinematographic films; and 3. Sentencing plaintiff to pay defendants and defendant intervenor the sum of P10,000.00 a day as damages commencing from December 23, 1969 until the aforesaid seven (7) cinematographic films are delivered or returned to defendants and defendant-intervenor or the sum of P250,000.00 is fully paid to defendants and defendant-intervenor, and to pay further the amount of P10,000.00 by way of attorney's fees. With costs of suit against the plaintiff.

SO ORDERED. As already stated, the Court of Appeals affirmed the above judgment in its entirety. Not satisfied, petitioner interposed the present petition for review, raising the following issues: (a) whether or not the plaintiff has a valid cause of action against the defendants and the defendant-intervenor; (b) whether or not Norberto Concepcion is the authorized agent and representative of the defendant Intercontinental Film Distributors (P.I.) Corporation and its Managing Director, defendant Roberto Suarez; (c) whether or not the award of damages of P10,000.00 a day commencing from December 23, 1969 until the aforesaid seven (7) cinematographic films are delivered or returned to defendants and defendant-intervenor or the sum of P250,000.00 is fully paid to defendants and defendant-intervenor and to pay further the amount of P10,000.00 by way of attorney's fees, are supported by evidence and the law on the matter. 4 At the outset, it would appear that the above-stated issues involve a review mainly of factual findings of respondent appellate court. We have repeatedly held that in a petition for review on certiorari only legal questions should be raised before this Court and that findings of fact of the Court of Appeals are conclusive on the parties and on this Court, absent any showing of grave error or abuse of discretion. 5 We note further that the issues raised and the arguments adduced by petitioner in the present petition for review are reiterations of those submitted by him to the Court of Appeals. T he first two (2) issues were resolved by the appellate court to which we agree in this wise: A study of the evidence viz a viz (sic) the arguments supporting the errors imputed to the trial court in its decision appealed from convinces Us that the trial court did not err in holding "the plaintiff-appellant as plainly has no cause of action against defendants and defendant-intervenor" as it found that Norberto Concepcion was not the duly authorized agent or representative of the Intercontinental Film Distributors (P.I.) Corporation and Roberto Suarez, the Managing Director, (who) denied having authorized Norberto Concepcion to enter into contract with the plaintiff-appellant. Let it be admitted that the cause of action of the plaintiff-appellant in his complaint for replevin (to take possession of the seven cinematographic films) is based on the alleged sales of the films in question to plaintiff-appellant by defendants thru Norberto Concepcion for the total sum of P75,000 as evidenced by Exhibits "A", "B", "C" and "D" and the alleged agency instituted by Roberto Suarez in favor of Norberto Concepcion as shown by said Exhibits.

The trial court, however, found and We agree that plaintiff-appellant failed to prove that Norberto Concepcion was the duly authorized agent or representative of the Intercontinental Films Distributors (P.I.) Corporation and Roberto Suarez. In fact, the lower court went further stating that Exhibits "A", "B", "C" and "D" are fictitious contracts, a forgery undertaken merely to promote the scheme of the plaintiff-appellant to take possession of the cinematographic films in question. On the other hand, the Intercontinental Films Distributors (H.K.) Ltd., intervenors, has established that it owns the said films. ... 6 We agree with the foregoing findings and conclusions. As private respondents correctly observed, despite petitioner's claim that he paid Norberto Concepcion, the alleged agent of Roberto Suarez, the sum of P75,000.00 as evidenced by the four (4) receipts of payment, and despite the trial court's suggestion that Norberto Concepcion be included as a defendant, petitioner failed to implead said Norberto Concepcion. Neither was Concepcion presented as a witness. Thus, the court a quo correctly resolved that: ... The failure of Concepcion to testify and clear the doubt that surrounded the alleged execution by Suarez of the receipt Exhibit E, considerably weakened the claim of plaintiff that defendants and defendant-intervenor sold to him the films in question for which Concepcion was duly authorized by defendant and intervenor, and the proceeds of the sale was later turned allegedly over by Concepcion to Suarez. ... 7 In short, the failure of petitioner to produce the person to whom he allegedly paid P75,000.00 for the seven (7) films, rendered his claim untenable. For, when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent lent purpose. 8 However, we resolve the third issue raised by petitioner, in his favor. The sole basis for the award of damages against the petitioner is the alleged unrealized profits of private respondents for the non-screening of the seven (7) films. We believe that respondent court committed grave abuse of discretion in arriving at the amount of P10,000.00 a day as unrealized profits suffered by private respondents due to the filing of the present action by the petitioner. As correctly averred by petitioner, the films had yet to be passed by the Board of Censors and being "bold" or so called "bomba" films, there was the probability that some scenes therein would have been cut or censored or the films totally banned, as in the case of one of the films. Besides, no document or proof was presented to prove that private respondents really lost such amount daily for non-exhibition of the films to the public by reason of the action instituted by petitioner. The amount of P10,000.00 a day as alleged unrealized profit was

arrived at by mere speculation and conjecture by respondent court. Hence, the award of damages for the anticipated loss of profits is unwarranted. It is a settled rule that in order for damages to be recovered, the best evidence obtainable by the injured party must be presented. 9 Actual or compensatory damages cannot be presumed, but must be duly proved, and proved with a reasonable degree of certainty. A court cannot rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend upon competent proof that they have been suffered and on evidence of the actual amount thereof. If the proof is flimsy and unsubstantial, no damages will be awarded. 10 WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that the award of damages in the amount of P10,000. 00 a day for alleged unrealized profits is eliminated. Costs against petitioner. SO ORDERED.

G.R. No. L-16439

July 20, 1961

ANTONIO GELUZ, petitioner, vs. THE HON. COURT OF APPEALS and OSCAR LAZO, respondents. Mariano H. de Joya for petitioner. A.P. Salvador for respondents. REYES, J.B.L., J.: This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same. The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion. The facts are set forth in the majority opinion as follows: Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 through her aunt Paula Yambot. In 1950 she became pregnant by her present husband

before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion. It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari. The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb. The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated. The dissenting Justices of the Court of Appeals have aptly remarked that: It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries. It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis. The decision appealed from is reversed, and the complaint ordered dismissed. Without costs. Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

G.R. No. 85331 August 25, 1989 KAPALARAN BUS LINE, petitioner, vs. ANGEL CORONADO, LOPE GRAJERA, DIONISIO SHINYO, and THE COURT OF APPEALS, respondents, Leopoldo M. Consunto for petitioner. Danilo S. Cruz for intervenor-appellee. Conrado Manicad for private respondents.

FELICIANO, J.: Petitioner Kapalaran Bus Line ("Kapalaran") seeks the reversal or modification of the Court of Appeals' decision in CA G.R. CV No. 12476 and the absolution of petitioner from all liability arising from the collision between one of petitioner's buses and a jeepney owned by respondent Coronado, driven by respondent Grajera and in which jeepney respondent Shinyo was a passenger. The facts of this case as found by the trial court and adopted by the Court of Appeals, are summarized in the trial court's decision and quoted in the Court of Appeals' own judgment in the following terms: The accident happened on the National Highway at 10:30 A.M. on August 2, 1982. The jeepney driven by Lope Grajera was then corning from Pila, Laguna on its way towards the direction of Sta. Cruz, traversing the old highway. As it reached the intersection where there is a traffic sign 'yield,' it stopped and cautiously treated the intersection as a "Thru Stop' street, which it is not. The KBL bus was on its way from Sta. Cruz, Laguna, driven by its regular driver Virgilio Llamoso, on its way towards Manila. The regular itinerary of the KBL bus is through the town proper of Pila, Laguna, but at times it avoids this if a bus is already fully loaded with passengers and can no longer accommodate additional passengers. As the KBL bus neared the intersection, Virgilio Llamoso inquired from his conductor if they could still accommodate passengers and learning that they were already full, he decided to bypass Pila and instead, to proceed along the national highway. Virgilio Llamoso admitted that there was another motor vehicle ahead of him.

The general rule is that the vehicle on the national highway has the right-of-way as against a feeder road. Another general rule is that the vehicle coming from the right has the right-of-way over the vehicle coming from the left. The general rules on right-of-way may be invoked only if both vehicles approach the intersection at almost the same time. In the case at bar, both roads are national roads. Also, the KBL bus was still far from the intersection when the jeepney reached the same. As testified to by Atty. Conrado L. Manicad who was driving a Mustang car coming from the direction of Sta. Cruz and proceeding towards the direction of Manila, he stopped at the intersection to give way to the jeepney driven by Grajera. Behind Manicad were two vehicles, a car of his client and another car. A Laguna Transit bus had just entered the town of Pila ahead of Atty. Manicad. The sketch marked Exhibit 'E' indicates very clearly that the jeepney had already traversed the intersection when it met the KBL bus head-on. It is also obvious that the point of impact was on the right lane of the highway which is the lane properly belonging to the jeepney. As testified to by Lope Grajera, the KBL bus ignored the stopped vehicles of Atty. Manicad and the other vehicles behind Atty. Manicad and overtook both vehicles at the intersection, therefore, causing the accident. Judging from the testimony of Atty. Conrado L. Manicad and the sketch (Exhibit 'E'), the sequence of events shows that the first vehicle to arrive at the intersection was the jeepney. Seeing that the road was clear, the jeepney which had stopped at the intersection began to move forward, and for his part, Atty. Manicad stopped his car at the intersection to give way to the jeepney. At about this time, the KBL bus was approaching the intersection and its driver was engaged in determining from his conductor if they would still pass through the town proper of Pila. Upon learning that they were already full, he turned his attention to the road and found the stopped vehicles at the intersection with the jeepney trying to cross the intersection. The KBL bus had no more room within which to stop without slamming into the rear of the vehicle behind the car of Atty. Manicad. The KBL driver chose to gamble on proceeding on its way, unfortunately, the jeepney driven by Grajera, which had the right-of-way, was about to cross the center of the highway and was directly on the path of the KBL bus. The gamble made by Llamoso did not pay off. The impact indicates that the KBL bus was travelling at a fast rate of speed because, after the collision, it did not stop; it travelled for another 50 meters and stopped only when it hit an electric post (pp. 3-4, Decision; pp. 166167, Record). 1 On 14 September 1982, Kapalaran, apparently believing that the best defense was offense, filed a complaint for damage to property and physical injuries through reckless imprudence against respondents Angel Coronado and Lope Grajera in the Regional Trial Court, Branch 27, Sta. Cruz, Laguna. Respondents answered with their own claims (counter-claims) for damages. A third-

party complaint and/or a complaint for intervention was also filed in the same case against Kapalaran by jeepney passenger Dionisio Shinyo. On 15 October 1986, after trial, the trial court rendered a judgment in favor of private respondents and ordering Kapalaran (a) to pay Angel Coronado the sum of P40,000.00 as compensation for the totally wrecked jeepney, plus the sum of P5,000.00 as attorney's fees and litigation expenses, and (b) to Dionisio Shinyo the sum of P35,000.00 representing the expenses incurred by said intervenor for his treatment including his car-hire, the further sum of P30,000.00 representing the expenses said defendant will incur for his second operation to remove the intramedulary nail from his femur, the additional sum of P50,000.00 to serve as moral damages for the pain and suffering inflicted on said defendant, plus the sum of P10,000.00 in the concept of exemplary damages to serve as a deterrent to others who, like the plaintiff, may be minded to induce accident victims to perjure themselves in a sworn statement, and the sum of P15,000.00 as attorney's fees and litigation expenses. From the above judgment, Kapalaran appealed to the Court of Appeals assailing the trial court's findings on the issue of fault and the award of damages. The Court of Appeals, on 28 June 1988, affirmed the decision of the trial court but modified the award of damage s by setting aside the grant of exemplary damages as well as the award of attomey's fee and litigation expenses made to Dionisio Shinyo. 2 This decision of the Court of Appeals is now before us on a Petition for Review, a motion for reconsideration by Kapalaran having been denied by that court on 13 October 1988. Kapalaran assails the findings of fact of the Regional Trial Court and of the Court of Appeals, and insists before this Court that respondent Grajera, driver of the jeepney, was at fault and not the driver of Kapalaran's bus. It must be remembered that it is not the function of this Court to analyze and weigh evidence presented by the parties all over again and that our jurisdiction is in principle limited to reviewing errors of law that might have been committed by the Court of Appeals. Kapalaran has made no compelling showing of any misapprehension of facts on the part of the Court of Appeals that would require us to review and overturn the factual findings of that court. On the contrary, examination of the record shows that not only are the conclusions of fact of the Court of Appeals and the trial court on who the bus driver or the jeepney driver had acted negligently and was at fault in the collision of their vehicles, amply supported by the evidence of record, but also that Kapalaran's bus driver was grossly negligent and had acted wantonly and in obvious disregard of the applicable rules on safety on the highway. Kapalaran's driver had become aware that some vehicles ahead of the bus and travelling in the same direction had already stopped at the intersection obviously to give way either to

