G.R. No.

98695 January 27, 1993

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

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

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

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

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

We hold, therefore, that private respondent did not breach the tenor of its obligation to the Syquias. While this
may be so, can private respondent be liable for culpa aquiliana for boring the hole on the vault? It cannot be
denied that the hole made possible the entry of more water and soil than was natural had there been no hole.
The law defines negligence as the "omission of that diligence which is required by the nature of the obligation
and corresponds with the circumstances of the persons, of the time and of the place."
14
In the absence of
stipulation or legal provision providing the contrary, the diligence to be observed in the performance of the
obligation is that which is expected of a good father of a family.
The circumstances surrounding the commission of the assailed act boring of the hole negate the
allegation of negligence. The reason for the act was explained by Henry Flores, Interment Foreman, who said
that:
Q It has been established in this particular case that a certain Vicente Juan
Syquia was interred on July 25, 1978 at the Paraaque Cemetery of the Manila
Memorial Park Cemetery, Inc., will you please tell the Hon. Court what or
whether you have participation in connection with said internment (sic)?
A A day before Juan (sic) Syquia was buried our personnel dug a grave. After
digging the next morning a vault was taken and placed in the grave and when
the vault was placed on the grave a hole was placed on the vault so that water
could come into the vault because it was raining heavily then because the vault
has no hole the vault will float and the grave would be filled with water and the
digging would caved (sic) in and the earth, the earth would (sic) caved in and fill
up the grave.
15
(Emphasis ours)
Except for the foreman's opinion that the concrete vault may float should there be a heavy rainfall, from the
above-mentioned explanation, private respondent has exercised the diligence of a good father of a family in
preventing the accumulation of water inside the vault which would have resulted in the caving in of earth
around the grave filling the same with earth.
Thus, finding no evidence of negligence on the part of private respondent, We find no reason to award
damages in favor of petitioners.
In the light of the foregoing facts, and construed in the language of the applicable laws and jurisprudence, We
are constrained to AFFIRM in toto the decision of the respondent Court of Appeals dated December 7, 1990.
No costs.
SO ORDERED.
G.R. No. 115024 February 7, 1996
MA. LOURDES VALENZUELA, petitioner,
vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x
G.R. No. 117944 February 7, 1996
RICHARD LI, petitioner,
vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.
D E C I S I O N
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action
to recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries
sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial
court are succinctly summarized by the Court of Appeals below:
This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a
vehicular accident.
Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990, plaintiff
Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her
restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling
along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before
reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted place
where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been
told by the people present that her rear right tire was flat and that she cannot reach her home in that
car's condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency lights,
alighted from the car, and went to the rear to open the trunk. She was standing at the left side of the
rear of her car pointing to the tools to a man who will help her fix the tire when she was suddenly
bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of
defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the
windshield of the car of the defendant, which was destroyed, and then fell to the ground. She was
pulled out from under defendant's car. Plaintiff's left leg was severed up to the middle of her thigh, with
only some skin and sucle connected to the rest of the body. She was brought to the UERM Medical
Memorial Center where she was found to have a "traumatic amputation, leg, left up to distal thigh
(above knee)". She was confined in the hospital for twenty (20) days and was eventually fitted with an
artificial leg. The expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg
(P27,000.00) were paid by defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in
the amount of P100,000.00 and other medical and related expenses amounting to a total of
P180,000.00, including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph;
considering that it was raining, visibility was affected and the road was wet. Traffic was light. He
testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San
Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright lights".
Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle,
and bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parking
lights or early warning device, and the area was poorly lighted. He alleged in his defense that the left
rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on the outer
portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of
plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and hit another car
parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or
negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch
of the three cars involved in the accident, testified that the plaintiff's car was "near the sidewalk"; this
witness did not remember whether the hazard lights of plaintiff's car were on, and did not notice if there
was an early warning device; there was a street light at the corner of Aurora Blvd. and F. Roman,
about 100 meters away. It was not mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and
opened the trunk compartment, defendant's car came approaching very fast ten meters from the
scene; the car was "zigzagging". The rear left side of plaintiff's car was bumped by the front right
portion of defendant's car; as a consequence, the plaintiff's car swerved to the right and hit the parked
car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was destroyed,
and landed under the car. He stated that defendant was under the influence of liquor as he could
"smell it very well" (pp. 43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of gross
negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander
Commercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180. It ordered
the defendants to jointly and severally pay the following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a result
of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro La
Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month, as
unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the date of
this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two (2) beauty salons from
July, 1990 until the date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages;
5. P60,000.00, as reasonable attorney's fees; and
6. Costs.
As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show
that the point of impact, as depicted by the pieces of glass/debris from the parties' cars, appeared to be at the
center of the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an appeal
with the respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals found that
there was "ample basis from the evidence of record for the trial court's finding that the plaintiff's car was
properly parked at the right, beside the sidewalk when it was bumped by defendant's car."
1
Dismissing the
defendants' argument that the plaintiff's car was improperly parked, almost at the center of the road, the
respondent court noted that evidence which was supposed to prove that the car was at or near center of the
right lane was never presented during the trial of the case.
2
The respondent court furthermore observed that:
Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was not
corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was outside his
beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1990
when his attention was caught by a beautiful lady (referring to the plaintiff) alighting from her car and
opening the trunk compartment; he noticed the car of Richard Li "approaching very fast ten (10) meters
away from the scene"; defendant's car was zigzagging", although there were no holes and hazards on
the street, and "bumped the leg of the plaintiff" who was thrown against the windshield of defendant's
care, causing its destruction. He came to the rescue of the plaintiff, who was pulled out from under
defendant's car and was able to say "hurting words" to Richard Li because he noticed that the latter
was under the influence of liquor, because he "could smell it very well" (p. 36, et. seq., tsn, June 17,
1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970's, but did not know either
plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the
Court of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any
liability towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00.
Finding justification for exemplary damages, the respondent court allowed an award of P50,000.00 for the
same, in addition to costs, attorney's fees and the other damages. The Court of Appeals, likewise, dismissed
the defendants' counterclaims.
3

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

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

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

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

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next
question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence in
parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard to which he is required to conform for his own
protection.
14
Based on the foregoing definition, the standard or act to which, according to petitioner Li,
Valenzuela ought to have conformed for her own protection was not to park at all at any point of Aurora
Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is
not to be held up to the standard of conduct normally applied to an individual who is in no such situation. The
law takes stock of impulses of humanity when placed in threatening or dangerous situations and does not
require the same standard of thoughtful and reflective care from persons confronted by unusual and
oftentimes threatening conditions.
15

Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,
16
an individual who suddenly
finds himself in a situation of danger and is required to act without much time to consider the best means that
may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by
his own negligence.
17

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

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately
weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated
not exclusively by the suddenness of the event which absolutely negates thoroughful care, but by the over-all
nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not
be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other
motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark street
or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess
the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the
hobbling vehicle would be both a threat to her safety and to other motorists. In the instant case, Valenzuela,
upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid
putting herself and other motorists in danger, she did what was best under the situation. As narrated by
respondent court: "She stopped at a lighted place where there were people, to verify whether she had a flat
tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and
that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota
Corona Car."
20
In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident
confirmed that Valenzuela's car was parked very close to the sidewalk.
21
The sketch which he prepared after
the incident showed Valenzuela's car partly straddling the sidewalk, clear and at a convenient distance from
motorists passing the right lane of Aurora Boulevard. This fact was itself corroborated by the testimony of
witness Rodriguez.
22

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

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

We agree with the respondent court that the relationship in question is not based on the principle
of respondeat superior, which holds the master liable for acts of the servant, but that of pater familias, in which
the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the
family in the selection and supervision of his employees. It is up to this point, however, that our agreement
with the respondent court ends. Utilizing the bonus pater familias standard expressed in Article 2180 of the
Civil Code,
28
we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily
liable for the damage caused by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals
29
upon which respondent court has placed
undue reliance, dealt with the subject of a school and its teacher's supervision of students during an
extracurricular activity. These cases now fall under the provision on special parental authority found in Art. 218
of the Family Code which generally encompasses all authorized school activities, whether inside or outside
school premises.
Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in relation
to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing
that he exercised the diligence of a good father of the family in the selection and supervision of its employees.
Once evidence is introduced showing that the employer exercised the required amount of care in selecting its
employees, half of the employer's burden is overcome. The question of diligent supervision, however,
depends on the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during
the performance of the latter's assigned tasks would be enough to relieve him of the liability imposed by
Article 2180 in relation to Article 2176 of the Civil Code. The employer is not expected to exercise supervision
over either the employee's private activities or during the performance of tasks either unsanctioned by the
former or unrelated to the employee's tasks. The case at bench presents a situation of a different character,
involving a practice utilized by large companies with either their employees of managerial rank or their
representatives.
It is customary for large companies to provide certain classes of their employees with courtesy vehicles.
These company cars are either wholly owned and maintained by the company itself or are subject to various
plans through which employees eventually acquire their vehicles after a given period of service, or after
paying a token amount. Many companies provide liberal "car plans" to enable their managerial or other
employees of rank to purchase cars, which, given the cost of vehicles these days, they would not otherwise be
able to purchase on their own.
Under the first example, the company actually owns and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the car is really owned and maintained by the employee
himself. In furnishing vehicles to such employees, are companies totally absolved of responsibil ity when an
accident involving a company-issued car occurs during private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of
road worthiness from their agents prior to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the company vehicle only after they
are satisfied that the employee to whom the car has been given full use of the said company car for company
or private purposes will not be a threat or menace to himself, the company or to others. When a company
gives full use and enjoyment of a company car to its employee, it in effect guarantees that it is, like every good
father, satisfied that its employee will use the privilege reasonably and responsively.
In the ordinary course of business, not all company employees are given the privilege of using a company-
issued car. For large companies other than those cited in the example of the preceding paragraph, the
privilege serves important business purposes either related to the image of success an entity intends to
present to its clients and to the public in general, or - for practical and utilitarian reasons - to enable its
managerial and other employees of rank or its sales agents to reach clients conveniently. In most cases,
providing a company car serves both purposes. Since important business transactions and decisions may
occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a
company car therefore principally serves the business and goodwill of a company and only incidentally the
private purposes of the individual who actually uses the car, the managerial employee or company sales
agent. As such, in providing for a company car for business use and/or for the purpose of furthering the
company's image, a company owes a responsibility to the public to see to it that the managerial or other
employees to whom it entrusts virtually unlimited use of a company issued car are able to use the company
issue capably and responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep
normal office hours as he was required quite often to perform work outside the office, visiting prospective
buyers and contacting and meeting with company clients.
30
These meetings, clearly, were not strictly confined
to routine hours because, as a managerial employee tasked with the job of representing his company with its
clients, meetings with clients were both social as well as work-related functions. The service car assigned to Li
by Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the front of a
highly successful entity, increasing the latter's goodwill before its clientele. It also facilitated meeting between
Li and its clients by providing the former with a convenient mode of travel.
Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming
from a social visit with an officemate in Paranaque was a bare allegation which was never corroborated in the
court below. It was obviously self-serving. Assuming he really came from his officemate's place, the same
could give rise to speculation that he and his officemate had just been from a work-related function, or they
were together to discuss sales and other work related strategies.
In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and
diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to
whether or not the company took the steps necessary to determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a company car.
31
Not having been able to overcome the
burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the
former for the injuries sustained by Ma. Lourdes Valenzuela during the accident.
Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to
the amount of moral damages. In the case of moral damages, while the said damages are not intended to
enrich the plaintiff at the expense of a defendant, the award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the opinion that the reduction in moral damages from an
amount of P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified considering the nature of
the resulting damage and the predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the
full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and re-adjusted to
changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-
menopausal women. In other words, the damage done to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented,
are painful.
The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it
would be highly speculative to estimate the amount of psychological pain, damage and injury which goes with
the sudden severing of a vital portion of the human body. A prosthetic device, however technologically
advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury, mental
and physical pain are inestimable.
As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount
of P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury -
physical and psychological - suffered by Valenzuela as a result of Li's grossly negligent driving of his
Mitsubishi Lancer in the early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect of
REINSTATING the judgment of the Regional Trial Court.
SO ORDERED.
Padilla, Bellosillo and Hermosisima, Jr., JJ., concur.
Separate Opinions
VITUG, J., concurring:
Pursuant to Article 2180
1
of the Civil Code that acknowledges responsibility under a relationship of patria
potestas, a person may be held accountable not only for his own direct culpable act or negligence but also for
those of others albeit predicated on his own supposed failure to exercise due care in his supervisory authority
and functions. In the case of an employer, that vicarious liability attaches only when the tortious conduct of the
employee relates to, or is in the course of, his employment. The question to ask should be whether, at the
time of the damage or injury, the employee is engaged in the affairs or concerns of the employer or,
independently, in that of his own. While an employer incurs no liability when an employee's conduct, act or
omission is beyond the range of employment,
2
a minor deviation from the assigned task of an employee,
however, does not affect the liability of an employer.
3