pedestrians or to another vehicle about to enter the intersection. The bus driver, who was driving at a speed too high to be safe and proper at or near an intersection on the highway, and in any case too high to be able to slow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose to swerve to the left lane and overtake such preceding vehicles, entered the intersection and directly smashed into the jeepney within the intersection. Immediately before the collision, the bus driver was actually violating the following traffic rules and regulations, among others, in the Land Transportation and Traffic Code, Republic Act No. 4136, as amended: Sec. 35. Restriction as to speed. (a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and or any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead. xxx xxx xxx Sec. 41. Restrictions on overtaking and passing. _1 (a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking or passing another vehicle, proceeding in the same direction, unless such left side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in safety. xxx xxx xxx (c) The driver of a vehicle shall not overtake or pass any other vehicle proceeding in the same direction, at any railway grade crossing, or at any intersection of highways, unless such intersection or crossing is controlled by traffic signal, or unless permitted to do so by a watchman or a peace officer, except on a highway having two or more lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle on the right. Nothing in this section shall be construed to prohibit a driver overtaking or passing, upon the right, another vehicle which is making or about to make a left turn. xxx xxx xxx (Emphasis supplied) Thus, a legal presumption arose that the bus driver was negligent 3 a presumption Kapalaran was unable to overthrow.

Petitioner's contention that the jeepney should have stopped before entering the "Yintersection" because of the possibility that another vehicle behind the cars which had stopped might not similarly stop and might swerve to the left to proceed to the highway en route to Manila, is more ingenious than substantial. It also offers illustration of the familiar litigation tactic of shifting blame from one's own shoulders to those of the other party. But the jeepney driver, seeing the cars closest to the intersection on the opposite side of the highway come to a stop to give way to him, had the right to assume that other vehicles further away and behind the stopped cars would similarly come to a stop and not seek illegally to overtake the stopped vehicles and come careening into the intersection at an unsafe speed. 4 Petitioner's bus was still relatively far away from the intersection when the jeepney entered the same; the bus collided head on into the jeepney because the bus had been going at an excessively high velocity immediately before and at the time of overtaking the stopped cars, and so caught the jeepney within the intersection. It was also the responsibility of the bus driver to see to it, when it overtook the two (2) cars ahead which had stopped at the intersection, that the left lane of the road within the intersection and beyond was clear. The point of impact was on the left side of the intersection (the light lane so far as concerns the jeepney coming from the opposite side), which was precisely the lane or side on which the jeepney had a right to be. Petitioner Kapalaran also assails the award of moral damages against itself, upon the ground that its own bus driver, third-party defendant, was apparently not held liable by the trial court . 5 Hence, Kapalaran argues that there was no justification for holding it, the employer, liable for damages, considering that such liability was premised upon the bus driver's negligence and that petitioner "as mere employer" was not guilty of such negligence or imprudence. 6 This contention in thoroughly unpersuasive. The patent and gross negligence on the part of the petitioner Kapalaran's driver raised the legal presumption that Kapalaran as employer was guilty of negligence either in the selection or in the supervision of its bus driver, 7 Where the employer is held liable for damages, it has of course a right of recourse against its own negligent employee. If petitioner Kapalaran was interested in maintaining its right of recourse against or reimbursement from its own driver, 8 it should have appealled from that portion of the trial court's decision which had failed to hold the bus driver is not "merely subsidiary," and is not limited to cases where the employee "cannot pay his liability" nor are private respondents compelled frist to proceed against the bus driver. The liability of the employer under Article 2180 of the Civil Code is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee. 9 So far as the record shows, petitioner Kapalaran was unable to rebut the presumption of negligence on its own part. The award of moral damages against petitioner Kapalaran is not only entirely in order; it is also quite modest consideirng Dionisio Shinyo's death during the pendency of this petition, a death hastened by, if not directly due to, the grievous injuries sustained by him in the violent collision. The Court of Appeals deleted the award of exemplary damages which the trial court had granted in order "to serve as a deterrent to others who, like the plaintiff [Kapalaran], may be minded to induce accident victims to perjure themselves in a sworn statement." The Court of Appeals held that there was no basis for this award of exemplary damages, stating that it was

not "such a reprehensible act to try to gather witnesses for one's cause" and that there was no evidence of use of "presure or influence" to induce the accident victims to perjure themselves While that might have been so, both the trial court and the Court of Appeals overlook another and far more compelling basis for the award of exemplary damages against petitioner Kapalaran in this case. There is no question that petitioner's bus driver was grossly and very probably criminally negligent in his reckless disregard of the rights of other vehicles and their pasangers and of pedestrian as well The Court is entitled to take judicial notice of the gross negligence and the appalling disregard of the physical safety and property of others so commonly exhibited today by the drivers of passanger bussses and similar vehicles on our highways. The law requires petitioner as common carrier to exercise extraordinary diligence incarrying and transporting their passanger safely "as far as human care and foresight can proved, using the utmost diligence of very cautious persons, with due regard for all circumstances." 10 In requiring the highest possible degree of diligence from common carriers and creating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers. 11 While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of cargo carried by a common carrier, they are not only persons that the law seeks to benefit. For if common carriers carefully observed the statutory standard of extraordinary diligence in respect of of their own passengers, they cannot help but simultaneously benefit pedestrians and the owners and passengers of other vehicles who are equally entitled to the safe and convenient use of our roads and highways. 12 The law seeks to stop and prevent the slaughter and maiming of people (whether passengers or not) and the destruction of property (whether freight or not) on our highways by buses, the very size and power of which seem often to inflame the minds of their drivers. Article 2231 of the Civil Code explicitly authorizes the imposition of exemplary damages in cases of quasi-delicts "if the defendant acted with gross negligence." Thus we believe that the award of exemplary damages by the trial court was quite proper, although granted for the wrong reason, and should not only be restored but augmented in the present case. The Court is aware that respondent Shinyo did not file a separate petition for review to set aside that portion of the Court of Appeals'decision which deleted the grant by the trial court of exemplary damages. It is settled, however, that issues which must be resolved if substantial justice is to be rendered to the parties, may and should be considered and decided by this Court even if those issues had not been explicitly raised by the party affected. 13 In the instant case, it is not only the demands of substantial justice but also the compelling considerations of public policy noted above, which impel us to the conclusion that the trial court's award of exemplary damages was erroneously deleted and must be restored and brought more nearly to the level which public policy and substantial justice require. In much the same vein, we believe that the award by the trial court of P15,000.00 as attorney's fees and litigation expenses, deleted by the Court of Appeals, should similarly be restored, being both authorized by law 14 and demanded by substantial justice in the instant case. WHEREFORE, the Petition for Review on certiorari is DENIED for lack of merit and the Decision of the Court of Appeals is hereby AFFIRMED, except (1) that the award of exemplary damages to Dionisio Shinyo shall be restored and increased from P10,000.00 to P25,000.00, and (2) that

the grant of attorney's fees and litigation expenses in the sum of P15,000.00 to Dionisio Shinyo shall similarly be restored. Costs against petitioner. SO ORDERED.

G.R. No. 82146 January 22, 1990 EULOGIO OCCENA, petitioner, vs. HON. PEDRO M. ICAMINA, Presiding Judge, Branch X of the Regional Trdswqial Court Sixth Judicial Region, San Jose, Antique; THE PEOPLE OF THE PHILIPPINES, represented by the Honorable Provincial Fiscal of Antique; and CRISTINA VEGAFRIA, respondents. Comelec Legal Assistance Office for petitioner. Comelec Legal Assistance Officer for private respondent.

FERNAN, C.J.: On May 31, 1979, herein petitioner Eulogio Occena instituted before the Second Municipal Circuit Trial Court of Sibalom, San Remigio Belison, Province of Antique, Criminal Case No. 1717, a criminal complaint for Grave Oral Defamation against herein private respondent Cristina Vegafria for allegedly openly, publicly and maliciously uttering the following insulting words and statements: "Gago ikaw nga Barangay Captain, montisco, traidor, malugus, Hudas," which, freely translated, mean: "You are a foolish Barangay Captain, ignoramus, traitor, tyrant, Judas" and other words and statements of similar import which caused great and irreparable damage and injury to his person and honor. Private respondent as accused therein entered a plea of not guilty. Trial thereafter ensued, at which petitioner, without reserving his right to file a separate civil action for damages actively intervened thru a private prosecutor. After trial, private respondent was convicted of the offense of Slight Oral Defamation and was sentenced to pay a fine of Fifty Pesos (P50.00) with subsidiary imprisonment in case of insolvency and to pay the costs. No damages were awarded to petitioner in view of the trial court's opinion that "the facts and circumstances of the case as adduced by the evidence do not warrant the awarding of moral damages." 1 Disagreeing, petitioner sought relief from the Regional Trial Court, which in a decision dated March 16, 1987 disposed of petitioner's appeal as follows:

IN VIEW OF ALL THE FOREGOING, the civil aspect of the lower court's decision of April 20, 1981 subject of this appeal, for lack of merit, is hereby DENIED. After the decision shall have become final, remand the records of this case to the court of origin, Second Municipal Circuit Trial Court of Sibalom, San RemigioBelison, Antique, for the execution of its decision on the criminal aspect. SO ORDERED. 2 Petitioner is now before us by way of a petition for review on certiorari seeking to annul the RTC decision for being contrary to Article 100 of the Revised Penal Code providing that every person criminally liable for a felony is also civilly liable, and Article 2219 of the New Civil Code providing that moral damages may be recovered in libel, slander or any other form of defamation. He submits that public respondent RTC erred in relying on the cases of Roa vs. de la Cruz, 107 Phil. 10 and Tan vs. Standard Vacuum Oil Co., et al., 91 Phil. 672 cited therein. He differentiates said cases from the case at bar by saying that in the case of Roa, the decision of the trial court had become final before Maria C. Roa instituted a civil action for damages; whereas in the instant case, the decision of the trial court has not yet become final by reason of the timely appeal interposed by him and no civil action for damages has been instituted by petitioner against private respondent for the same cause. Tan, on the other hand, contemplates of two actions, one criminal and one civil, and the prosecution of the criminal case had resulted in the acquittal of the accused, which is not the situation here where the civil aspect was impliedly instituted with the criminal action in accordance with Section 1, Rule 111, of the Rules of Court. Private respondent for her part argues that the decision of the trial court carries with it the final adjudication of her civil liability. Since petitioner chose to actively intervene in the criminal action without reserving his right to file a separate civil action for damages, he assumed the risk that in the event he failed to recover damages he cannot appeal from the decision of the lower court. We find merit in the petition. The issues confronting us in the instant petition is whether or not the decision of the Second Municipal Trial Court of Sibalom, San-Remigio-Belison, Province of Antique constitutes the final adjudication on the merits of private respondent's civil liability; and whether or not petitioner is entitled to an award of damages arising from the remarks uttered by private respondent and found by the trial court to be defamatory. The decision of the Municipal Circuit Trial Court as affirmed by the Regional Trial Court in Criminal Case No. 1709 cannot be considered as a final adjudication on the civil liability of private respondent simply because said decision has not yet become final due to the timely appeal filed by petitioner with respect to the civil liability of the accused in said case. It was only the unappealed criminal aspect of the case which has become final.