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

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official information, not having been given by the informants
pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ...
in the Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the
case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949),
wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed and maintained by the defendant
Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the
broken ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff
received the full shock of 4,400 volts carried by the wire and was knocked unconscious to the ground.
The electric charge coursed through his body and caused extensive and serious multiple burns from
skull to legs, leaving the bone exposed in some parts and causing intense pain and wounds that were
not completely healed when the case was tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court
said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principal that "where the thing which caused
injury, without fault of the injured person, is under the exclusive control of the defendant and the injury
is such as in the ordinary course of things does not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the explanation, that the injury arose from defendant's
want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and diligence.
(San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the
name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at
bar, where it is unquestioned that the plaintiff had every right to be on the highway, and the electric
wire was under the sole control of defendant company. In the ordinary course of events, electric wires
do not part suddenly in fair weather and injure people, unless they are subjected to unusual strain and
stress or there are defects in their installation, maintenance and supervision; just as barrels do not
ordinarily roll out of the warehouse windows to injure passersby, unless some one was negligent.
(Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is admittedly not present), the fact that
the wire snapped suffices to raise a reasonable presumption of negligence in its installation, care and
maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme
Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the
case at bar. Gasoline is a highly combustible material, in the storage and sale of which extreme care must be
taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act
of man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to
the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of
the lease, while gasoline was being transferred from the tank wagon, also operated by the Shell
Petroleum Corporation, to the underground tank of the station, a fire started with resulting damages to
the building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones
sued the Shell Petroleum Corporation for the recovery of that amount. The judge of the district court,
after hearing the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment
in his favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on the
ground the testimony failed to show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of
Review which was granted, and the case is now before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the fire
and the other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were
placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the
record that the filling station and the tank truck were under the control of the defendant and operated
by its agents or employees. We further find from the uncontradicted testimony of plaintiff's witnesses
that fire started in the underground tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to explain the
cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we
think, is one of them.
Where the thing which caused the injury complained of is shown to be under the management of
defendant or his servants and the accident is such as in the ordinary course of things does not happen
if those who have its management or control use proper care, it affords reasonable evidence, in
absence of explanation by defendant, that the accident arose from want of care. (45 C.J. #768, p.
1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of
last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co.,
111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115
La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all
its appliances, equipment and employees, was under the control of appellees. A fire occurred therein and
spread to and burned the neighboring houses. The persons who knew or could have known how the fire
started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the
following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies
a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is
within a very busy business district near the Obrero Market, a railroad crossing and very thickly
populated neighborhood where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from
leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material damages but
desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used by its
operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another
risk to the possible outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of
his own personal observation of the facts reported, may properly be considered as an exception to the
hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the operation of
the gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa
loquitur, since on their face they called for more stringent measures of caution than those which would satisfy
the standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this
than the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank
wagon who, alone and without assistance, was transferring the contents thereof into the underground storage
when the fire broke out. He said: "Before loading the underground tank there were no people, but while the
loading was going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a
meter from the hole leading to the underground tank." He added that when the tank was almost filled he went
to the tank truck to close the valve, and while he had his back turned to the "manhole" he, heard someone
shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to
intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended complaint that
"the fire was caused through the acts of a stranger who, without authority, or permission of answering
defendant, passed through the gasoline station and negligently threw a lighted match in the premises." No
evidence on this point was adduced, but assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts analogous to those of the present case, states the rule
which we find acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a danger involved ... we think it is
the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in
bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p.
1184, #439). Stated in another way, "The intention of an unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W.
2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue
depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of law and hence may be passed upon
by this Court. These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time
of the fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control over
Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to the station had
the name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the name of
Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his
drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was,
was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline
station." It is true that Boquiren later on amended his answer, and that among the changes was one to the
effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it stated no cause of action since under the allegations
thereof he was merely acting as agent of Caltex, such that he could not have incurred personal liability. A
motion to dismiss on this ground is deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must
have been one in existence at that time. Instead, what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered into shortly before the expiration of the one-year period
it was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November
29, 1948, but made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18,
1948. This retroactivity provision is quite significant, and gives rise to the conclusion that it was designed
precisely to free Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR
(Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of
the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of the station
and its equipment was subject to the approval, in other words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior written
notice. Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex
products, or did not conduct the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract
show the extent of the control of Caltex over Boquiren. The control was such that the latter was virtually an
employee of the former.
Taking into consideration the fact that the operator owed his position to the company and the latter
could remove him or terminate his services at will; that the service station belonged to the company
and bore its tradename and the operator sold only the products of the company; that the equipment
used by the operator belonged to the company and were just loaned to the operator and the company
took charge of their repair and maintenance; that an employee of the company supervised the operator
and conducted periodic inspection of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by the operator; and that the receipts
signed by the operator indicated that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the name or
title given it by the contracting parties, should thereby a controversy as to what they really had
intended to enter into, but the way the contracting parties do or perform their respective obligations
stipulated or agreed upon may be shown and inquired into, and should such performance conflict with
the name or title given the contract by the parties, the former must prevail over the latter. (Shell
Company of the Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).
The written contract was apparently drawn for the purpose of creating the apparent relationship of
employer and independent contractor, and of avoiding liability for the negligence of the employees
about the station; but the company was not satisfied to allow such relationship to exist. The evidence
shows that it immediately assumed control, and proceeded to direct the method by which the work
contracted for should be performed. By reserving the right to terminate the contract at will, it retained
the means of compelling submission to its orders. Having elected to assume control and to direct the
means and methods by which the work has to be performed, it must be held liable for the negligence
of those performing service under its direction. We think the evidence was sufficient to sustain the
verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to
prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the
ground that Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights
of the insured, was not yet in effect when the loss took place. However, regardless of the silence of the law on
this point at that time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs
of Ong P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that said property was
worth P4,000.00. We agree that the court erred, since it is of common knowledge that the assessment for
taxation purposes is not an accurate gauge of fair market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with
interest from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and
Sanchez, JJ., concur.
Dizon, J., took no part.
Footnotes
1
Thus, for instance, the record of a justice of the peace of marriage certificates transmitted to him by the
corresponding priest is admissible. The justice of the peace has no personal knowledge of the marriage, but it
was reported to him by a priest whose duty it was, under the law, to make the report for record purposes.
Similarly, the tax records of a provincial assessor are admissible even if the assessments were made by
subordinates. So also are entries of marriages made by a municipal treasurer in his official record, because he
acquires knowledge thereof by virtue of a statutory duty on the part of those authorized to solemnize
marriages to send a copy of each marriage contract solemnized by them to the local civil registrar. (See
Moran, Comments on the Rules of Court, Vol. 3 [1957] pp. 389-395.)
G.R. No. 83589 March 13, 1991
RAMON FAROLAN as ACTING COMMISSIONER OF CUSTOMS, and GUILLERMO PARAYNO, as CHIEF
OF CUSTOM INTELLIGENCE and INVESTIGATION DIVISION, petitioners,
vs.
SOLMAC MARKETING CORPORATION and COURT OF APPEALS, respondents.
Dakila F. Castro & Associates for private respondent.
SARMIENTO, J.:p
This petition for review on certiorari, instituted by the Solicitor General on behalf of the public officers-
petitioners, seek the nullification and setting aside of the Resolution
1
dated May 25, 1988 of the Court of
Appeals in CA-G.R. No. SP-10509, entitled "Solmac Marketing Corporation vs. Ramon Farolan, Acting
Commissioner of Customs, and Guillermo Parayno, Chief of Customs Intelligence and Investigation Division,"
which adjudged these public officers to pay solidarily and in their private personal capacities respondent
Solmac Marketing Corporation temperate damages in the sum of P100,000.00, exemplary damages in the
sum of P50,000.00, and P25,000.00, as attorney's fees and expenses of litigation. This challenged resolution
of the respondent court modified its decision
2
of July 27, 1987 by reducing into halves the original awards of
P100,000.00 and P50,000.00 for exemplary damages and attorney's fees and litigation expenses,
respectively, keeping intact the original grant of P100,000.00 in the concept of temperate damages.
(Strangely, the first name of petitioner Farolan stated in the assailed resolution, as well as in the decision, of
the respondent court is "Damian" when it should be "Ramon", his correct given name. Strictly speaking,
petitioner Ramon Farolan could not be held liable under these decision and resolution for he is not the one
adjudged to pay the huge damages but a different person. Nonetheless, that is of no moment now considering
the disposition of this ponencia.)
The relevant facts, as culled from the records, are as follows:
At the time of the commission of the acts complained of by the private respondent, which was the subject of
the latter's petition for mandamus and injunction filed with the Regional Trial Court (RTC) of Manila in Civil
Case No. 84-23537, petitioner Ramon Farolan was then the Acting Commissioner of Customs while petitioner
Guillermo Parayno was then the Acting Chief, Customs Intelligence and Investigation Division. They were thus
sued in their official capacities as officers in the government as clearly indicated in the title of the case in the
lower courts and even here in this Court. Nevertheless, they were both held personally liable for the awarded
damages "(s)ince the detention of the goods by the defendants (petitioners herein) was irregular and devoid of
legal basis, hence, not done in the regular performance of official duty . . . ."
3
However, as adverted to at the
outset, in the dispositive portion of the challenged resolution, the one held personally liable is a "Damian
Farolan" and not the petitioner, Ramon Farolan. Also as earlier mentioned, we will ignore that gross error.
Private respondent Solmac Marketing Corporation is a corporation organized and existing under the laws of
the Philippines. It was the assignee, transferee, and owner of an importation of Clojus Recycling Plastic
Products of 202,204 kilograms of what is technically known as polypropylene film, valued at US$69,250.05.
Polypropylene is a substance resembling polyethelyne which is one of a group of partially crystalline
lightweight thermoplastics used chiefly in making fibers, films, and molded and extruded products.
4
Without
defect, polypropylene film is sold at a much higher price as prime quality film. Once rejected as defective due
to blemishes, discoloration, defective winding, holes, etc., polypropylene film is sold at a relatively cheap price
without guarantee or return, and the buyer takes the risk as to whether he can recover an average 30% to
50% usable matter.
5
This latter kind of polypropylene is known as OPP film waste/scrap and this is what
respondent SOLMAC claimed the Clojus shipment to be.
The subject importation, consisting of seventeen (17) containers, arrived in December, 1981. Upon application
for entry, the Bureau of Customs asked respondent SOLMAC for its authority from any government agency to
import the goods described in the bill of lading. Respondent SOLMAC presented a Board of Investment (BOI)
authority for polypropylene film scrap. However, upon examination of the shipment by the National Institute of
Science and Technology (NIST), it turned out that the fibers of the importation were oriented in such a way
that the materials were stronger than OPP film scrap.
6
In other words, the Clojus shipment was not OPP film
scrap, as declared by the assignee respondent SOLMAC to the Bureau of Customs and BOI Governor Lilia R.
Bautista, but oriented polypropylene the importation of which is restricted, if not prohibited, under Letter of
Instructions (LOI) No. 658-B. Specifically, Sections 1 and 2 of LOI No. 658-B provide that:
xxx xxx xxx
1. The importation of cellophane shall be allowed only for quantities and types of cellophane
that cannot be produced by Philippine Cellophane Film Corporation. The Board of Investments
shall issue guidelines regulating such importations.
2. The Collector of Customs shall see to the apprehension of all illegal importations of
cellophane and oriented polypropylene (OPP) and the dumping of imported stock lots of
cellophane and OPP.
xxx xxx xxx
Considering that the shipment was different from what had been authorized by the BOI and by law,
petitioners Parayno and Farolan withheld the release of the subject importation.
On June 7, 1982, petitioner Parayno, then Chief of Customs Intelligence and Investigation Division, wrote the
BOI asking for the latter's advice on whether or no t the subject importation may be released
7
A series of
exchange of correspondence between the BOI and the Bureau of Customs, on one hand, and between the
late Dakila Castro, counsel for the private respondent, and the BOI and the Bureau of Customs, on the other,
ensued, to wit:
xxx xxx xxx
4. In a letter dated August 17, 1982, the BOI agreed that the subject imports may be released
but that holes may be drilled on them by the Bureau of Customs prior to their release.
5. On January 20, 1983, (the late) Atty. Dakila Castro, (then) counsel of private respondent
wrote to petitioner Commissioner Farolan of Customs asking for the release of the importation.
The importation was not released, however, on the ground that holes had to be drilled on them
first.
6. Atty. Dakila Castro then wrote a letter dated October 6, 1983, to BOI Governor Hermenigildo
Zayco stressing the reasons why the subject importation should be released without drilling of
holes.
7. On November 8, 1983, BOI Governor H. Zayco wrote a letter to the Bureau of Customs
stating that the subject goods may be released without drilling of holes inasmuch as the goods
arrived prior to the endorsement on August 17, 1982 to the drilling of holes on all importations
of waste/scrap films.
8. On February 1, 1984, petitioner Commissioner Farolan wrote the BOI requesting for definite
guidelines regarding the disposition of importations of Oriented Polypropylene (OPP) and
Polypropylene (PP) then being held at the Bureau of Customs.
9. On March 12, 1984, Minister Roberto Ongpin of Trade, the BOI Chairman, wrote his reply to
petitioner Farolan . . . .
8
(This reply of Minister Ongpin is copied in full infra.)
On March 26, 1984, respondent Solmac filed the action for mandamus and injunction with the RTC as above
mentioned. It prayed for the unconditional release of the subject importation. It also prayed for actual
damages, exemplary damages, and attorney's fees. As prayed for, the trial court issued a writ of preliminary
injunction.
After hearing on the merits, the RTC rendered a decision on February 5, 1985, the dispositive portion of which
reads as follows:
Premises considered, judgment is hereby rendered ordering defendants to release the subject
importation immediately without drilling of holes, subject only to the normal requirements of the
customs processing for such release to be done with utmost dispatch as time is of the essence;
and the preliminary injunction hereto issued is hereby made permanent until actual physical
release of the merchandise and without pronouncement as to costs.
SO ORDERED.
9