In the case of People vs. Coloma, 105 Phil. 1287, we categorically stated that from a judgment convicting the accused, two (2) appeals may, accordingly, be taken. The accused may seek a review of said judgment, as regards both civil and criminal actions; while the complainant may appeal with respect only to the civil action, either because the lower court has refused to award damages or because the award made is unsatisfactory to him. The right of either to appeal or not to appeal in the event of conviction of the accused is not dependent upon the other. Thus, private respondent's theory that in actively intervening in the criminal action, petitioner waived his right to appeal from the decision that may be rendered therein, is incorrect and inaccurate. Petitioner may, as he did, appeal from the decision on the civil aspect which is deemed instituted with the criminal action and such appeal, timely taken, prevents the decision on the civil liability from attaining finality. We tackle the second issue by determining the basis of civil liability arising from crime. Civil obligations arising from criminal offenses are governed by Article 100 of the Revised Penal Code which provides that "(E)very person criminally liable for a felony is also civilly liable," in relation to Article 2177 of the Civil Code on quasi-delict, the provisions for independent civil actions in the Chapter on Human Relations and the provisions regulating damages, also found in the Civil Code. Underlying the legal principle that a person who is criminally liable is also civilly liable is the view that from the standpoint of its effects, a crime has dual character: (1) as an offense against the state because of the disturbance of the social order; and (2) as an offense against the private person injured by the crime unless it involves the crime of treason, rebellion, espionage, contempt and others wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured by the crime. 3 In the ultimate analysis, what gives rise to the civil liability is really the obligation of everyone to repair or to make whole the damage caused to another by reason of his act or omission , whether done intentional or negligently and whether or not punishable by law. 4 In the case at bar, private respondent was found guilty of slight oral defamation and sentenced to a fine of P50.00 with subsidiary imprisonment in case of insolvency, but no civil liability arising from the felonious act of the accused was adjudged. This is erroneous. As a general rule, a person who is found to be criminally liable offends two (2) entities: the state or society in which he lives and the individual member of the society or private person who was injured or damaged by the punishable act or omission. The offense of which private respondent was found guilty is not one of those felonies where no civil liability results because either there is no offended party or no damage was caused to a private person. There is here an offended party, whose main contention precisely is that he suffered damages in view of the defamatory words and statements uttered by private respondent, in the amount of Ten Thousand Pesos (P10,000.00) as moral damages and the further sum of Ten Thousand Pesos (P10,000) as exemplary damages. Article 2219, par. (7) of the Civil Code allows the recovery of moral damages in case of libel, slander or any other form of defamation This provision of law establishes the right of an

offended party in a case for oral defamation to recover from the guilty party damages for injury to his feelings and reputation. The offended party is likewise allowed to recover punitive or exemplary damages. It must be remembered that every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. And malice may be inferred from the style and tone of publication 5 subject to certain exceptions which are not present in the case at bar. Calling petitioner who was a barangay captain an ignoramus, traitor, tyrant and Judas is clearly an imputation of defects in petitioner's character sufficient to cause him embarrassment and social humiliation. Petitioner testified to the feelings of shame and anguish he suffered as a result of the incident complained of. 6 It is patently error for the trial court to overlook this vital piece of evidence and to conclude that the "facts and circumstances of the case as adduced by the evidence do not warrant the awarding of moral damages." Having misapprehended the facts, the trial court's findings with respect thereto is not conclusive upon us. From the evidence presented, we rule that for the injury to his feelings and reputation, being a barangay captain, petitioner is entitled to moral damages in the sum of P5,000.00 and a further sum of P5,000.00 as exemplary damages. WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court is hereby MODIFIED and private respondent is ordered to pay petitioner the amount of P5,000.00 as moral damages and another P5,000.00 as exemplary damages. Costs against private respondent. SO ORDERED.

G.R. No. 84362 July 7, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PEREZ alias "ROGELIO PEREZ", accused- appellant. The Solicitor General for plaintiff-appellee. Bertolome P. Reus and Martina L. Millan for accused-appellant.

FELICIANO, J.:

Accused-appellant Fernando Perez was charged before the Regional Trial Court of Roxas City with the crime of rape committed as follows: That on or about the 3rd day of June, 1987, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the above accused, armed with a knife and with the use of force and intimidation, did then and there wilfully, unlawfully and feloniously, have carnal knowledge [of] one CHRISTINE DORADO, an 8-year old girl, against the will of the said Christine Dorado, in the following manner; that the accused grabbed the said Christine Dorado, pointing a knife at her body and telling her not to shout otherwise, he will kill her, removing her underpants, making her to spread her legs, lie with and have carnal knowledge [of] Christine Dorado against her will. CONTRARY TO LAW. 1 After trial, the trial court rendered a decision dated 6 June 1988, the dispositive portion of which reads as follows: WHEREFORE, in view of all the foregoing this Court finds the accused Fernando Perez, alias 'Rogelio Perez", GUILTY beyond reasonable doubt of the crime of Rape as defined and punished under Article 335 of the Revised Penal Code, as amended by Republic Acts No. 2632 and 4111, and sentences him to suffer imprisonment for life (reclusion perpetua) and to pay the complainant and offended party P50,000.00 in moral and exemplary damages. Pursuant to the provisions of Art. 29 of the Revised Penal Code, the accused, who is a detention prisoner, shall be credited in the service of his sentence with the full time during which he had undergone preventive imprisonment, provided he agrees voluntarily in writing to abide by the disciplinary rules imposed upon convicted prisoners. SO ORDERED. 2 The present appeal assigns the following as errors said to have been committed by the trial court: I The trial court erred in convicting accused despite failure of prosecution to present sufficient evidence to establish Identity as the rapist of Christine Dorado. II The trial court erred in convicting accused despite insufficiency of evidence to prove his guilt beyond reasonable doubt.

The facts of the case as found and summarized by the trial court are as follows: It appears from the testimony of the offended party, Christine Dorado, at 8 a girl of tender years and a Grade III pupil, that at about 7 o'clock in the evening of June 3, 1987, while she was alone washing some dishes on a cemented portion outside the kitchen of their house at the PHHC Housing Project in Brgy. Lawa-an, Roxas City, the accused, whom she Identified in court as her assailant, surreptitiously approached her from behind, poked a knife at her, threatened to kill her if she shouted, and then forced to lie down. When she was already lying on the ground, the accused held her by her hands, raised her skirt and forcibly removed her underwear. Then the accused forced his sex organ into her genitals. This assault inflicted upon the complainant a fresh hymenal laceration with slight bleeding at 5 o'clock position and a lacerated wound with moderate bleeding at the vaginal mucosa, as shown in the medical certificate issued by Dr. Evelyn B. Sicad who examined her at the Roxas Memorial General Hospital. According to the examining physician, there was complete penetration as the hymen was almost completely broken. This finding of the doctor was confirmed by the testimony of the young complainant herself who said that when the accused forced his sexual organ into her genitals, there was complete penetration, causing her vagina to bleed profusely and making her feel severe pain that made her cry. That the young girl bled profusely as a result of the sexual assault committed against her cannot be denied. She identified in court the pink dress she was then wearing which was full of bloodstains. She likewise identified the underwear she had on which the accused, according to her, forcibly removed, thereby tearing the garter, in order to realize his carnal desires. Before pointing in court to the accused as her assailant that fateful early evening of June 3, 1987, young Christine Dorado had twice clearly and positively Identified the accused as the man who criminally assaulted her. The first time she did so was when immediately after the arrest of the accused by the Roxas City Police he was taken to their house and then and there, in the presence of the apprehending officers and many other people, she Identified and pointed to him as her assailant. She did this again at the Roxas City Police Station in the presence of her parents and police investigators during the investigation of this case by the police. At the police station, following his Identification by the complainant, the accused admitted his guilt. 3 Appellant controverts the trial court's findings of fact and submits the following recital: [Accused Fernando Perez testified] that in the evening of June 3, 1987, he was at the house of his girlfriend located at the upper portion of Homesite, Brgy. Lawaan, Roxas City. He was working at the fishpond in Tico, Pontevedra and was brought there by Tawi Aga-in. He was apprehended at the house of his girlfriend,

Mercedita. Then he was handcuffed and brought to the house of the victim for identification, however, the victim could not recognize him. But after the victim had talked to the police, victim pointed him as her assailant. He was then brought to the police station where he was manhandled and forced him to admit that he raped the victim. He fainted, then they splashed water on his face and after regaining consciousness, he was made to stand and was hit by the butt of an armalite on his forehead. He was forced to admit the crime because he could not withstand the maltreatment. He has never been accused of rape or acts of lasciviousnessous. 4 The appellant principally contends that there is no evidence sufficient to show that his identity was fully established by prosecution; that the identification made by the victim of the appellant as her rapist was not made "spontaneously." 5 This, appellant contends, is shown by testimony of the victim herself, which went as follows: CROSS EXAMINATION: ATTY. CONANAN: Q When for the first time did you meet the accused Fernando Perez in this case? COURT: After June 3 or before, because she mentioned that she had not met him before June 3. ATTY. CONANAN: Q After June 3, 1987? A When he was brought to the Police Station. Q Were you there at the Police Station when he was brought? FISCAL POSADAS: Precisely, your Honor. COURT: Witness may answer. A Yes sir. ATTY. CONANAN:

Q Why were you there? A Because the police ordered me to be there, sir. Q Was it not a fact that accused Fernando Perez was brought to your house before he was brought to the Police Station? A He was brought to our house, sir. Q And when he was brought to your house, you do not know him? A No, sir. Q And then after that he was brought to the Police Station together with you and your mother? A Yes, sir. Q Now, since you were there at the police station, what did the police do with the accused Fernando Perez? A He was manhandled sir. xxx xxx xxx Q And he was manhandled and castigated by the policemen and the accused Perez then acknowledged that he was the one who raped you? A Yes, sir. Q And it was the first time that you knew that he was the one who raped you because he told you that he was the one who raped you after he was castigated by the police? A Yes, sir. xxx xxx xxx COURT: Q But while he was in your house, you did not point to him? A I did your Honor because the Police asked to point to him your Honor.