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

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

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

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

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

In the same vein, the presumption, disputable though it may be, that an official duty has been regularly
performed
23
applies in favor of the petitioners. Omnia praesumuntur rite et solemniter esse acta. (All things
are presumed to be correctly and solemnly done.) It was private respondent's burden to overcome this juris
tantum presumption. We are not persuaded that it has been able to do so.
WHEREFORE, the petition is hereby GRANTED, the assailed Resolution of the respondent court, in CA-G.R.
SP No. 10509, dated May 25, 1988, is SET ASIDE and ANNULLED. No costs.
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant. G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the
opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued
his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed
by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing
on the right side of the bridge instead of going to the left. He says that the reason he did this was that he
thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of
about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward
his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the
horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no
sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering
to the right while yet some distance away or slowing down, continued to approach directly toward the horse
without diminution of speed. When he had gotten quite near, there being then no possibility of the horse
getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting
the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such
close proximity to the animal that it became frightened and turned its body across the bridge with its head
toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in the
case we believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and
required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done;
and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to
assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of
the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to escape being run down by going to a place of
greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either
to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the
other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this
by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and
jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this
danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did
the defendant in doing the alleged negligent act use that person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions
to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized
that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the
horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed
on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since
the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under
these circumstances the law is that the person who has the last fair chance to avoid the impending harm and
fails to do so is chargeable with the consequences, without reference to the prior negligence of the other
party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages
which would otherwise have been assessed wholly against the other party. The defendant company had there
employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the
company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow
track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight
of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the
typhoon which had dislodged one of the supports of the track. The court found that the defendant company
was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the
accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It
was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep
the track in proper repair nevertheless the amount of the damages should be reduced on account of the
contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its responsibility for the dangerous condition of its track.
In a case like the one now before us, where the defendant was actually present and operating the automobile
which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective
parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that
the negligence of the defendant was in this case the immediate and determining cause of the accident and
that the antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer,
to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of
the peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of
serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial
upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question
of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the
action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have
no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date
of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not
to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of
my understanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile
accidents. This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the
defendant. Again, if a traveler when he reaches the point of collision is in a situation to extricate himself and
avoid injury, his negligence at that point will prevent a recovery. But Justice Street finds as a fact that the
negligent act of the interval of time, and that at the moment the plaintiff had no opportunity to avoid the
accident. Consequently, the "last clear chance" rule is applicable. In other words, when a traveler has reached
a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in
reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a
recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador
Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his
death was caused by his own negligence or by unavoidable accident. Defendant also avers that it had
exercised due diligence in the selection of, and supervision over, its employees and that it had observed the
diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without
pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount
involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to
which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged.
The main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners
Pool." There are diving boards in the big pools and the depths of the water at different parts are indicated by
appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a
recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards
who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety
of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use
of the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although
defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse
and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should
arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and
boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first
time that the three brothers had gone to said natatorium for they had already been there four or five times
before. They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they
immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong
told his brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon
hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did
not see the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on
duty in the pool compound, namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from
8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m.
and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside the
pool area and Manuel Abao was going around the pools to observe the bathers in compliance with the
instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard
Manuel Abao of the same happening and Abao immediately jumped into the big swimming pool and
retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge of
the pool and Abao immediately applied manual artificial respiration. Soon after, male nurse Armando Rule
came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone
from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine
kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in
order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abao continued the artificial
manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks
were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no
use because he found the boy already dead. The doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of
Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the
following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of the deceased the following: an abrasion
on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right
side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and
on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in
the visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in
water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article
provides that "whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damages done." Such fault or negligence is called quasi-delict. Under the second
article, this obligation is demandable not only for one's own acts or omissions but also for those of persons for
whom one is responsible. In addition, we may quote the following authorities cited in the decision of the trial
court:
"The rule is well settled that the owners of resorts to which people generally are expressly or by
implication invited are legally bound to exercise ordinary care and prudence in the management and
maintenance of such resorts, to the end of making them reasonably safe for visitors" (Larkin vs. Saltair
Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary
care in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed
to be the insurer of the safety of patrons. And the death of a patron within his premises does not cast
upon him the burden of excusing himself from any presumption of negligence" (Bertalot vs. Kinnare. 72
Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot
vs. Kinnare, supra, it was held that there could be no recovery for the death by drowning of a fifteen-
year boy in defendant's natatorium, where it appeared merely that he was lastly seen alive in water at
the shallow end of the pool, and some ten or fifteen minutes later was discovered unconscious, and
perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to be observed is
that the person claiming damages has the burden of proving that the damage is caused by the fault or
negligence of the person from whom the damage is claimed, or of one of his employees (Walter A. Smith &
Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or negligence on the part of appellee so as to render it
liable for damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the necessary precaution
to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who
may render help at a moment's notice, and they ascribed such negligence to appellee because the lifeguard it
had on the occasion minor Ong was drowning was not available or was attending to something else with the
result that his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and
Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom
of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abao did not immediately
respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and
allowed three or four minutes to elapse before retrieving the body from the water. This negligence of Abao,
they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is belied by the
written statements given by them in the investigation conducted by the Police Department of Quezon City
approximately three hours after the happening of the accident. Thus, these two boys admitted in the
investigation that they narrated in their statements everything they knew of the accident, but, as found by the
trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at the
gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason he
failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein
was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the
person under water who turned out to be his brother. For this reason, the trial court made this conclusion:
"The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to
immediately respond to their callmay therefore be disregarded because they are belied by their written
statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to
avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been
shown that the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen
resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure
clear visibility. There is on display in a conspicuous place within the area certain rules and regulations
governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a course
for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by
their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the
bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And
there are security guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge
of the pool, lifeguard Abao immediately gave him manual artificial respiration. Soon thereafter, nurse
Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy was abnormal, the inspector immediately injected him
with camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr.
Ayuyao from the University of the Philippines who however came late because upon examining the body he
found him to be already dead. All of the foregoing shows that appellee has done what is humanly possible
under the circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now
switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having
the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show how minor Ong came
into the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers
that he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what
happened to him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the
negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that
the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in law solely responsible for the
consequences of the accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by
an appreciable interval. Under these circumstances, the law is that a person who has the last clear
chance to avoid the impending harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went
there without any companion in violation of one of the regulations of appellee as regards the use of the pools,
and it appearing that lifeguard Aba__o responded to the call for help as soon as his attention was called to it
and immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order
to bring him back to life, it is clear that there is no room for the application of the doctrine now invoked by
appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand after the
peril is or should have been discovered; at least in cases in which any previous negligence of the party
charged cannot be said to have contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233,
350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find supported by the
evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties that
Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit
or bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and
which to his drowning. As a boy scout he must have received instructions in swimming. He knew, or have
known that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the
same, without pronouncement as to costs.
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo Dionisio was
on his way home he lived in 1214-B Zamora Street, Bangkal, Makati from a cocktails-and-dinner
meeting with his boss, the general manager of a marketing corporation. During the cocktails phase of the
evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just
crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his
home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly
failed. He switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2
meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right
hand side of a person facing in the same direction toward which Dionisio's car was proceeding), facing the
oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to
stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-called
"early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had earlier
that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio
claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some
permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that
the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the
dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered
that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the
accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix
also sought to establish that it had exercised due rare in the selection and supervision of the dump truck
driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the
latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the
replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income
for plaintiff brought about the accident in controversy and which is the result of the negligence
of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the
unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man;
mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation,
feeling of economic insecurity, and the untold sorrows and frustration in life experienced by
plaintiff and his family since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton
disregard of defendants to settle amicably this case with the plaintiff before the filing of this
case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's
fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was reduced
to P100,000.00,basically because Dionisio had voluntarily resigned his job such
that, in the opinion of the appellate court, his loss of income "was not solely
attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the appellate court
as excessive and unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's
fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the
inference that there was negligence on the part of Carbonel, the dump truck driver, and that this negligence
was the proximate cause of the accident and Dionisio's injuries. We note, however, that both courts failed to
pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the
accident was not the way in which the dump truck had been parked but rather the reckless way in which
Dionisio had driven his car that night when he smashed into the dump truck. The Intermediate Appellate Court
in its questioned decision casually conceded that Dionisio was "in some way, negligent" but apparently failed
to see the relevance of Dionisio's negligence and made no further mention of it. We have examined the record
both before the trial court and the Intermediate Appellate Court and we find that both parties had placed into
the record sufficient evidence on the basis of which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that
night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the
dump truck was parked, that negligence was merely a "passive and static condition" and that private
respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident
and the injuries he sustained. The need to administer substantial justice as between the parties in this case,
without having to remand it back to the trial court after eleven years, compels us to address directly the
contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's
alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just
before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights
before contact with the dump truck or whether those headlights accidentally malfunctioned moments before
the collision; and (d) whether Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the
testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the
explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two
years after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence
Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for
Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid
curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity
of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a
valid curfew pass during the night of the accident and that the preponderance of evidence shows that he did
not have such a pass during that night. The relevance of possession or non-possession of a curfew pass that
night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and
whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and
possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid
curfew pass.
On the second issue whether or not Dionisio was speeding home that night both the trial court and the
appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the
accident almost immediately after it occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that
Dionisio's car was "moving fast" and did not have its headlights on.
2
Dionisio, on the other hand, claimed that
he was travelling at a moderate speed at 30 kilometers per hour and had just crossed the intersection of
General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just
before the collision took place.
3

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

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

We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was
rather an indispensable and efficient cause. The collision between the dump truck and the private
respondent's car would in an probability not have occurred had the dump truck not been parked askew without
any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk
of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver
must be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck
driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause.
What the Petitioners describe as an "intervening cause" was no more than a foreseeable consequent manner
which the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to
private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver
had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were,
the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever
the juris vinculum of liability. It is helpful to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human
experience is reasonably to be anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and
customary wind arising later wig spread it beyond the defendant's own property, and therefore
to take precautions to prevent that event. The person who leaves the combustible or explosive
material exposed in a public place may foresee the risk of fire from some independent source.
... In all of these cases there is an intervening cause combining with the defendant's conduct to
produce the result and in each case the defendant's negligence consists in failure to protect the
plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial
and important part of the risk, to which the defendant has subjected the plaintiff has indeed
come to pass. Foreseeable intervening forces are within the scope original risk, and hence of
the defendant's negligence. The courts are quite generally agreed that intervening causes
which fall fairly in this category will not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual weather of the
vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog
or even lightning; that one who leaves an obstruction on the road or a railroad track should
foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable negligence of
others. ... [The standard of reasonable conduct may require the defendant to protect the plaintiff
against 'that occasional negligence which is one of the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff
to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable
when the plaintiff is run down by a car, even though the car is negligently driven; and one who
parks an automobile on the highway without lights at night is not relieved of responsibility when
another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent
Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179,
Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear
chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear
chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported
into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found
its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The
common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission
of the defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the
casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear
chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an
absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil
Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix
and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so.
Under Article 2179, the task of a court, in technical terms, is to determine whose negligence the plaintiff's or
the defendant's was the legal or proximate cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or
"intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's
negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more
fundamental importance are the nature of the negligent act or omission of each party and the character and
gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the
truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to
avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition
is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among the members of society. To accept the petitioners' pro-
position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer
Phoenix16 in supervising its employees properly and adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there
was work to be done early the following morning, when coupled with the failure to show any effort on the part
of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is
an affirmative showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative negligence of private respondent
Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the
demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of
the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the
balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to
the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the
petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for
disturbing the reduced award of damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount
of compensatory damages, loss of expected income and moral damages private respondent Dionisio is
entitled to by 20% of such amount. Costs against the petitioners.
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila
1
sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00
by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare
between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with
interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys'
fees; and the costs of suit.
On appeal,
2
the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes
on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to
Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness
Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the
seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class;
when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man"
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the
plane.
3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.
G.R. Nos. L-33138-39 June 27, 1975
BATANGAS LAGUNA TAYABAS BUS COMPANY, INC. and ANDRES I. ILAGAN, petitioners,
vs.
COURT OF APPEALS, SOTERO CARDEMA, EUFROCINA ALCALDE CARDEMA, MELQUISEDEC P.
ELIZONDO and MAXIMA T. ALCALDE, respondents.
Domingo E. de Lara and Associates for petitioners.
Manuel S. Gerong for private respondents.
FERNANDO, J.:
For a collision caused by the negligence of now petitioner Andres I. Ilagan, a driver of petitioner Batangas
Laguna Tayabas Bus Company, Inc., a suit was brought and damages awarded to private respondents,
1
both
by the lower court and thereafter respondent Court of Appeals. Hence this appeal by certiorari. The facts as
set forth in a well-written decision by Justice Jose N. Leuterio of respondent Court would leave no doubt as to
the reckless manner in which the bus was driven. The law as is but proper and just exacts responsibility for
the injury inflicted. There is, however, an effort to avoid the consequences of such culpable conduct by the
invocation of Corpus v. Paje.
2
It does not suffice. It has the appearance of a mere afterthought, a last-ditch
attempt to escape liability. Moreover, it is not applicable, even on the assumption that it is doctrinal, which is
not the case. No persuasiveness attaches to such a plea, when it is considered further that the opinion of
Justice Capistrano is misread. There is another objection based on the amount of damages awarded. It is
equally unavailing. The appealed decision is in conformity with law. There is no choice but to affirm.
The appealed decision starts with this statement of the case: "Civil Cases Nos. B-390 and B-391 of the Court
of First Instance of Laguna are for the recovery of actual, compensatory, and moral damages, with attorney's
fees, arising from a vehicular accident. It is alleged in both complaints that the accident was due to the
notorious negligence of the defendant driver, Andres I. Ilagan, who drove the bus of his co-defendant,
Batangas Transportation Company, now BLTBCo, without regard to existing traffic rules and regulations, and
without due attention to the welfare and safety of his passengers and those of oncoming vehicles, resulting in
the death of the owner driver of the Chevrolet car, Ricardo de los Reyes, and his companion, Jean
Elizondo, and causing serious physical injuries to Eufrocina Alcalde Cardema. The serious physical injuries
suffered by Eufrocina Alcalde Cardema is the subject of the complaint in Civil Case No. B-390, and the death
of Jean Elizondo in Civil Case No. B-391. The defenses in both cases are that there was no negligence on the
part of the driver defendant, Andres I. Ilagan, in driving and operating the Batangas Transportation Co. bus
bearing plate No. 5716; that Ilagan had driven the bus in a careful and prudent manner, and the accident was
beyond his control and was unforeseen despite the observation of extraordinary diligence; that the accident
was due to the negligence of Ricardo de los Reyes, or was fortuitous in character; and that defendant
company had exercised and continues to exercise extraordinary diligence in the management, supervision
and operation of its vehicles and personnel, including its drivers, in order to avoid injury to persons and to
prevent accidents, as far as human care and foresight can provide, using the utmost diligence of a very
cautious person, with due regard for all the circumstances. The two cases, having arisen from the same
incident, were tried jointly by agreement of the parties."
3
Then comes that portion dealing with the facts: "On
February 18, 1963, Ricardo de los Reyes left Calamba, Laguna, at about 5 o'clock in the-morning, driving his
Chevrolet car bearing Plate No. 7188 bound for Manila. Seated on the front seat beside him was his son,
Eduardo de los Reyes, and directly behind Ricardo was Eufrocina Alcalde Cardema, a cousin of Ricardo's
wife. On the right of Eufrocina was her niece, Jean Elizondo, and on the latter's right was Ursula Bayan. When
he reached the Manila South Super Highway, about 500 meters from the Air Force Station, in a straight and
level road, BTCO bus No. 316, bearing Plate No. 5716, driven by the defendant, Andres I. Ilagan and coming
from the opposite direction on its way to Lemery, suddenly overtook a big cargo truck. In so doing, the bus
took the left or the lane on which De los Reyes was travelling. Ricardo de los Reyes swerved to the right to
avoid the bus but it was too late. The bus was running so fast that notwithstanding that the Chevrolet car was
almost touching the shoulder of the road, the bus hit the car on the left front side up to the driver's door. The
bus continued travelling to the left and landed in an oblique but upright position on a canal about 30 feet from
the point of impact after narrowly missing an electric post. The car landed on the shoulder of the road about
15 feet from the point of impact. The point of impact was fixed by Policeman Guadarama at about the middle
of the left lane, where he found earth and broken glasses. Ricardo de los Reyes, Eufrocina Alcalde Cardema,
and Jean Elizondo were brought to the Philippine General Hospital. Ricardo de los Reyes died before he
could be brought to the operating room. Jean Elizondo was dead upon arrival to the PGH."
4
The reckless
manner in which petitioner Ilagan was driving was clearly set forth by Justice Leuterio in his opinion thus: "By
the appellants own admission, he was travelling on the inner lane of the highway going south. It does not
appear that there were vehicles towards his right. Under the circumstances, he would ordinarily be travelling
on the middle of the right lane and not close to the center line. That he was travelling close to the center line
corroborates the evidence for the plaintiffs that he overtook a big cargo truck, and consequently took the left
lane going south or the right lane going north, or the lane of De los Reyes, who was travelling north. To
overtake the cargo truck, Ilagan had to run faster than the cargo truck, so that Ilagan's testimony that he was
running only at about 40 kms. per hour at the time of the accident obviously cannot be true. At that hour in the
morning at about 6.00 o'clock, and this is supported by the evidence, there were very few vehicles travel ling
on the Super Highway. The cargo truck certainly must be travelling at least 40 kms. if not more than 40 kms.
per hour. To overtake the cargo truck, the appellant must have to run not less than 60 kms. per hour. Hence,
the testimonies of Cardema and Villas that the bus was running fast. The testimonies of Vias and Cardema
that the bus suddenly swerved to the left is further corroborated by Ilagan's testimony that he did not see the
rut. He did not see the rut because he was following the cargo truck and was running fast. His attention at that
time was focused on the cargo truck and the left lane. And further proving that the appellant was running at a
high speed was the fact that after the impact, his bus ran for another 30 feet and would have ran farther had it
not fallen into the canal. In suddenly overtaking the big cargo truck, Ilagan had acted with reckless
imprudence, for he should have seen, and must have seen the Chevrolet car coming from the opposite
direction. It is reckless imprudence to overtake a vehicle and take the left lane when another vehicle is coming
from the opposite direction. Due regard for the safety of his passengers and other vehicles demand that a
driver should not overtake another vehicle and take the left lane unless the road is clear and overtaking can
be done safely. This precaution Ilagan had failed to take. Instead, he recklessly and imprudently took the left
lane without regard to oncoming vehicles. This imprudence resulted in death to two persons and serious
physical injuries to Eufrocina. To say that the accident was due to the negligence of Ricardo de los Reyes,
who under the doctrine of the last clear chance, should have avoided the accident, or, that at least De los
Reyes was guilty of contributory negligence, is to add insult to injury, and to desecrate the memory of one who
can no longer defend himself. De los Reyes was in his proper lane and where he had a right to be.
Nevertheless, he did what he could do under the circumstances to avoid the accident. He swerved to the right
to avoid the onrushing bus, but the appellant was running so fast and his act was so sudden that all his efforts
to avoid the bus were rendered futile. We cannot understand how de los Reyes could be charged with
negligence, or even contributory negligence, when there is absolutely no evidence that de los Reyes, who was
where he had a right to be, had seen the bus in time to avoid the accident. Contributory negligence cannot be
presumed, and the appellants are as much duty-bound to prove this defense as it was the duty of the plaintiffs
to prove defendant's negligence. By the way, there is absolutely no evidence in the record that de los Reyes
was trying to overtake another vehicle before the accident."
5