Q While there in your house? A Yes, your Honor. Q While there in your house, did the accused admit that he was the one who raped you? A No, he did not your Honor. Q And it was only in the Police Station that he admitted? A After he was manhandled, he admitted before the Police your Honor. 6 From the aforequoted testimony the defense suggests that the victim did not even recognize the accused as her assailant when the latter was first brought to her residence; that she pointed to him as the rapist only after the police asked her to do so; that the victim only knew that the accused was her attacker when the latter admitted having committed the crime. 7 Apropos the allegation that Christine Dorado had not clearly identified the appellant as her assailant, the trial court found that Christine had on two occasions unequivocably pointed to appellant as the man who had sexually assaulted her. The first time she did so was right after the arrest of appellant by the Roxas City police who immediately brought appellant to Christine's home and there, "in the presence of the apprehending officers and many other people" she pointed to him as the attacker. The second time she identified appellant was at the Police Station, in the presence of her parents and police investigators. The clarity and definiteness of Christine's pointing to appellant as her attacker are all the more impressive when it is recalled that the police had earlier presented to her three (3) other possible suspects and that she had denied the involvement of any of the three (3) in the attack upon her. 8 Appellant's contention that Christine was not in a position to have seen the face of her assailant in the course of the rape was negated by the following testimony given by Christine: Q If you could still recall Christine Dorado, what does (sic) Fernando Perez wearing at that time? A He was wearing something brown. Q Was he wearing long pants or short pants? A Long pants, sir. 9 xxx xxx xxx

Q Now, you said you know that accused as Fernando Perez, how did you know considering that it was night time? A Because there was light sir, as the 3 flourescent lamp of our neighbors were switch on and lighted his face. 10 (Emphasis supplied) Further, there is no merit to appellant's suggestion that Christine did not recognize him as the attacker when asked if she knew him at the time he was brought to her residence. An examination of victim's testimony before the lower court would show that the victim was confused by the question and that her answer thereto referred to the name of the appellant, not to his Identity as the rapist. Her testimony was as follows: Q But that time you do not know actually who was the person who raped you, isn't it? COURT: The name of the person. A I did not know him first at that time. 11 (Italics supplied) What emerges from examination of the transcript of Christine's testimony is that appellant's above suggestion was made possible principally by the weakness of the translation of the proceedings (both questions and answers) into English. The verb "to know" was used where "to see" or "to recognize" would have been more precise; "to know a person" was used where "to know the name of a person" was really meant. As against appellant's suggestion and denial, the trial court found the victim's testimony clear, definite and entitled to fun credence: ... After such a careful study and evaluation of the evidence adduced during the trial, the Court has come to the inescapable conclusion that the evidence presented by the prosecution is more credible and convincing, and thus entitled to greater weight, than that adduced by the defense. The Court, observing the demeanor and the obvious honesty and innocence of so young a victim as Christine Dorado on the witness stand, has found no reason at all to doubt the veracity of her testimony and that when she clearly, unhesitatingly and positively pointed to and identified the accused as the man who ravished her near the kitchen of their house in the early evening of June 3, 1987, she was telling the truth, the whole truth, and nothing but the truth. The fact that the young girl admitted that it was only at the time of the incident that she saw the accused for the first time and that she did not know him before does not in any way diminish the weight that should be given to her clear and convincing testimony. The Court

is convinced that the girl is quite sure of the identity of the accused, so much so that when several suspects were presented to her by the police for Identification she readily told the police that the culprit was not one of them. It was only when the herein accused was brought before her that she was able to tell the police that they had finally found the man they were looking for. 12 That an innocent eight-year old child would impute a crime as serious as the one at bar to a person she had never met before the attack, if indeed he had not assaulted her, strains belief excessively. The further suggestion that the child may have been influenced by her parents and the police to make a false charge must fail, absent any showing of malice or ill motive on the part of either parents or police. The testimony of Christine was moreover corroborated by the testimony of other witnesses: [Testimony of Mr. Ambrosio Dorado] Q Now, you said that after your daughter Christine Dorado was examined by the Nurse at the Saint Anthony Hospital, she told you that she was assaulted by someone, whom she could recognize by face, is it right? A Yes, Your Honor. Q Since then, has your daughter ever pointed to a man who allegedly assaulted her? A She said that she could only recognize the face but not his name. Q Has she ever pointed to a man after she told you that, as having criminally assaulted her? A As of now she has pointed somebody. Q That man your daughter pointed to you as having criminally assaulted her inside this room? A Yes, Your Honor. Q Will you point to him? A He is there. (Witness pointing to the accused Fernando Perez). 13 [Testimony of Norma Dorado]

ATTY. CONANAN: Q By the way, when your daughter Christine Dorado already recovered, you asked her how does the alleged rapist who raped her look like? A Yes. I asked her. Q And what was her answer? A Short and stocky fellow and had a squinting eyes. Q And in fact his hair was curly? A No, sir. xxx xxx xxx Q Mrs. Dorado, how many times did the policemen investigate you or your daughter after the alleged incident on June 3, 1987? A Twice sir. Q Was that investigation in your house in the National Housing Authority or at the Police Station? FISCAL POSADAS: I object to the word investigation on the announcer. ATTY. CONANAN: Policemen. A At the Police Station. Q And during that investigation there were already several suspects presented by the Police Station and all of them were presented to you and your daughter? A Yes, sir. Q Now, if you can still recall, how many of them? A I cannot remember. There were several of them.

Q Now, and all of them were not Identified by your daughter? A No, sir. The ones who were brought to the hospital she did not Identify. Q Now, the accused in this case Fernando Perez was apprehended several days after the alleged raped of your daughter and he was brought to your house in the National Housing Authority, Lawaan, Roxas City, can you still recall that? A Yes, sir. Q And at the time when the accused was brought to your house, your daughter was in your house? A Yes, sir. Q And you were not there according to you because you were in the well fetching water? A Yes, sir. Q Now, how far is this well where you fetch water from your house? A About one and half (1-1/2) kilometer, it is near the TELECOM Station. Q And when you arrived in your house after fetching water, the accused Fernando Perez was still in your house? A Yes, sir. Q And it was when you arrived that your daughter Christine Dorado pointed the accused as the man who raped her? A Yes, sir. 14 [Testimony of Pat. Ernesto Apruebo] A After he was booked by the Desk Officer and investigated, we brought him back to Lawa-an for Identification of the victim and the victim Dorado pointed to him as her assailant.

Q Was the accused Fernando Perez the only suspect whom you showed to the victim Christine Dorado? A There were others sir who were picked up and apprehended by Pat. Dorde. Q Do you know if Pat. Dorde showed the suspects he apprehended to the victim Christine Dorado? A Yes, he did but the victim did not point to them as her assailant. xxx xxx xxx Q Do you know if being investigated the victim Christine Dorado pointed to the accused as her assailant? A Yes, she did your Honor when Pat. Olendo asked her to Identify the accused. Q Did you actually see the victim point to her assailant in the Roxas City Police Station? A Yes, your Honor. 15 (Emphasis supplied) The trial court found the above-quoted testimonies credible and convincing. It is firmly settled doctrine that the finding of the trial court, which had the inestimable advantage of observing the detailed demeanor of the witnesses, are entitled to great respect. 16 We find no reason at all to doubt the findings of the trial court here. It must be noted that these witnesses had no known reason falsely to impute a serious charge against the appellant. As held by this Court in People v. Patog, 17 "[W]here there is no evidence and nothing to indicate the principal witness for the prosecution was [moved] by improper motives the presumption is that he was not so [moved] and his testimony is entitled to full faith and credit." Appellant also put up the defense of alibi. He claimed that early in the evening of 3 June 1987, at about the time the rape was committed, he was visiting his girlfriend, Mercedita de la Cruz, in her house "in the upper and hilly portion of the PHHC Housing Project where, incidentally, the house of the offended party's parents was also located." 18 The trial court disposed of this defense quickly and decisively: ... Where the crime was committed could hardly be a few hundred meters away from Mercedita's house. Being familiar with the place, the Court takes judicial notice of the fact that the PHHC Housing Project in this City is laced with good, all-weather roads. It is not a big housing complex, with an area of a few hectares only, and it would not take a man more than 30 minutes to walk [at] ordinary

pace from one end to the other. So from where he said he was at the time, it would have taken the accused only a few minutes to reach the offended party's house. It was that near and accessible. 19 As the trial court noted, appellant had himself testified that on the evening when Christine Dorado was sexually assaulted, he was "in the vicinity of the crime scene (sic) and not in a distant town." 20 It is also contended by appellant that the trial court disregarded his constitutional light against self-incrimination, when it held that: ... the accused has been positively identified by the offended party as the perpetrator of the crime and who, in fact, has admitted his culpability in the presence of a number of witnesses. 21 Appellant claims, predictably, that he was forced to admit the crime imputed to him because he could no longer endure the brutalities inflicted upon him by the police authorities; that he was not assisted by counsel when he made said admission; that such maltreatment was even unqualifiedly attested to by the victim herself It is argued that the trial court gravely erred when it appreciated and admitted said admission as evidence against the appellant. The foregoing allegation need not detain us for long. The case against appellant herein was not founded solely nor even principally on the said admission but rather on the positive Identification of the appellant by victim. The basis of the trial court's finding of guilt was not the said admission but the evidence adduced by the prosecution quite independently of that admission. In fact, in its decision, the court made only a passing reference to the admission appellant now attacks. Appellant tries to make capital of the testimony of Christine Dorado apparently attesting to the fact of the said forced admission. Assuming arguendo that appellant had indeed been made to admit to the crime by the exercise of force and intimidation by the police, it should be noted that even before said admission was given, the victim had already positively Identified him as her assailant. Appellant's extrajudicial confession may and should be disregarded, if, as here, the other evidence submitted by the prosecution is sufficient to prove his guilt beyond reasonable doubt. 22 In sum, we agree with the trial court that the guilt of the appellant has been proven beyond reasonable doubt. The sexual violence inflicted upon the eight-year old child is a particularly appalling outrage. The trauma sustained by her is not merely physical and may be expected to remain with her for a long, long time, possibly for life. We believe that in this case, the victim is entitled to the heightened level of moral and exemplary damages that the trial court awarded her P50,000.00. WHEREFORE, the judgment of the trial court is AFFIRMED in its totality. Costs against appellant.

SO ORDERED.

G.R. No. 116617. November 16, 1998]

METRO MANILA TRANSIT CORPORATION (MMTC), PEDRO A. MUSA, CONRADO TOLENTINO, FELICIANA CELEBRADO and THE GOVERNMENT SERVICE INSURANCE SYSTEM, petitioners, vs. COURT OF APPEALS, SPS. RODOLFO V. ROSALES and LILY ROSALES, respondents.

[G.R. No. 126395. November 16, 1998]

RODOLFO V. ROSALES and LILY R. ROSALES, petitioners, vs. THE COURT OF APPEALS, METRO MANILA TRANSIT CORPORATION (MMTC), PEDRO A. MUSA, CONRADO TOLENTINO, FELICIANA CELEBRADO and THE GOVERNMENT SERVICE INSURANCE SYSTEM, respondents. DECISION MENDOZA, J.: These are appeals brought, on the one hand, by the Metro Manila Transit Corporation (MMTC) and Pedro Musa and, on the other, by the spouses Rodolfo V. Rosales and Lily R. Rosales from the decision,i dated August 5, 1994, of the Court of Appeals, which affirmed with modification the judgment of the Regional Trial Court of Quezon City holding MMTC and Musa liable to the spouses Rosales for actual, moral, and exemplary damages, attorneys fees, and the costs of suit for the death of the latters daughter. MMTC and Musa in G.R. No. 116617 appeal insofar as they are held liable for damages, while the spouses Rosales in G.R. No. 126395 appeal insofar as the amounts awarded are concerned. The facts are as follows: MMTC is the operator of a fleet of passenger buses within the Metro Manila area. Musa was its driver assigned to MMTC Bus No. 27. The spouses Rosales were parents of Liza Rosalie,