With such undisputable facts, it is difficult to imagine an instance of a clearer case of liability rightfully imposed
by law on the parties responsible for the injury afflicted. Even petitioners could not possibly be unaware till
such indeed should be the case. That may explain why stress is laid in their brief on a procedural objection
invokingCorpus v. Paje.
6
To repeat, it is impressed with futility. Nor is there any validity to the contention
finding fault with the award of damages.
1. The principal reliance of petitioners is on that portion of the opinion of Justice Capistrano in Corpus v.
Pajewhich reads thus: "As reckless imprudence or criminal negligence is not one to the three crimes
mentioned in Article 33 of the Civil Code, there is no independent civil action for damages that may be
instituted in connection with said offense. Hence, homicide through reckless imprudence or criminal
negligence comes under the general rule that the acquittal of the defendant in the criminal action is a bar to
his civil liability based upon the same criminal act notwithstanding that the injured party reserved his right to
institute a separate civil action (Chantangeo vs. Abarao, supra). In the language of the Rules of Court (Rule
111 Sec. 3) the extinction of the criminal action by acquittal of the defendant on the ground that the criminal
act charged against him did not exist, necessarily extinguished also the civil action for damages based upon
the same
act,"
7
From which, they would infer that "the criminal action against petitioner Ilagan must first be resolved by
respondent Court of Appeals and, until final resolution thereon, it is premature to proceed in the two civil
cases."
8

Petitioners would make much of the above-cited portion of the opinion of Justice Capistrano. That is to rely on
a frail reed, to clutch at straws. As pointed out in the brief for private respondents, such an objection was
never raised in the lower court as well as in the Court of Appeals and therefore came too late. Moreover, the
facts are dissimilar, and therefore its ruling cannot control. It cannot escape attention likewise that less than a
majority of the Court gave their approval to the opinion penned by Justice Capistrano. The most serious
objection though is that the interpretation sought to be fastened by petitioners, considering that as pointed out
in the appealed decision this is an action based on culpa aquiliana, is its disregard of codal provisions as well
as of an impressive number of pronouncements of this Tribunal.
It is undoubted that it is only when this case was elevated to this Court in this appeal by certiorari that the
opinion of Justice Capistrano in Corpus v. Pale was invoked. It is well-settled that for an error to be imputed to
a lower court or to the Court of Appeals, there must be a showing that there was a disregard by it of a rule or
principle of law seasonably raised. In an attempt to evade the applicability of this norm, petitioners, in their
reply brief, could only allege that such decision "did not come to the attention of many legal practitioners until
the full text thereof was reproduced in the Supreme Courts Reports, Annotated." 9 If that were so, such
negligence should not prejudice private respondents. Corpus v. Paje was decided on July 31, 1969. The
decision of the Court of Appeals was promulgated on November 19, 1970. There was thus a period of one
year and four months within which such a point could be pressed. What is more, there was likewise the
additional time for filing a motion for reconsideration where this issue could be submitted for resolution.
Petitioners did neither; they only have themselves then to blame. There is no reason why this Court should
depart from its constant holding that a question of law save in very exceptional circumstances cannot be
raised for the first time on appeal.
10

Petitioners, moreover, ignored the crucial distinction that is readily discernible between the facts in Corpus v.
Pajeand the facts in the present case. As was pointed out in the opinion of Justice Capistrano, the civil action
for damages was made to rest "upon the same criminal negligence" of which the defendant Felardo Paje was
acquitted in the criminal action. From the opening paragraph of the opinion of the Court of Appeals, now
sought to be reviewed, it is quite apparent that the liability of petitioners was not predicated on criminal
negligence but rather on a quasi-delict which, as is clearly pointed out by the Civil Code, is an independent
source of obligation.
11
The accident in Corpus occurred on December 23, 1956 and the civil action was not
instituted until November 21, 1961 during the pendency of the appeal in a criminal case in the Court of
Appeals. On the other hand, in this case, it was only a matter of months, the mishap having taken place on
February 18, 1963 and the case being filed in July of the same year, when the civil action precisely to hold
petitioners liable for the quasi-delict was filed by private respondent. As a matter of fact, in Corpus, the civil
complaint was dismissed by the lower court precisely on the ground that the action based upon the quasi-
delict had prescribed.
12
That certainly cannot be said of the present litigation. From the beginning both parties
were fully aware that it was the negligence of petitioner Ilagan as driver of petitioner Batangas Laguna
Tayabas Bus Company, Inc. that gave rise to the civil suit. It does not admit of doubt therefore that the
invocation of Corpus v. Paje is misplaced considering the dissimilarity in the facts of the case and the equally
relevant consideration that the portion of the ponencia of Justice Capistrano, insofar as it could be made to
lend support to petitioner's plea, is not doctrinal in character lacking one vote for it to be the expression of the
opinion of this Court.
13

Nor is this all. It is to misread the opinion of Justice Capistrano in Paje if it is made to yield a significance that
would under the circumstances of this case reduce to a barren form of words the jural concept of a quasi-
delict as an independent source of obligation. The law is anything but that. The Civil Code speaks
unequivocally to the contrary. Article 2176 provides: "Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no
existing contractual relations between the parties, is called a quasi-delict and is governed by the provisions of
this Chapter."
14
The liability of an employer is made clear, under Article 2180 in this wise: "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."
15
So it was under the
former Civil Code, although there is a slight difference in phraseology.
16
What is more, there is this new
provision in Article 2177: "Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant."
17
This Court in appropriate cases has
given force and effectivity to the mandates thus so clearly expressed. That was the tenor of decisions when
the former Civil Code was still operative, starting from Donaldson, Sim and Co. v, Smith, Bell and
Co.
18
promulgated in 1902. Then, in 1907 in the leading case of Rakes v. Atlantic, Gulf and Pacific
Co.,
19
Manresa was quoted to the effect that culpa or negligence or culpa aquiliana is an independent source
of obligation between two persons not so formerly bound by any juridical tie. The civil liability that may arise
according to Justice Tracey in his opinion "was not intended to be merged in the criminal ... . Where an
individual is civilly liable for a negligent act or omission, it is not required that the injured party should seek out
a third person criminally liable whose prosecution must be a condition precedent to the enforcement of the
civil right."
20
As was well put by Justice Torres in Novo v. Ainsworth,
21
decided in 1913: "This liability is
contracted without agreement or consent of the person found liable, on the principle that in all cases where
harm, loss, or damage has been caused to a person or to his rights by an act or omission, the aggrieved party
is entitled to be indemnified ... ."
22
Justice Fisher in another leading case, Cangco v. Manila Railroad
Co.
23
turned once more to Manresa's formulation of the basic doctrine that "liability arising from
extracontractual culpa is always based upon a voluntary act or omission which, without willful intent, but by
mere negligence or inattention, has caused damage to another."
24
As correctly stressed by Justice Street,
what was set forth in Article 1902 of the former Civil Code is a "general doctrine of jurisprudence."
25

The first assigned error relying on the rather forced interpretation accorded certain passages in Corpus v.
Paje is thus clearly bereft of any persuasive force.
2. It is not too far-fetched to impute to petitioners an awareness that to deny liability under the circumstances
would be an indefensible posture, devoid of support in law no less than in morals. That may explain why in the
next two errors assigned, what is sought is merely to minimize the amount of the damages for which they
were held liable by the Court of Appeals. In their second and third assignment of errors, they would seek a
reduction of P4,988.84 found by both the lower court and the Court of Appeals as actual hospital expenses
incurred by private respondent Eufrocina Alcalde Cardema and of P8,000.00 for the loss of earnings of the
deceased daughter, Jean Elizondo, of private respondents Melquisedec P. Elizondo and Maxima T. Alcalde.
Reference to the appealed decision should readily make obvious that no such errors were committed. Thus:
"We have examined the damages awarded by the Court a quo and we find them to be moderate and
reasonable. The award of P4,988.84 for the hospitalization of Eutrocina Alcalde Cardema is supported by the
statement of account of the Manila Railroad Hospital. It was certified to by Eufrocina Cardema and by the
supervising auditor of the MRR Hospital. The fees of Dr. Alcantara of P3,000.00 is reasonable and moderate
considering that he had performed two operations, and Eufrocina was under the care of Dr. Alcantara for 72
days in the hospital and even after her discharge from the hospital, she had to report for follow-up
examination. There is even the probability of another operation should there be a tissue reaction. The award
of P3,000.00 for reduction of income of Eufrocina Cardema is also reasonable because as a result of the
injuries which she had suffered and because of the operations, Eufrocina Cardema can no longer engage in
her former occupation of maintaining a boarding house. The award of P4,000.00 moral damages is
reasonable considering the serious injuries that she had suffered consisting of broken bones, the operations
that she underwent, and her physical pain and suffering. The award of the attorney's fees of P1,000.00 is
likewise moderate because she was forced to litigate to enforce her claim. The award of P8,000.00 for the
death of Jean Elizondo is even below the amount now allowed for death due to the act of the defendant. At
the time of her death, Jean Elizondo was 18 years old, a bright student, and was in the second year college
taking up chemical engineering. Obviously, if she had lived, she would have finished her course and would
have earned much more than P8,000.00. Moral damages awarded at P6,000.00 is likewise reasonable. One
would never know the pain, the sleepless nights, the torment that one suffers for the loss of a child in the
prime of life. Certainly, the amount of P6,000.00 cannot assuage the loss of a daughter. Attorney's fees in the
amount of P2,000.00 likewise is reasonable, defendant company having forced plaintiff to litigate. We also
take into consideration that the defendant is a big corporation operating hundreds of vehicles. Certainly the
amount awarded is not incompatible with the resources of the appellant company. It is after all a part of the
overhead expenses of the defendant."
26
It may be added that the finding as to the amount of P4,988.84 for
the hospitalization expenses is essentially one of fact and is not to be disturbed on appeal. It ill behooves
petitioners to complain about the "speculative" character of the amount of P8,000.00 for the death of Jean
Elizondo. The victim of their misdeed was at the threshold of youth, a lass of eighteen, then in the second year
of a chemical engineering course, and in the language of the decision, "a bright student." 1wph1.t
27
If any
body could complain then, it is her parents. What was awarded, as noted by Justice Leuterio, was admittedly
less than that allowed by law. There ought to be a realization even on the part of petitioners that what was
said by Justice Malcolm in Bernal v. House
28
is more than just mere rhetoric. As was so vividly put by him,
"there is not enough money in the entire world to compensate a mother for the death of her child."
29
In the
traditional legal parlance, to quote Chief Justice Concepcion, "life expectancy is not only relevant, but, also,
an important element in fixing the amount recoverable ... .
30
It would be then to disregard what has been so
constantly and uninterruptedly adhered to if petitioners would have their way. To allow such a thing to happen
would be a grave disservice to the law.
31

WHEREFORE, the appealed decision of November 19, 1970 is affirmed. Costs against petitioners.
G.R. No. L-35095 August 31, 1973
GERMAN C. GARCIA, LUMINOSA L. GARCIA, and ESTER FRANCISCO, petitioners,
vs.
THE HONORABLE MARIANO M. FLORIDO OF THE COURT OF FIRST INSTANCE OF MISAMIS
OCCIDENTAL, MARCELINO INESIN, RICARDO VAYSON, MACTAN TRANSIT CO., INC., and PEDRO
TUMALA Y DIGAL,respondents.
Paulino A. Conol for petitioners.
Dominador M. Canastra and Wilfredo C. Martinez for private respondents.
Hon. Mariano M. Florido for and in his own behalf.
ANTONIO, J.:
Appeal by certiorari from the decision of the Court of First Instance of Misamis Occidental, Branch III, in Civil
Case No. 2850 (German C. Garcia, et al. vs. Marcelino Inesin et al.) dated October 21, 1971, dismissing
petitioners' action for damages against respondents, Mactan Transit Co., Inc. and Pedro Tumala "without
prejudice to refiling the said civil action after conviction of the defendants in the criminal case filed by the Chief
of Police of Sindangan Zamboanga del Norte", and from the order of said Court dated January 21, 1972,
denying petitioners' motion for reconsideration.
On August 4, 1971, petitioners, German C. Garcia, Chief of the Misamis Occidental Hospital, together with his
wife, Luminosa L. Garcia, and Ester Francisco, bookkeeper of said hospital, hired and boarded a PU car with
plate No. 241-8 G Ozamis 71 owned and operated by respondent, Marcelino Inesin, and driven by
respondent, Ricardo Vayson, for a round-trip from Oroquieta City to Zamboanga City, for the purpose of
attending a conference of chiefs of government hospitals, hospital administrative officers, and bookkeepers of
Regional Health Office No. 7 at Zamboanga City. At about 9:30 a.m., while the PU car was negotiating a slight
curve on the national highway at kilometer 21 in Barrio Guisukan, Sindangan, Zamboanga del Norte, said car
collided with an oncoming passenger bus (No. 25) with plate No. 77-4 W Z.N. 71 owned and operated by the
Mactan Transit Co., Inc. and driven by defendant, Pedro Tumala. As a result of the aforesaid collision,
petitioners sustained various physical injuries which necessitated their medical treatment and hospitalization.
Alleging that both drivers of the PU car and the passenger bus were at the time of the accident driving their
respective vehicles at a fast clip, in a reckless, grossly negligent and imprudent manner in gross violation of
traffic rules and without due regard to the safety of the passengers aboard the PU car, petitioners, German C.
Garcia, Luminosa L. Garcia, and Ester Francisco, filed on September 1, 1971 with respondent Court of First
Instance of Misamis Occidental an action for damages (Civil Case No. 2850) against the private respondents,
owners and drivers, respectively, of the PU car and the passenger bus that figured in the collision, with prayer
for preliminary attachment.
On September 16, 1971, Marcelino Inesin and Ricardo Vayson filed their answer in the aforementioned Civil
Case No. 2850 admitting the contract of carriage with petitioners but alleged, by way of defense, that the
accident was due to the negligence and reckless imprudence of the bus driver, as when Ricardo Vayson,
driver of the PU car, saw the oncoming passenger bus No. 25 coming from the opposite direction ascending
the incline at an excessive speed, chasing another passenger bus, he had to stop the PU car in order to give
way to the passenger bus, but, in spite of such precaution, the passenger bus bumped the PU car, thus
causing the accident in question, and, therefore, said private respondents could not be held liable for the
damages caused on petitioners.
On September 29, 1971, respondents, Mactan Transit Co., Inc. and Pedro Tumala, filed a motion to dismiss
on three (3) grounds, namely: 1) that the plaintiffs (petitioners) had no cause of action; 2) that the complaint
carries with it a prayer for attachment but without the requisite verification, hence defective under the provision
of Sec. 3, Rule 57 of the Rules of Court; and 3) that the defendants (respondents), Mactan Transit Co., Inc.
and its driver, accused Pedro Tumala, had operated said passenger bus with maximum care and prudence.
The principal argument advanced in said motion to dismiss was that the petitioners had no cause of action for
on August 11, 1971, or 20 days before the filing of the present action for damages, respondent Pedro Tumala
was charged in Criminal Case No. 4960 of the Municipal Court of Sindangan, Zamboanga del Norte, in a
complaint filed by the Chief of Police for "double serious and less serious physical injuries through reckless
imprudence", and that, with the filing of the aforesaid criminal case, no civil action could be filed subsequent
thereto unless the criminal case has been finally adjudicated, pursuant to Sec. 3 of Rule 111 of the Rules of
Court, and, therefore, the filing of the instant civil action is premature, because the liability of the employer is
merely subsidiary and does not arise until after final judgment has been rendered finding the driver, Pedro
Tumala guilty of negligence; that Art. 33 of the New Civil Code, is not applicable because Art. 33 applied only
to the crimes of physical injuries or homicide, not to the negligent act or imprudence of the driver.
On October 14, 1971, petitioners filed an opposition to said motion to dismiss alleging that the aforesaid action
for damages was instituted not to enforce the civil liability of the respondents under Art. 100 of the Revised
Penal Code but for their civil liability on quasi-delicts pursuant to Articles 2176-2194, as the same negligent
act causing damages may produce civil liability arising from a crime under the Revised Penal Code or create
an action for quasi-delict or culpa extra-contractual under the Civil Code, and the party seeking recovery is
free to choose which remedy to enforce.
In dismissing the complaint for damages in Civil Case No. 2850, the lower court sustained the arguments of
respondents, Mactan Transit Co., Inc. and Pedro Tumala, and declared that whether or not "the action for
damages is based on criminal negligence or civil negligence known as culpa aquiliana in the Civil Code or tort
under American law" there "should be a showing that the offended party expressly waived the civil action or
reserved his right to institute it separately" and that "the allegations of the complaint in culpa aquiliana must
not be tainted by any assertion of violation of law or traffic rules or regulations" and because of the prayer in
the complaint asking the Court to declare the defendants jointly and severally liable for moral, compensatory
and exemplary damages, the Court is of the opinion that the action was not based on "culpa aquiliana or
quasi-delict."
Petitioners' motion for reconsideration was denied by the trial court on January 21, 1972, hence this appeal
oncertiorari.
There is no question that from a careful consideration of the allegations contained in the complaint in Civil
Case No. 2850, the essential averments for a quasi-delictual action under Articles 2176-2194 of the New Civil
Code are present, namely: a) act or omission of the private respondents; b) presence of fault or negligence or
the lack of due care in the operation of the passenger bus No. 25 by respondent Pedro Tumala resulting in the
collision of the bus with the passenger car; c) physical injuries and other damages sustained by petitioners as
a result of the collision; d) existence of direct causal connection between the damage or prejudice and the
fault or negligence of private respondents; and e) the absence of pre-existing contractual relations between
the parties. The circumstance that the complaint alleged that respondents violated traffic rules in that the
driver drove the vehicle "at a fast clip in a reckless, grossly negligent and imprudent manner in violation of
traffic rules and without due regard to the safety of the passengers aboard the PU car" does not detract from
the nature and character of the action, as one based on culpa aquiliana. The violation of traffic rules is merely
descriptive of the failure of said driver to observe for the protection of the interests of others, that degree of
care, precaution and vigilance which the circumstances justly demand, which failure resulted in the injury on
petitioners. Certainly excessive speed in violation of traffic rules is a clear indication of negligence. Since the
same negligent act resulted in the filing of the criminal action by the Chief of Police with the Municipal Court
(Criminal Case No. 4960) and the civil action by petitioners, it is inevitable that the averments on the drivers'
negligence in both complaints would substantially be the same. It should be emphasized that the same
negligent act causing damages may produce a civil liability arising from a crime under Art. 100 of the Revised
Penal Code or create an action for quasi-delict or culpa extra-contractual under Arts. 2176-2194 of the New
Civil Code. This distinction has been amply explained in Barredo vs. Garcia, et al. (73 Phil. 607, 620-621).
1