a third-year high school student at the University of the Philippines Integrated School. At around a quarter past one in the afternoon of August 9, 1986, MMTC Bus No. 27, which was driven by Musa, hit Liza Rosalie who was then crossing Katipunan Avenue in Quezon City. An eye witness said the girl was already near the center of the street when the bus, then bound for the south, hit her.ii She fell to the ground upon impact, rolled between the two front wheels of the bus, and was run over by the left rear tires thereof.iii Her body was dragged several meters away from the point of impact. Liza Rosalie was taken to the Philippine Heart Center,iv but efforts to revive her proved futile. Pedro Musa was found guilty of reckless imprudence resulting in homicide and sentenced to imprisonment for a term of 2 years and 4 months, as minimum, to 6 years, as maximum, by the Regional Trial Court of Quezon City.v The trial court found: All told, this Court, therefore, holds that the accused, who was then the driver of MMTC Bus No. 027, is criminally responsible for the death of the girl victim in violation of Article 365(2) of the Revised Penal Code. For, in the light of the evidence that the girl victim was already at the center of the Katipunan Road when she was bumped, and, therefore, already past the right lane when the MMTC Bus No. 027 was supposed to have passed; and, since the said bus was then running at a speed of about 25 kilometers per hour which is inappropriate since Katipunan road is a busy street, there is, consequently, sufficient proof to show that the accused was careless, reckless and imprudent in the operation of his MMTC Bus No. 027, which is made more evident by the circumstance that the accused did not blow his horn at the time of the accident, and he did not even know that he had bumped the girl victim and had ran over her, demonstrating thereby that he did not exercise diligence and take the necessary precaution to avoid injury to persons in the operation of his vehicle, as, in fact, he ran over the girl victim who died as a result thereof.vi The spouses Rosales filed an independent civil action for damages against MMTC, Musa, MMTC Acting General Manager Conrado Tolentino, and the Government Service Insurance System (GSIS). They subsequently amended their complaint to include Feliciana Celebrado, a dispatcher of the MMTC, as a defendant therein. The counsel of MMTC and Musa attempted to introduce testimony that Musa was not negligent in driving Bus No. 27 but was told by the trial judge: COURT: That is it. You can now limit your question to the other defendant here but to retry again the actual facts of the accident, this Court would not be in the position. It would be improper for this Court to make any findings with respect to the negligence of herein driver. You ask questions only regarding the civil aspect as to the other defendant but not as to the accused.vii The counsel submitted to the ruling of the court.viii In a decision rendered on March 6, 1990, the Regional Trial Court of Quezon City found MMTC and Musa guilty of negligence and ordered them to pay damages and attorneys fees , as

follows: WHEREFORE, foregoing premises considered, judgment is hereby rendered ordering defendant Metro Manila Transit Corporation primarily and defendant Pedro Musa subsidiarily liable to plaintiffs-spouses Rodolfo V. Rosales and Lily R. Rosales as follows: 1. Actual damages in the amount of P150,000.00; 2. Moral damages in the amount of P500,000.00; 3. Exemplary damages in the amount of P100,000.00; 4. Attorneys fees in the amount of P50,000.00; and 5. Costs of suit.ix Both parties appealed to the Court of Appeals. On August 5, 1994, the Court of Appeals affirmed the decision of the trial court with the following modification: WHEREFORE, except for the modification deleting the award of P150,000.00 as actual damages and awarding in lieu thereof the amount of P30,000.00 as death indemnity, the decision appealed from is, in all other aspects, hereby AFFIRMED.x The spouses Rosales filed a motion for reconsideration, which the appellate court, in a resolution, dated September 12, 1996, partly granted by increasing the indemnity for the death of Liza Rosalie from P30,000.00 to P50,000.00. Hence, these appeals. In G.R. No. 116617, MMTC and Musa assail the decision of the Court of Appeals on the following grounds: PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE COURT A QUOS DECISION PARTICULARLY IN NOT HOLDING THAT PETITIONER-APPELLANT MMTC EXERCISED THE DILIGENCE OF A GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS DRIVERS. THIS BEING THE CASE, APPELLANT MMTC IS ENTITLED TO BE ABSOLVED FROM ANY LIABILITY OR AT LEAST TO A REDUCTION OF THE RECOVERABLE DAMAGES. THE PUBLIC RESPONDENT COURT OF APPEALS, JUST LIKE THE COURT A QUO, OVERLOOKED THE FACT THAT PETITIONER MMTC, A GOVERNMENT-OWNED CORPORATION, COMMITTED NO FRAUD, MALICE, BAD FAITH, NOR WANTON, FRAUDULENT, OPPRESSIVE AND MALEVOLENT ACTUATIONS AGAINST HEREIN RESPONDENTS-APPELLEES. THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE COURT A QUOS DECISION TO HOLD PETITIONER-APPELLANT MMTC PRIMARILY LIABLE TO PRIVATE RESPONDENTS-APPELLEES IN THE AMOUNT OF P500,000 AS MORAL DAMAGES, P100,000 AS EXEMPLARY DAMAGES AND P30,000 BY WAY OF DEATH INDEMNITY. THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE COURT A

QUOS DECISION IN RENDERING JUDGMENT FOR ATTORNEYS FEES IN THE AMOUNT OF P50,000.00 IN FAVOR OF PRIVATE RESPONDENTS-APPELLEES. On the other hand, in G.R. No. 126395, the spouses Rosales contend: The Court of Appeals erred in: First, considering that death indemnity which this Honorable Court set at P50,000.00 is akin to actual damages; Second, not increasing the amount of damages awarded; Third, refusing to hold all the defendants, now private respondents, solidarily liable. MMTC and Musa do not specifically question the findings of the Court of Appeals and the Regional Trial Court of Quezon City that Liza Rosalie was hit by MMTC Bus No. 27. Nonetheless, their petition contains discussions which cast doubts on this point.xi Not only can they not do this as the rule is that an appellant may not be heard on a question not specifically assigned as error, but the rule giving great weight, and even finality, to the factual conclusions of the Court of Appeals which affirm those of the trial court bars a reversal of the finding of liability against petitioners MMTC and Musa. Only where it is shown that such findings are whimsical, capricious, and arbitrary can they be overturned. To the contrary, the findings of both the Court of Appeals and the Regional Trial Court are solidly anchored on the evidence submitted by the parties. We, therefore, regard them as conclusive in resolving the petitions at bar. xii Indeed, as already stated, petitioners counsel submitted to the ruling of the court that the finding of the trial court in the criminal case was conclusive on them with regard to the questions of whether Liza Rosalie was hit by MMTC Bus No. 27 and whether its driver was negligent. Rather, the issue in this case turns on Art. 2180 of the Civil Code, which provides that employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The responsibility of emp loyers for the negligence of their employees in the performance of their duties is primary, that is, the injured party may recover from the employers directly, regardless of the solvency of their employees. xiii The rationale for the rule on vicarious liability has been adumbrated thus: What has emerged as the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employers enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the tort of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to

be careful in the selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely.xiv In Campo v. Camarote,xv we explained the basis of the presumption of negligence in this wise: The reason for the law is obvious. It is indeed difficult for any person injured by the carelessness of a driver to prove the negligence or lack of due diligence of the owner of the vehicle in the choice of the driver. Were we to require the injured party to prove the owners lack of diligence, the right will in many cases prove illusory, as seldom does a person in the community, especially in the cities, have the opportunity to observe the conduct of all possible car owners therein. So the law imposes the burden of proof of innocence on the vehicle owner. If the driver is negligent and causes damage, the law presumes that the owner was negligent and imposes upon him the burden of proving the contrary. Employers may be relieved of responsibility for the negligent acts of their employees within the scope of their assigned tasks only if they can show that they observed all the diligence of a good father of a family to prevent damage.xvi For this purpose, they have the burden of proving that they have indeed exercised such diligence, both in the selection of the employee who committed the quasi-delict and in the supervision of the performance of his duties. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records.xvii On the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof.xviii To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.xix In this case, MMTC sought to prove that it exercised the diligence of a good father of a family with respect to the selection of employees by presenting mainly testimonial evidence on its hiring procedure. According to MMTC, applicants are required to submit professional driving licenses, certifications of work experience, and clearances from the National Bureau of Investigation; to undergo tests of their driving skills, concentration, reflexes, and vision; and, to complete training programs on traffic rules, vehicle maintenance, and standard operating procedures during emergency cases.xx MMTCs evidence consists entirely of testimonial evidence (1) that transport supervisors are assigned to oversee field operations in designated areas; (2) that the maintenance department daily inspects the engines of the vehicles; and, (3) that for infractions of company rules there are corresponding penalties.xxi Although testimonies were offered that in the case of Pedro Musa all these precautions were followed,xxii the records of his interview, of the results of his examinations, and of his service were not presented. MMTC submitted brochures and programs of seminars for prospective employees on vehicle maintenance, traffic regulations, and driving skills and claimed that applicants are given tests to determine driving skills, concentration, reflexes, and vision,xxiii but there is no record

that Musa attended such training programs and passed the said examinations before he was employed. No proof was presented that Musa did not have any record of traffic violations. Nor were records of daily inspections, allegedly conducted by supervisors, ever presented. Normally, employers keep files concerning the qualifications, work experience, training, evaluation, and discipline of their employees. The failure of MMTC to present such documentary proof puts in doubt the credibility of its witnesses. What was said in Central Taxicab Corporation v. Ex-Meralco Employees Transportation Corporationxxiv applies to this case: This witness spoke of an affidavit of experience which a driver-applicant must accomplish before he is employed by the company, a written time schedule for each bus, and a record of the inspections and thorough checks pertaining to each bus before it leaves the car barn; yet no attempt was ever made to present in evidence any of these documents, despite the fact that they were obviously in the possession and control of the defendant company. .... Albert also testified that he kept records of the preliminary and final tests given by him as well as a record of the qualifications and experience of each of the drivers of the company. It is rather strange, therefore, that he failed to produce in court the all important record of Roberto, the driver involved in this case. The failure of the defendant company to produce in court any record or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefor by both the trial court and the opposing counsel, argues strongly against its pretensions. It is noteworthy that, in another case involving MMTC, testimonial evidence of identical content, which MMTC presented to show that it exercised the diligence of a good father of a family in the selection and supervision of employees and thus avoid vicarious liability for the negligent acts of its employees, was held to be insufficient to overcome the presumption of negligence against it. In Metro Manila Transit Corp. v. Court of Appeals, xxv this Court said: Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, or even object evidence for that matter, inasmuch as the witnesses testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. Petitioners attempt to prove its diligentissimi patris familias in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony. Having found both MMTC and its driver Pedro Musa liable for negligence for the death of Liza Rosalie on August 9, 1986, we now consider the question of damages which her parents,

the spouses Rosales, are entitled to recover, which is the subject of the appeal in G.R. No. 126395. Indemnity for Death. Art. 2206 provides for the payment of indemnity for death caused by a crime or quasi-delict. Initially fixed in said article of the Civil Code at P3,000.00, the amount of the indemnity has through the years been gradually increased based on the value of the peso. At present, it is fixed at P50,000.00.xxvi To conform to this new ruling, the Court of Appeals correctly increased the indemnity it had originally ordered the spouses Rosales to be paid from P30,000.00 to P50,000.00 in its resolution, dated September 12, 1996. Actual Damages. Art. 2199 provides that 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. The spouses Rosales are claiming actual damages in the amount of P239,245.40. However, during the trial, they submitted receipts showing that expenses for the funeral, wake, and interment of Liza Rosalie amounted only to P60,226.65 itemized as follows: xxvii Medical Attendance Funeral Services Wreaths Embalment Obituaries Interment fees Expenses during wake Mourning clothes Photography Video Coverage Printing of invitation cards TOTAL 60,226.65 P 739.65 5,100.00 2,500.00 1,000.00 7,125.00 2,350.00 14,935.00 5,000.00 3,500.00 10,000.00 7,977.00

Hence, apart from the indemnity for death, the spouses Rosales are entitled to recover the above amount as actual damages. Moral Damages. Under Art. 2206, 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. The reason for the grant of moral damages has been explained thus: . . . the award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo ante; and therefore, it must be proportionate to the suffering inflicted. The intensity of the pain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the wealth or means of the offender.xxviii

In the instant case, the spouses Rosales presented evidence of the intense moral suffering they had gone through as a result of the loss of Liza Rosalie who was their youngest child. Rodolfo Rosales recounted the place of Liza Rosalie in the family and their relationship with her in the following words: Q: Mr. Rosales, how was Liza to you as a daughter? A: Well, Liza as a daughter was the greatest joy of the family; she was our pride, and everybody loved her - all her brothers and sisters - because she was sweet and unspoiled. . . . She was soft-spoken to all of us; and she still slept with us at night although she had her own room. Sometimes in the middle of the night she would open our door and ask if she could sleep with us. So we let her sleep with us, as she was the youngest.xxix The death of Liza Rosalie left a void in their lives. Rodolfo Rosales testified on the devastating effect of the death of Liza Rosalie: Q: And after she died, what changes, if any, did you feel in your family? A: Well, there is something hollow in our family, something is missing. She used to greet me when I came home and smell if I was drunk and would tell me to dress up and take a shower before her mommy could see me. She would call me up at the office and say: Daddy, come home, please help me with my homework. Now, all these things, I am missing, you know. . . . I do not feel like going home early. Sometimes my wife would complain and ask: Where did you go? But I cannot explain to her how I feel. xxx Lily Rosales described life without Liza Rosalie thus: Q: Now, your life without Liza, how would you describe it, Dr. Rosales? A: You know it is very hard to describe. The family was broken apart. We could not go together because we remember Liza. Every time we go to the cemetery we try as much as possible not to go together. So, we go to the cemetery one at a time, sometimes, my husband and I, or my son and another one, but we never go together because we remember Liza. But before her death we would always be together, the whole family on weekends and on our days off. My husband works very hard, I also work very hard and my children go to school. They study very hard. Now we cannot go together on outings because of the absence of Liza.xxxi The spouses Rosales claim moral damages in the amount of P5,000,000.00. In People v. Teehankee, Jr.,xxxii this Court awarded P1 million as moral damages to the heirs of a seventeenyear-old girl who was murdered. This amount seems reasonable to us as moral damages for the loss of a minor child, whether he or she was a victim of a crime or a quasi-delict. Hence, we hold that the MMTC and Musa are solidarily liable to the spouses Rosales in the amount of P1,000,000.00 as moral damages for the death of Liza Rosalie. Exemplary Damages. Art. 2231 provides that exemplary damages may be recovered in cases involving quasi-delicts if the defendant acted with gross negligence. This circumstance obtains in the instant case. The records indicate that at the time of the mishap, there was a

pending criminal case against Musa for reckless imprudence resulting in slight physical injuries with another branch of the Regional Trial Court, Quezon City.xxxiii The evidence also shows that he failed to stop his vehicle at once even after eye witnesses shouted at him. The spouses Rosales claim exemplary damages in the amount of P5,000,000.00. Under the circumstances, we deem it reasonable to award the spouses Rosales exemplary damages in the amount of five hundred thousand pesos (P500,000.00). Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered when, as in the instant case, exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals,xxxiv which involved the death of a minor child in the sinking of a vessel, we held an award of P50,000.00 as attorneys fees to be reasonable. Hence, we affirm the award of attorneys fees made by the Court of Appeals to the spouses Rosales in that amount. Compensation for Loss of Earning Capacity. Art. 2206 of the Civil Code provides that in addition to the indemnity for death caused by a crime or quasi delict, 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; . . . . Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money.xxxv Evidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession.xxxvi In People v. Teehankee,xxxvii no award of compensation for loss of earning capacity was granted to the heirs of a college freshman because there was no sufficient evidence on record to show that the victim would eventually become a professional pilot.xxxviii But compensation should be allowed for loss of earning capacity resulting from the death of a minor who has not yet commenced employment or training for a specific profession if sufficient evidence is presented to establish the amount thereof. In the United States it has been observed: This raises the broader question of the proper measure of damages in death cases involving children, housewives, the old, and others who do not have market income so that there is no pecuniary loss to survivors or to the estate of the decedent. The traditional approach was to award no or merely nominal damages in such cases. . . . Increasingly, however, courts allow expert testimony to be used to project those lost earnings.xxxix Thus, in Haumersen v. Ford Motor Co.,xl the court allowed the heirs of a seven-year-old boy who was killed in a car accident to recover compensation for loss of earning capacity: Considerable evidence was presented by plaintiffs in an effort to give the jury a foundation on which to make an award. Briefly stated, this evidence showed Charles Haumersen was a seven-year-old of above average characteristics. He was described as very intelligent and all-American. He received high marks in school. He was active in church affairs and participated in recreational and athletic events, often with children older than himself. In addition, he had an unusual talent for creating numerous cartoons and other drawings, some of which plaintiffs introduced at trial. The record does not disclose passion and prejudice. The key question is whether the verdict of $100,000 has support in the evidence.

Upon analysis of the record, we conclude that we should not disturb the award. The argument for allowing compensation for loss of earning capacity of a minor is even stronger if he or she was a student, whether already training for a specific profession or still engaged in general studies. In Krohmer v. Dahl,xli the court, in affirming the award by the jury of $85,000.00 to the heirs of an eighteen-year-old college freshman who died of carbon monoxide poisoning, stated as follows: There are numerous cases that have held admissible evidence of prospective earnings of a student or trainee. . . . The appellants contend that such evidence is not admissible unless the course under study relates to a given occupation or profession and it is shown that the student is reasonably certain to follow that occupation or profession. It is true that the majority of these decisions deal with students who are studying for a specific occupation or profession. However, not one of these cases indicate that evidence of ones education as a guide to future earnings is not admissible where the student is engaged in general studies or whose education does not relate to a specific occupation. In sharp contrast with the situation obtaining in People v. Teehankee, where the prosecution merely presented evidence to show the f act of the victims graduation from high school and the fact of his enrollment in a flying school, the spouses Rosales did not content themselves with simply establishing Liza Rosalies enrollment at UP Integrated School . They presented evidence to show that Liza Rosalie was a good student, promising artist, and obedient child. She consistently performed well in her studies since grade school.xlii A survey taken in 1984 when Liza Rosalie was twelve years old showed that she had good study habits and attitudes.xliii Cleofe Chi, guidance counselor of the University of the Philippines Integrated School, described Liza Rosalie as personable, well-liked, and with a balanced personality.xliv Professor Alfredo Rebillon, a faculty member of the University of the Philippines College of Fine Arts, who organized workshops which Liza Rosalie attended in 1982 and 1983, testified that Liza Rosalie had the potential of eventually becoming an artist.xlv Professor Rebillons testimony is more than sufficiently established by th e 51 samples of Liza Rosalies watercolor, charcoal, and pencil drawings submitted as exhibits by the spouses Rosales.xlvi Neither MMTC nor Pedro Musa controverted this evidence. Considering her good academic record, extra-curricular activities, and varied interests, it is reasonable to assume that Liza Rosalie would have enjoyed a successful professional career had it not been for her untimely death. Hence, it is proper that compensation for loss of earning capacity should be awarded to her heirs in accordance with the formula established in decided casesxlvii for computing net earning capacity, to wit: Gross Net Earning Capacity
=

Necessary

Life Expectancy

Annual - Living Income Expenses

Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and the age of the deceased.xlviii Since Liza Rosalie was 16 at the time of her death, her life

expectancy was 44 more years.xlix Her projected gross annual income, computed based on the minimum wage for workers in the non-agricultural sector in effect at the time of her death,l then fixed at P37.00,li is P14,630.46.lii Allowing for necessary living expenses of fifty percent (50%) of her projected gross annual income,liii her total net earning capacity amounts to P321,870.12.liv Finally, the spouses Rosales argue that the Court of Appeals erred in absolving Conrado Tolentino, Feliciana Celebrado, and the GSIS of liability. The spouses Rosales alleged that Tolentino, as Acting General Manager of the MMTC, and Celebrado, as a dispatcher thereof, were charged with the supervision of Musa and should, therefore, be held vicariously liable under Art. 2180 of the Civil Code. With respect to the GSIS, they contend that it was the insurer in a contract for third party liability it had with the MMTC. Although the fourth paragraph of Art. 2180 mentions managers among those made responsible for the negligent acts of others, it is settled that this term is used in the said provision in the sense of employers.lv Thus, Tolentino and Celebrado cannot be held liable for the tort of Pedro Musa. In Vda. de Maglana v. Consolacion,lvi it was ruled that an insurer in an indemnity contract for third party liability is directly liable to the injured party up to the extent specified in the agreement, but it cannot be held solidarily liable beyond that amount. The GSIS admitted in its answer that it was the insurer of the MMTC for third party liability with respect to MMTC Bus No. 27 to the extent of P50,000.00.lvii Hence, the spouses Rosales have the option either to claim the said amount from the GSIS and the balance of the award from MMTC and Musa or to enforce the entire judgment against the latter, subject to reimbursement from the former to the extent of the insurance coverage.lviii One last word. The Regional Trial Court of Quezon City erred in holding MMTC primarily and Musa secondarily liable for damages arising from the death of Liza Rosalie. It was error for the appellate court to affirm this aspect of the trial courts decision. As already stated, MMTC is primarily liable for damages for the negligence of its employee in view of Art. 2180. Pursuant to Art. 2181, it can recover from its employee what it may pay. This does not make the employees liability subsidiary. It only means that if the judgment for damages is satisfied by the common carrier, the latter has a right to recover what it has paid from its employee who committed the fault or negligence which gave rise to the action based on quasi-delict.lix Hence, the spouses Rosales have the option of enforcing the judgment against either MMTC or Musa. From another point of view, Art. 2194 provides that the responsibility of two or more persons who are liable for a quasi-delict is solidary. We ruled in Gelisan v. Aldaylx that the registered owner/operator of a public service vehicle is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries sustained in the operation of said vehicle. In Baliwag Transit, Inc. v. Court of Appealslxiit was held that to escape solidary liability for a quasi-delict committed by an employee, the employer must adduce sufficient proof that it exercised such degree of care. Finally, we held in the recent case of Philtranco Service Enterprises, Inc. v. Court of Appealslxii that the liability

of the registered owner of a public service vehicle . . . for damages arising from the tortious acts of the driver is primary, direct, and joint and several or solidary with the driver. WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED holding the Metro Manila Transit Corporation and Pedro Musa jointly and severally liable for the death of Liza Rosalie R. Rosales and ORDERING them as such to pay to the spouses Rodolfo V. Rosales and Lily R. Rosales the following amounts: 1) death indemnity in the amount of fifty thousand pesos (P50,000.00); 2) actual damages in the amount of sixty thousand two hundred twenty six pesos and sixty five centavos (P60,226.65); 3) moral damages in the amount of one million pesos (P1,000,000.00); 4) exemplary damages in the amount of five hundred thousand pesos (P500,000.00); 5) attorneys fees in the amount of fifty thousand pesos (P50,000.00); 6) compensation for loss of earning capacity in the amount of three hundred twentyone thousand eight hundred seventy pesos and twelve centavos (P321,870.12); and 7) the costs of suit. SO ORDERED.

G.R. No. L-25499 February 18, 1970 VILLA REY TRANSIT, INC., petitioner, vs. THE COURT OF APPEALS, TRINIDAD A. QUINTOS, PRIMA A. QUINTOS, AND JULITA A. QUINTOS, respondents. Laurea and Pison for petitioner. Bonifacio M. Abad, Jr. for respondents.