It is true that under Sec. 2 in relation to Sec. 1 of Rule 111 of the Revised Rules of Court which became
effective on January 1, 1964, in the cases provided for by Articles 31, 33, 39 and 2177 of the Civil Code, an
independent civil action entirely separate and distinct from the civil action, may be instituted by the injured
party during the pendency of the criminal case, provided said party has reserved his right to institute it
separately, but it should be noted, however, that neither Section 1 nor Section 2 of Rule 111 fixes a time limit
when such reservation shall be made. In Tactaquin v. Palileo,
2
where the reservation was made after the tort-
feasor had already pleaded guilty and after the private prosecutor had entered his appearance jointly with the
prosecuting attorney in the course of the criminal proceedings, and the tort-feasor was convicted and
sentenced to pay damages to the offended party by final judgment in said criminal case, We ruled that such
reservation is legally ineffective because the offended party cannot recover damages twice for the same act or
omission of the defendant. We explained in Meneses vs. Luat
3
that when the criminal action for physical
injuries against the defendant did not proceed to trial as he pleaded guilty upon arraignment and the Court
made no pronouncement on the matter or damages suffered by the injured party, the mere appearance of
private counsel in representation of the offended party in said criminal case does not constitute such active
intervention as could impart an intention to press a claim for damages in the same action, and, therefore,
cannot bar a separate civil action for damages subsequently instituted on the same ground under Article 33 of
the New Civil Code.
In the case at bar, there is no question that petitioners never intervened in the criminal action instituted by the
Chief of Police against respondent Pedro Tumala, much less has the said criminal action been terminated
either by conviction or acquittal of said accused.
It is, therefore, evident that by the institution of the present civil action for damages, petitioners have in effect
abandoned their right to press recovery for damages in the criminal case, and have opted instead to recover
them in the present civil case.
As a result of this action of petitioners the civil liability of private respondents to the former has ceased to be
involved in the criminal action. Undoubtedly an offended party loses his right to intervene in the prosecution of
a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but
also when he has actually instituted the civil action. For by either of such actions his interest in the criminal
case has disappeared.
As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising
from crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation of the
criminal law, while the latter is a distinct and independent negligence, having always had its own foundation
and individuality. Some legal writers are of the view that in accordance with Article 31, the civil action based
upon quasi-delict may proceed independently of the criminal proceeding for criminal negligence and
regardless of the result of the latter. Hence, "the proviso in Section 2 of Rule 111 with reference to ... Articles
32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for these articles were
drafted ... and are intended to constitute as exceptions to the general rule stated in what is now Section 1 of
Rule 111. The proviso which is procedural, may also be regarded as an unauthorized amendment of
substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation required in
the proviso."
4
But in whatever way We view the institution of the civil action for recovery of damages under
quasi-delict by petitioners, whether as one that should be governed by the provisions of Section 2 of Rule 111
of the Rules which require reservation by the injured party considering that by the institution of the civil action
even before the commencement of the trial of the criminal case, petitioners have thereby foreclosed their right
to intervene therein, or one where reservation to file the civil action need not be made, for the reason that the
law itself (Article 33 of the Civil Code) already makes the reservation and the failure of the offended party to
do so does not bar him from bringing the action, under the peculiar circumstances of the case, We find no
legal justification for respondent court's order of dismissal.
WHEREFORE, the decision and order appealed from are hereby reversed and set aside, and the court a
quo is directed to proceed with the trial of the case. Costs against private respondents.
Zaldivar, Castro Fernando, Teehankee, Makasiar and Esguerra, JJ., concur.
Makalintal, Actg., C.J., concurs in the result.
Separate Opinions
BARREDO, J., concurring:
I would like to limit my concurrence.
I believe that the only substantive legal provision involved in this case are Articles 2176 and 2177 of the Civil
Code which read as follows:
ART 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
ART 2177. Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the defendant.
These provisions definitely create a civil liability distinct and different from the civil action arising from the
offense of negligence under the Revised Penal Code. Since Civil Case No. 2850 is predicated on the above
civil code articles and not on the civil liability imposed by the Revised Penal Code, I cannot see why a
reservation had to be made in the criminal case. As to the specific mention of Article 2177 in Section 2 of the
Rule 111, it is my considered view that the latter provision is inoperative, it being substantive in character and
is not within the power of the Supreme Court to promulgate, and even if it were not substantive but adjective, it
cannot stand because of its inconsistency with Article 2177, an enactment of the legislature superseding the
Rules of 1940.
Besides, the actual filing of Civil Case No. 2850 should be deemed as the reservation required, there being no
showing that prejudice could be caused by doing so.
Accordingly, I concur in the judgment reversing the order of dismissal of the trial court in order that Civil Case
No. 2850 may proceed, subject to the limitation mentioned in the last sentence of Article 2177 of the Civil
Code, which means that of the two possible judgments, the injured party is entitled exclusively to the bigger
one.
G.R. No. L-27760 May 29, 1974
CRISPIN ABELLANA and FRANCISCO ABELLANA, petitioners,
vs.
HONORABLE GERONIMO R. MARAVE, Judge, Court of First Instance of Misamis Occidental, Branch
II; and GERONIMO CAMPANER, MARCELO LAMASON, MARIA GURREA, PACIENCIOSA FLORES and
ESTELITA NEMEN0, respondents.
Prud. V. Villafuerte for petitioners.
Hon. Geronimo R. Marave in his own behalf.
FERNANDO, J.:p
This petition for certiorari is characterized by a rather vigorous insistence on the part of petitioners Crispin
Abellana and Francisco Abellana that an order of respondent Judge was issued with grave abuse of
discretion. It is their contention that he ought to have dismissed an independent civil action filed in his court,
considering that the plaintiffs, as offended parties, private respondents here,
1
failed to reserve their right to
institute it separately in the City Court of Ozamis City, when the criminal case for physical injuries through
reckless imprudence was commenced. Such a stand of petitioners was sought to be bolstered by a literal
reading of Sections 1 and 2 of Rule 111.
2
It does not take into account, however, the rule as to a trial de
novo found in Section 7 of Rule 123.
3
What is worse, petitioners appear to be oblivious of the principle that if
such an interpretation were to be accorded the applicable Rules of Court provisions, it would give rise to a
grave constitutional question in view of the constitutional grant of power to this Court to promulgate rules
concerning pleading, practice, and procedure being limited in the sense that they "shall not diminish, increase,
or modify substantive rights."
4
It thus appears clear that the petition for certiorari is without merit.
The relevant facts were set forth in the petition and admitted in the answer. The dispute had its origins in a
prosecution of petitioner Francisco Abellana of the crime of physical injuries through reckless imprudence in
driving his cargo truck, hitting a motorized pedicab resulting in injuries to its passengers, namely, private
respondents Marcelo Lamason, Maria Gurrea, Pacienciosa Flores, and Estelita Nemeo. The criminal case
was filed with the city court of Ozamis City, which found the accused Francisco Abellana guilty as charged,
damages in favor of the offended parties likewise being awarded. The accused, now petitioner, Francisco
Abellana appealed such decision to the Court of First Instance.
5
At this stage, the private respondents as the
offended parties filed with another branch of the Court of First Instance of Misamis Occidental, presided by
respondent Judge, a separate and independent civil action for damages allegedly suffered by them from the
reckless driving of the aforesaid Francisco Abellana.
6
In such complaint, the other petitioner, Crispin Abellana,
as the alleged employer, was included as defendant. Both of them then sought the dismissal of such action
principally on the ground that there was no reservation for the filing thereof in the City Court of Ozamis. It was
argued by them that it was not allowable at the stage where the criminal case was already on appeal.
7

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

WHEREFORE, this petition for certiorari is dismissed.
Costs against petitioners.
[G.R. No. 70890. September 18, 1992.]

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

Alex Y. Tan, for Petitioners.

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

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL
OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. The parents are and should be held
primarily liable for the civil liability arising from criminal offenses committed by their minor children under their
legal authority or control, or who live in their company, unless it is proven that the former acted with the
diligence of a good father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their
children 9 years of age or under, or over 9 but under 15 years of age who acted without discernment; and,
with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over
but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.
Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of
his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides
that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in
case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. However, under the Family Code, this civil liability is now,
without such alternative qualification, the responsibility of the parents and those who exercise parental
authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same
rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.
D E C I S I O N
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic
illustration is provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter
episode for those whose lives they have touched. While we cannot expect to award complete assuagement to
their families through seemingly prosaic legal verbiage, this disposition should at least terminate the acrimony
and rancor of an extended judicial contest resulting from the unfortunate occurrence.