CONCEPCION, C.J.: Petitioner, Villa Rey Transit, Inc., seeks the review by certiorari of a decision of the Court of Appeals affirming that of the Court of First Instance of Pangasinan. The basic facts are set forth in said decision of the Court of Appeals, from which We quote:

At about 1:30 in the morning of March 17, 1960, an Izuzu First Class passenger bus owned and operated by the defendant, bearing Plate No. TPU-14871Bulacan and driven by Laureano Casim, left Lingayen, Pangasinan, for Manila. Among its paying passengers was the deceased, Policronio Quintos, Jr. who sat on the first seat, second row, right side of the bus. At about 4:55 o'clock a.m. when the vehicle was nearing the northern approach of the Sadsaran Bridge on the national highway in barrio Sto. Domingo, municipality of Minalin, Pampanga, it frontally hit the rear side of a bullcart filled with hay. As a result the end of a bamboo pole placed on top of the hayload and tied to the cart to hold it in place, hit the right side of the windshield of the bus. The protruding end of the bamboo pole, about 8 feet long from the rear of the bullcart, penetrated through the glass windshield and landed on the face of Policronio Quintos, Jr. who, because of the impact, fell from his seat and was sprawled on the floor. The pole landed on his left eye and the bone of the left side of his face was fractured. He suffered other multiple wounds and was rendered unconscious due, among other causes to severe cerebral concussion. A La Mallorca passenger bus going in the opposite direction towards San Fernando, Pampanga, reached the scene of the mishap and it was stopped by Patrolman Felino Bacani of the municipal police force of Minalin who, in the meantime, had gone to the scene to investigate. Patrolman Bacani placed Policronio Quintos, Jr. and three other injured men who rode on the bullcart aboard the La Mallorca bus and brought them to the provincial hospital of Pampanga at San Fernando for medical assistance. Notwithstanding such assistance, Policronio Quintos, Jr. died at 3:15 p.m. on the same day, March 17, 1960, due to traumatic shock due to cerebral injuries. The private respondents, Trinidad, Prima and Julita, all surnamed Quintos, are the sisters and only surviving heirs of Policronio Quintos Jr., who died single, leaving no descendants nor ascendants. Said respondents herein brought this action against herein petitioner, Villa Rey Transit, Inc., as owner and operator of said passenger bus, bearing Plate No. TPU-14871Bulacan, for breach of the contract of carriage between said petitioner and the deceased Policronio Quintos, Jr., to recover the aggregate sum of P63,750.00 as damages, including attorney's fees. Said petitioner defendant in the court of first instance contended that the mishap was due to a fortuitous event, but this pretense was rejected by the trial court and the Court of Appeals, both of which found that the accident and the death of Policronio had been due to the negligence of the bus driver, for whom petitioner was liable under its contract of carriage with the deceased. In the language of His Honor, the trial Judge: The mishap was not the result of any unforeseeable fortuitous event or emergency but was the direct result of the negligence of the driver of the defendant. The defendant must, therefore, respond for damages resulting from its breach of contract for carriage. As the complaint alleged a total damage of only P63,750.00 although as elsewhere shown in this decision the damages for wake and burial expenses, loss of income, death of the victim, and attorneys fee reach the aggregate of P79,615.95, this Court finds it just that said damages be

assessed at total of only P63,750.00 as prayed for in plaintiffs' amended complaint. The despositive part of the decision of the trial Court reads: WHEREFORE, judgment is hereby rendered ordering the defendant to pay to the plaintiffs the amount of P63,750.00 as damages for breach of contract of carriage resulting from the death of Policronio Quintos, Jr. which, as above indicated, was affirmed by the Court of Appeals. Hence, the present petition for review on certiorari, filed by Villa Rey Transit, Inc. The only issue raised in this appeal is the amount of damages recoverable by private respondents herein. The determination of such amount depends, mainly upon two (2) factors, namely: (1) the number of years on the basis of which the damages shall be computed and (2) the rate at which the losses sustained by said respondents should be fixed. The first factor was based by the trial court the view of which was concurred in by the Court of Appeals upon the life expectancy of Policronio Quintos, Jr., which was placed at 33-1/3 years he being over 29 years of age (or around 30 years for purposes of computation) at the time of his demise by applying the formula (2/3 x [80-301 = life expectancy) adopted in the American Expectancy Table of Mortality or the actuarial of Combined Experience Table of Mortality. Upon the other hand, petitioner maintains that the lower courts had erred in adopting said formula and in not acting in accordance with Alcantara v. Surro1 in which the damages were computed on a four (4) year basis, despite the fact that the victim therein was 39 years old, at the time of his death, and had a life expectancy of 28.90 years. The case cited is not, however, controlling in the one at bar. In the Alcantara case, none of the parties had questioned the propriety of the four-year basis adopted by the trial court in making its award of damages. Both parties appealed, but only as regards the amount thereof. The plaintiffs assailed the non-inclusion, in its computation, of the bonus that the corporation, which was the victim's employer, had awarded to deserving officers and employees, based upon the profits earned less than two (2) months before the accident that resulted in his death. The defendants, in turn, objected to the sum awarded for the fourth year, which was treble that of the previous years, based upon the increases given, in that fourth year, to other employees of the same corporation. Neither this objection nor said claim for inclusion of the bonus was sustained by this Court. Accordingly, the same had not thereby laid down any rule on the length of time to be used in the computation of damages. On the contrary, it declared: The determination of the indemnity to be awarded to the heirs of a deceased person has therefore no fixed basis. Much is left to the discretion of the court considering the moral and material damages involved, and so it has been said that "(t)here can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical

calculation, but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiary, whichever is shorter, is an important factor.' (25 C.J.S. 1241.) Other factors that are usually considered are: (1) pecuniary loss to plaintiff or beneficiary (25 C.J.S. 1243-1250) ; (2) loss of support (25 C.J.S., 1250-1251); (3) loss of service (25 C.J.S. 1251-1254); (4) loss of society (25 C.J.S. 1254-1255); (5) mental suffering of beneficiaries (25 C.J.S., 1258-1259) ; and (6) medical and funeral expenses (26 C.J.S., 1254-1260)."2 Thus, life expectancy is, not only relevant, but, also, an important element in fixing the amount recoverable by private respondents herein. Although it is not the sole element determinative of said amount, no cogent reason has been given to warrant its disregard and the adoption, in the case at bar, of a purely arbitrary standard, such as a four-year rule. In short, the Court of Appeals has not erred in basing the computation of petitioner's liability upon the life expectancy of Policronio Quintos, Jr. With respect to the rate at which the damages shall be computed, petitioner impugns the decision appealed from upon the ground that the damages awarded therein will have to be paid now, whereas most of those sought to be indemnified will be suffered years later. This argument is basically true, and this is, perhaps, one of the reasons why the Alcantara case points out the absence of a "fixed basis" for the ascertainment of the damages recoverable in litigations like the one at bar. Just the same, the force of the said argument of petitioner herein is offset by the fact that, although payment of the award in the case at bar will have to take place upon the finality of the decision therein, the liability of petitioner herein had been fixed at the rate only of P2,184.00 a year, which is the annual salary of Policronio Quintos, Jr. at the time of his death, as a young "training assistant" in the Bacnotan Cement Industries, Inc. In other words, unlike the Alcantara case, on which petitioner relies, the lower courts did not consider, in the present case, Policronio's potentiality and capacity to increase his future income. Indeed, upon the conclusion of his training period, he was supposed to have a better job and be promoted from time to time, and, hence, to earn more, if not considering the growing importance of trade, commerce and industry and the concomitant rise in the income level of officers and employees therein much more. At this juncture, it should be noted, also, that We are mainly concerned with the determination of the losses or damages sustained by the private respondents, as dependents and intestate heirs of the deceased, and that said damages consist, not of the full amount of his earnings, but of the support, they received or would have received from him had he not died in consequence of the negligence of petitioner's agent. In fixing the amount of that support, We must reckon with the "necessary expenses of his own living", which should be deducted from his earnings. Thus, it has been consistently held that earning capacity, as an element of damages to one's estate for his death by wrongful act is necessarily his net earning capacity or his capacity to acquire money, "less the necessary expense for his own living.3 Stated otherwise, the amount recoverable is not loss of the entire earning, but rather the loss of that portion of the earnings

which the beneficiary would have received.4 In other words, only net earnings, not gross earning, are to be considered5 that is, the total of the earnings less expenses necessary in the creation of such earnings or income6 and less living and other incidental expenses.7 All things considered, We are of the opinion that it is fair and reasonable to fix the deductible living and other expenses of the deceased at the sum of P1,184.00 a year, or about P100.00 a month, and that, consequently, the loss sustained by his sisters may be roughly estimated at P1,000.00 a year or P33,333.33 for the 33-1/3 years of his life expectancy. To this sum of P33,333.33, the following should be added: (a) P12,000.00, pursuant to Arts. 104 and 107 of the Revised Penal Code, in relation to Article 2206 of our Civil Code, as construed and applied by this Court;8 (b) P1,727.95, actually spent by private respondents for medical and burial expenses; and (c) attorney's fee, which was fixed by the trial court, at P500.00, but which, in view of the appeal taken by petitioner herein, first to the Court of Appeals and later to this Supreme Court, should be increased to P2,500.00. In other words, the amount adjudged in the decision appealed from should be reduced to the aggregate sum of P49,561.28, with interest thereon, at the legal rate, from December 29, 1961, date of the promulgation of the decision of the trial court. Thus modified, said decision and that of the Court of Appeals are hereby affirmed, in all other respects, with costs against petitioner, Villa Rey Transit, Inc. It is so ordered.

G.R. No. L-51183 December 21, 1983 CARMEN L. MADEJA, petitioner, vs. HON. FELIX T. CARO and EVA ARELLANO-JAPZON, respondents. Ernesto P. Miel for petitioner. Gorgonio T. Alvarez for respondents. In Criminal Case No. 75-88 of the defunct Court of First Instance of Eastern Samar, DR. EVA A. JAPZON is accused of homicide through reckless imprudence for the death of Cleto Madeja after an appendectomy. The complaining witness is the widow of the deceased, Carmen L. Madeja. The information states that: "The offended party Carmen L. Madeja reserving her right to file a separate civil action for damages." (Rollo, p. 36.) The criminal case still pending, Carmen L. Madeja sued Dr. Eva A. Japzon for damages in Civil Case No. 141 of the same court. She alleged that her husband died because of the gross negligence of Dr. Japzon. The respondent judge granted the defendant's motion to dismiss which motion invoked Section 3(a) of Rule 111 of the Rules of Court which reads:

Sec. 3. Other civil actions arising from offenses. In all cases not included in the preceding section the following rules shall be observed: (a) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action. ... According to the respondent judge, "under the foregoing Sec. 3 (a), Rule 111, New Rules of Court, the instant civil action may be instituted only after final judgment has been rendered in the criminal action." (Rollo, p. 33.) The instant petition which seeks to set aside the order of the respondent judge granting the defendant's motion to dismiss Civil Case No. 141 is highly impressed with merit. Section 2, Rule 111 of the Rules of Court in relation to Article 33 of the Civil Code is the applicable provision. The two enactments are quoted hereinbelow: Sec. 2. Independent civil action. In the cases provided for in Articles 31,32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." (Rule 111, Rules of Court.) Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (Civil Code,) There are at least two things about Art. 33 of the Civil Code which are worth noting, namely: 1. The civil action for damages which it allows to be instituted is ex-delicto. This is manifest from the provision which uses the expressions "criminal action" and "criminal prosecution." This conclusion is supported by the comment of the Code Commission, thus:t.hqw The underlying purpose of the principle under consideration is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State attorney. It is not conducive to civic spirit and to individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights. It is true that in many of the cases referred to in the provision cited, a criminal prosecution is proper, but it should be remembered that while the State is the complainant in the

criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him. (Report, p. 46.) And Tolentino says: The general rule is that when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party reserves his right to institute it separately; and after a criminal action has been commenced, no civil action arising from the same offense can be prosecuted. The present articles creates an exception to this rule when the offense is defamation, fraud, or physical injuries, In these cases, a civil action may be filed independently of the criminal action, even if there has been no reservation made by the injured party; the law itself in this article makes such reservation; but the claimant is not given the right to determine whether the civil action should be scheduled or suspended until the criminal action has been terminated. The result of the civil action is thus independent of the result of the civil action." (I Civil Code, p. 144 [1974.]) 2. The term "physical injuries" is used in a generic sense. It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but consummated, frustrated and attempted homicide. The Article in question uses the words 'defamation', 'fraud' and 'physical injuries.' Defamation and fraud are used in their ordinary sense because there are no specific provisions in the Revised Penal Code using these terms as means of offenses defined therein, so that these two terms defamation and fraud must have been used not to impart to them any technical meaning in the laws of the Philippines, but in their generic sense. With this apparent circumstance in mind, it is evident that the terms 'physical injuries' could not have been used in its specific sense as a crime defined in the Revised Penal Code, for it is difficult to believe that the Code Commission would have used terms in the same articlesome in their general and another in its technical sense. In other words, the term 'physical injuries' should be understood to mean bodily injury, not the crime of physical injuries, bacause the terms used with the latter are general terms. In any case the Code Commission recommended that the civil action for physical injuries be similar to the civil action for assault and battery in American Law, and this recommendation must hove been accepted by the Legislature when it approved the article intact as recommended. If the intent has been to establish a civil action for the bodily harm received by the complainant similar to the civil action for assault and battery, as the Code Commission states, the civil action should lie whether the offense committed is that of physical injuries, or frustrated homicide, or attempted homicide, or even death," (Carandang vs. Santiago, 97 Phil. 94, 96-97 [1955].)

Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, which states that reckless imprudence or criminal negligence is not included in Article 33 of the Civil Code is not authoritative. Of eleven justices only nine took part in the decision and four of them merely concurred in the result. In the light of the foregoing, it is apparent that the civil action against Dr. Japzon may proceed independently of the criminal action against her. WHEREFORE, the petition is hereby granted; the order dismissing Civil Case No. 141 is hereby set aside; no special pronouncement as to costs. SO ORDERED.1wph1.t Makasiar (Chairman), Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.

Separate Opinions

AQUINO, J., concurring: I concur. Death due to a negligent act may be a delict or quasi-delict. It may create a civil action based on article 100 of the Penal Code or an action based on culpa aquiliana under article 2176 of the Civil Code. These alternatives are assumed in article 2177 of the Civil Code "but the plaintiff cannot recover twice for the same act or omission of the defendant" (Barredo vs. Garcia, 73 Phil. 607 and Sudario vs. Acro Taxi and Yuson, 86 Phil. 1. See Formento vs. CA, L26442, August 29,1969,29 SCRA 437). The term "physical injuries" in article 33 of the Civil Code includes death and may give rise to an independent civil action (Dyogi vs. Yatco, 100 Phil. 1095). The rule in Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, that reckless imprudence is not included in article 33 of the Civil Code, is not authoritative doctrine because it was concurred in by only five Justices. Four Justices concurred in the result.

Separate Opinions

AQUINO, J., concurring: I concur. Death due to a negligent act may be a delict or quasi-delict. It may create a civil action based on article 100 of the Penal Code or an action based on culpa aquiliana under article 2176 of the Civil Code. These alternatives are assumed in article 2177 of the Civil Code "but the plaintiff cannot recover twice for the same act or omission of the defendant" (Barredo vs. Garcia, 73 Phil. 607 and Sudario vs. Acro Taxi and Yuson, 86 Phil. 1. See Formento vs. CA, L26442, August 29,1969,29 SCRA 437). The term "physical injuries" in article 33 of the Civil Code includes death and may give rise to an independent civil action (Dyogi vs. Yatco, 100 Phil. 1095). The rule in Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, that reckless imprudence is not included in article 33 of the Civil Code, is not authoritative doctrine because it was concurred in by only five Justices. Four Justices concurred in the result.

G.R. No. 89306 September 13, 1990 MARCELO JERVOSO and NORMA CLOSA, petitioners, vs. PEOPLE OF THE PHILIPPINES & HON. COURT OF APPEALS, respondents. Manuel M. Benedicto for petitioners. The Solicitor General for respondents.

GRIO-AQUINO, J.: In this petition for review, the petitioners assail the decision of the Court of Appeals affirming with modification of the penalty only, the decision of the trial court which convicted petitioner Marcelo Jervoso of homicide for the fatal stabbing of Rogelio Jervoso, but which appreciated in his favor the mitigating circumstance of voluntary surrender. The trial court and the Court of Appeals also convicted his wife, Norma Closa, of slight physical injuries committed against the deceased.

The Court of Appeals set forth in its decision the conflicting versions of the prosecution and the defense as to how the crime was committed, thus: The facts as summarized in the People's brief as borne out by the evidence and WE quote, [are] as follows: The evidence for the prosecution showed that on October 24, 1982, at about 2:20 o'clock in the afternoon, prosecution eyewitness Felicisimo Pamaus a childhood friend of appellant spouses Marcelo Jervoso and Norma Closa as well as of the victim, Rogelio Jervoso, was in the poblacion of MacArthur, Leyte going towards the store of appellants for the purpose of buying bread. While said eyewitness was about four meters distance from the store, he saw the victim, Rogelio Jervoso, walking back and forth in front of said store and appellant Marcelo Jervoso was also present thereat. It was while Rogelio, who was still walking back and forth, had his back turned away from Marcelo when the latter, in the presence of his spouse and co-appellant Norma Closa, pulled from his waist a short bolo or 'pisao' measuring about 7-1/2 inches in length (Exh. 'D') and stabbed Rogelio at the back with said weapon (pp. 2-6, tsn, March 16, 1984). After being wounded, Rogelio ran away but was chased by Marcelo who was still holding the 'pisao' with his right hand and was closely being followed by his wife and co-appellant, Norma Closa, across the national highway and inside the hollow blockfenced yard of a certain Mrs. Olmedo. Catching up with Rogelio inside the fenced yard of Mrs. Olmedo where Rogelio had already fallen face downward upon entering the same, Marcelo stabbed Rogelio again at the back of the latter with the 'pisao.' Meanwhile, Norma Closa, who had picked up a stone measuring about 8 inches in length and 3-3/4 inches in width (Exh. 'E') struck the fallen Rogelio with said stone held by both her hands, hitting the latter on the left side of the face near the ear (pp. 5-8, 20, 21, 23, 24, tsn, March 16, 1984). Another eyewitness who was present and who saw the incident in question from its inception up to the time of its termination and who in fact tried to pacify Marcelo and Rogelio was Eleno Requioma. After Marcelo inflicted on Rogelio the second stab wound at the back and Norma Closa hit the latter with a stone (Exh. 'E') on the left side of the face near the ear and appellants went back to their house, it was Requioma, together with Dominador Moquia and Rolando Molero, who brought the victim to the Abuyog General Hospital where he later expired (pp- 5, 25, 26, 28, tsn, March 16, 1984). Requioma, however, failed to testify for the prosecution as he died during the pendency of trial of the case (p. 6, decision, p. 229, record). The defense' evidence was briefly stated in the appellant's brief which WE also quote, as follows:

At the trial of this case, principal accused MARCELO JERVOSO declared that on October 24, 1982 at about 2:00 o'clock in the afternoon he was in his office situated in front of his main house which is also near his store, making list of goods to be purchased in Tacloban City for his store; that his wife Norma Closa was inside their house bathing their children preparatory to their taking their afternoon nap that Rogelio Jervoso, son of the brother of his adoptive father, entered his office without knocking, and arrogantly asked him why he was possessing the lands of Domingo Jervoso when he is not the real son and he is not also a legally adopted son; that Rogelio Jervoso was drunk at the time, demanded that an accounting of all the produce of the coconuts and palay of Domingo Jervoso's lands; that he told Rogelio to come back the next day so both of them would go and see his adoptive mother Afra Diaz who can enlighten him (Rogelio) about the matter. Seeing Rogelio already belligerent, Marcelo went outside his office. While he was already outside and about a meter from his store, he saw Ramon Taro and heard him shout: 'Boy, don't do that! Boy' is the nickname of Rogelio Jervoso. Upon hearing Ramon Taro shout, Marcelo looked back just as Rogelio delivered a stabbing blow on him, hitting him on the left back part of Ms upper arm, with a 'pisao'(Exhibit 'D') After the first stab blow delivered by Rogelio, he (Marcelo) ran across the National Highway towards the gate of the house of Mrs. Olmedo. Marcelo was able to enter the front yard of Mrs. Olmedo's premises and he tried to escape, but Rogelio intercepted him by passing the other way. Marcelo ran toward the corner but was met by Rogelio, so he tried to retrace his steps to the gate, but when he was about to go out of the gate, Rogelio lunged at him and delivered another stabbing blow but he was able to get hold of the right wrist of Rogelio's hand holding the deadly weapon. Meanwhile, Rogelio's left arm was choking his check (sic) and pushing him towards the concrete fence of Mrs. Olmedo. So, he struggled to get hold of the 'pisao' and was able to wrest it from the hold of Rogelio by twisting Rogelio's right hand, but Rogelio was still holding his neck pinned in his left arm against the concrete fence. To defend himself, Marcelo, delivered two stabbing blows at the back of Rogelio the first blow, with a downward stroke on his right back portion and the second by an upward stroke on his left back portion. After stabbing the victim, Rogelio, he pushed Rogelio who fell to the ground on his left side, he ran towards the gate of Mrs. Olmedo's premises and on his way out he saw Ramon Taro and called him instructing him to fetch a policeman.' (pp. 31-34, Rollo.)

The Court of Appeals affirmed the trial court's finding that the plea of self-defense was not proven by clear and convincing evidence: Regrettably missing in the appellants' evidence are the elements of self-defense which are: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent and repel it; and (3) lack of sufficient provocation on the part of the person defending himself. The defense failed to demonstrate the concurrence of the three essential elements with satisfactory evidence so as to entitle the appellant of the defense of self-defense. WE are entirely in accord with the trial court that the affirmative defense of selfdefense was not proven by clear and convincing evidence. The evidence is doubtful, and lacks that requisite of certainty and sufficient credulity to sustain the plea of self-defense. Suffice it to say that the trial court did not err in finding that the guilt of both appellant was proven with proof beyond reasonable doubt. (p. 36, Rollo.) The dispositive part of its decision reads: WHEREFORE, the appealed judgment is hereby MODIFIED in the sense that the penalty to be imposed on appellant Marcelo Jervoso, should be an imprisonment of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years of prision mayor as maximum, and to indemnify the heirs of the deceased Rogelio Jervoso in the amount of P30,000.00, Philippine Currency. In all other respects, the appealed judgment is hereby affirmed. Costs against both appellants. (p. 37, Rollo.) In their petition for review, the petitioners allege that the Court of Appeals erred: (1) in ordering them (petitioners) to pay indemnity of P30,000 to the heirs of Rogelio Jervoso despite the reservation by said heirs of their right to file a separate civil action against the accused, which they did file in the Regional Trial Court of Manila, Branch XXXI where it was docketed as Civil Case No. 83-18958 entitled, "Digna Carino-Jervoso, et al. vs. Marcelo Jervoso and Norma Closa; and (2) in finding the petitioners guilty of the crimes charged without support of competent evidence and contrary to applicable laws and decisions of this Court. The first assignment of error is meritorious. Section 1, Rule 111 of the Rules of Court provides: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted

with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of the said civil actions separately waives the others. The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. In no case may the offended party recover damages twice for the same act or omission of the accused. xxx xxx xxx The filing of a separate civil action for damages against the accused by the heirs of the deceased victim is authorized under Article 33 of the Civil Code which provides: Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. The term "physical injuries" in Art. 33 is used in a generic sense. It includes consummated, frustrated, or attempted homicide (Madeja vs. Cruz, 126 SCRA 293, cited in Vol. I, p. 62 Civil Code, 1990 Ed., by R.C. Aquino). Having reserved and filed in the Regional Trial Court of Manila a separate civil action to recover the civil liability of the accused arising from the crimes charged, the heirs of the deceased Rogelio Jervoso, are precluded from recovering damages in the criminal case against the accused, for they are not entitled to recover damages twice for the same criminal act of the accused. The trial court erred in awarding to the heirs of Rogelio Jervoso in the criminal case P30,000 as civil indemnity for his death despite their reservation to file a separate civil action for that purpose. The Court of Appeals likewise erred in affirming the award. The second assignment of error raises a purely factual issue: whether the evidence is sufficient to convict the accused of homicide. That issue may not be reviewed by this Court in an appeal by certiorari under Rule 45 of the Rules of Court, where only legal issues may be raised.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR No. 04472 entitled, "People of the Philippines, plaintiff-appellee vs. Marcelo Jervoso and Norma Closa, defendants-appellants" is affirmed, except the award of P30,000 as indemnity for damages to the heirs of Rogelio Jervoso, which should be deleted. No costs. SO ORDERED.