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

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

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ATTY. ORTIZ:chanrob1es virtual 1aw library

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

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

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

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

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


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


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

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

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

WITNESS:chanrob1es virtual 1aw library

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

ATTY. SENINING:chanrob1es virtual 1aw library

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

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

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

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

"ATTY. ORTIZ: (TO WITNESS).

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

WITNESS:chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS:chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS:chanrob1es virtual 1aw library

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.
G.R. No. 82465 February 25, 1991
ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO
LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA
CADIZ, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA
CADIZ,respondents.
Jose C. Flores, Jr. for petitioners.
Jovito E. Talabong for private respondents.
PARAS, J.:p
This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads:
WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications:
(1) Exemplary damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in
addition to the actual damages of P30,000.00, moral damages of P20,000.00 and attorney's
fees in the amount of P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St.
Francis High School, represented by the Spouses Fernando Nantes and Rosario Lacandula,
and Benjamin Illumin, are hereby held jointly and severally liable with defendants Connie
Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the
abovementioned actual damages, moral damages, exemplary damages and attorney's fees,
and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from
liability, and the case against them, together with their respective counterclaims, is hereby
ordered dismissed.
SO ORDERED. (p. 60, Rollo)
The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High
School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya,
Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of
short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the picnic,
with the directive that he should go back home after doing so. However, because of persuasion of the
teachers, Ferdinand went on with them to the beach.
During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers
was apparently drowning. Some of the students, including Ferdinand, came to her rescue, but in the process,
it was Ferdinand himself who drowned. His body was recovered but efforts to resuscitate him ashore failed.
He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where
he was pronounced dead on arrival.
Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial
Court, Branch LVIII of Lucena City, against the St. Francis High School, represented by the spouses
Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves,
Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents
allegedly incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that the death of
their son was due to the failure of the petitioners to exercise the proper diligence of a good father of the family
in preventing their son's drowning, respondents prayed of actual, moral and exemplary damages, attorney's
fees and expenses for litigation.
The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas,
Aragones, Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum of
P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the
costs. The court a quo reasoned:
Taking into consideration the evidence presented, this Court believes that the defendant
teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and
Patria Cadiz had failed to exercise the diligence required of them by law under the
circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo)
xxx xxx xxx
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site,
the drowning incident had already occurred, such fact does not and cannot excuse them from
their liability. In fact, it could be said that by coming late, they were remiss in their duty to
safeguard the students. (p. 30, Rollo)
The students, young as they were then (12 to 13 years old), were easily attracted to the sea
without aforethought of the dangers it offers. Yet, the precautions and reminders allegedly
performed by the defendants-teachers definitely fell short of the standard required by law under
the circumstances. While the defendants-teachers admitted that some parts of the sea where
the picnic was held are deep, the supposed lifeguards of the children did not even actually go
to the water to test the depth of the particular area where the children would swim. And indeed
the fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that
three persons during the picnic got drowned at the same time. Had the defendant teachers
made an actual and physical observation of the water before they allowed the students to swim,
they could have found out that the area where the children were swimming was indeed
dangerous. And not only that, the male teachers who according to the female teachers were
there to supervise the children to ensure their safety were not even at the area where the
children were swimming. They were somewhere and as testified to by plaintiffs' witness they
were having a drinking spree. (pp. 55-56, Rollo)
On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin
and Aurora Cadorna. Said the court a quo:
As shown and adverted to above, this Court cannot find sufficient evidence showing that the
picnic was a school sanctioned one. Similarly no evidence has been shown to hold defendants
Benjamin Illumin and Aurora Cadorna responsible for the death of Ferdinand Castillo together
with the other defendant teachers. It has been sufficiently shown that Benjamin Illumin had
himself not consented to the picnic and in fact he did not join it. On the other hand, defendant
Aurora Cadorna had then her own class to supervise and in fact she was not amongst those
allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo
belongs. (p. 30, Rollo)
Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the
following errors committed by the trial court:
1. The lower court erred in not declaring the defendant St. Francis High School and its
administrator/principal Benjamin Illumin as equally liable not only for its approved co-curricular
activities but also for those which they unreasonably failed to exercise control and supervision
like the holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon.
2. The lower court erred in not declaring the St. Francis High School and principal Benjamin
Illumin as jointly and solidarily liable with their co-defendants-teachers Rosario Lacandula, et
als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon,
last March 20, 1982.
3. The lower court erred in not declaring higher amount for actual and moral damages for the
untimely and tragic death of Ferdinand Castillo in favor of plaintiffs-appellants against all the
defendants. (pp. 56-57, Rollo)
The Court of Appeals ruled:
We find plaintiffs-appellants' submission well-taken.
Even were We to find that the picnic in question was not a school-sponsored activity,
nonetheless it cannot be gainsaid that the same was held under the supervision of the teachers
employed by the said school, particularly the teacher in charge of Class I-C to whom the victim
belonged, and those whom she invited to help her in supervising the class during the picnic.
Considering that the court a quo found negligence on the part of the six defendants-teachers
who, as such, were charged with the supervision of the children during the picnic, the St.
Francis High School and the school principal, Benjamin Illumin, are liable under Article 2176
taken together with the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They
cannot escape liability on the mere excuse that the picnic was not an "extra-curricular activity of
the St. Francis High School." We find from the evidence that, as claimed by plaintiffs-
appellants, the school principal had knowledge of the picnic even from its planning stage and
had even been invited to attend the affair; and yet he did not express any prohibition against
undertaking the picnic, nor did he prescribe any precautionary measures to be adopted during
the picnic. At the least, We must find that the school and the responsible school officials,
particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic.
Under Article 2180, supra, the defendant school and defendant school principal must be found
jointly and severally liable with the defendants-teachers for the damages incurred by the
plaintiffs as a result of the death of their son. It is the rule that in cases where the above-cited
provisions find application, the negligence of the employees in causing the injury or damage
gives rise to a presumption of negligence on the part of the owner and/or manager of the
establishment (in the present case, St. Francis High School and its principal); and while this
presumption is not conclusive, it may be overthrown only by clear and convincing proof that the
owner and/or manager exercised the care and diligence of a good father of a family in the
selection and/or supervision of the employee or employees causing the injury or damage (in
this case, the defendants-teachers). The record does not disclose such evidence as would
serve to overcome the aforesaid presumption and absolve the St. Francis High School and its
principal from liability under the above-cited provisions.
As to the third assigned error interposed by plaintiffs-appellants, while We cannot but
commiserate with the plaintiffs for the tragedy that befell them in the untimely death of their son
Ferdinand Castillo and understand their suffering as parents, especially the victim's mother
who, according to appellants, suffered a nervous breakdown as a result of the tragedy, We find
that the amounts fixed by the court a quo as actual damages and moral damages (P30,000.00
and P20,000.00, respectively) are reasonable and are those which are sustained by the
evidence and the law.
However, We believe that exemplary or corrective damages in the amount of P20,000.00 may
and should be, as it is hereby, imposed in the present case by way of example of correction for
the public good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo)
On the other hand, petitioners-teachers assigned the following errors committed by the trial court:
1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones,
Yoly Jaro and Patria Cadiz guilty of negligence and jointly and severally liable for damages
such finding not being supported by facts and evidence.
2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)
On this score, respondent Court ruled:
The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim
Ferdinand Castillo, were not able to prove by their evidence that they did not give their son
consent to join the picnic in question. However, We agree with the trial court in its finding that
whether or not the victim's parents had given such permission to their son was immaterial to the
determination of the existence of liability on the part of the defendants for the damage incurred
by the plaintiffs-appellants as a result of the death of their son. What is material to such a
determination is whether or not there was negligence on the part of defendants vis-a-vis the
supervision of the victim's group during the picnic; and, as correctly found by the trial court, an
affirmative reply to this question has been satisfactorily established by the evidence, as already
pointed out.
However, We sustain defendants-appellants insofar as two of the defendants-teachers, Yoly
Jaro and Nida Aragones, are concerned. As to them, the trial court found:
While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at
the picnic site, the drowning incident had already occurred, such fact does not
and cannot excuse them from their liability. In fact, it could be said that by
coming late, they were remiss in their duty to safeguard the students.
The evidence shows that these two defendants had satisfactorily explained why they were late
in going to the picnic site, namely, that they had to attend to the entrance examination being
conducted by the school which is part of their duty as teachers thereof. Since they were not at
the picnic site during the occurrence in question, it cannot be said that they had any
participation in the negligence attributable to the other defendants-teachers who failed to
exercise diligence in the supervision of the children during the picnic and which failure resulted
in the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the two
teachers, Yoly Jaro and Nida Aragones, as to make them liable for the injury caused to the
plaintiffs because of the death of their son resulting from his drowning at the picnic.
Accordingly, they must be absolved from any liability.
As to the second assigned error raised by defendants-appellants, We agree with the court a
quo that the counterclaim must be dismissed for lack of merit. (pp. 59-60, Rollo)
Hence, this petition.
The issues presented by petitioners are:
A) Whether or not there was negligence attributable to the defendants which will warrant the
award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the
case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the
circumstances surrounding the case at bar. (pp. 81-82, Rollo)
In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit
their respective memoranda.
The petition is impressed with merit.
If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of
people under them. In the instant case however, as will be shown hereunder, petitioners are neither guilty of
their own negligence or guilty of the negligence of those under them.
Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable
for damages of any kind.
At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to
join the excursion.
Testimony of Dr. Castillo on cross exam. by Atty. Flores
Q Now, when your son asked you for money to buy food, did you not ask him
where he will bring this?
A I asked him where he was going, he answered, I am going to the picnic, and
when I asked him where, he did not answer, sir.
Q And after giving the money, you did not tell him anything more?
A No more, sir.
Q And after that you just learned that your son join the picnic?
A Yes, sir.
Q And you came to know of it after the news that your son was drowned in the
picnic came to you, is that correct?
A Yes, sir.
Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982,
you did not know that your son join the picnic?
A No, sir, I did not know.
Q Did you not look for your son during that time?
A I am too busy with my profession, that is why I was not able, sir.
Q You did not ask your wife?
A I did not, sir.
Q And neither did your wife tell you that your son join the picnic?
A Later on after 12:00, sir.
Q And during that time you were too busy that you did not inquire whether your
son have joined that picnic?
A Yes, sir.
(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)
The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is
a sign of consent for his son to join the same. Furthermore.
Testimony of Dr. Lazaro on cross examination:
Q How did you conduct this mental and physical examination?
A I have interviewed several persons and the patient herself She even felt guilty
about the death of her son because she cooked adobo for him so he could join
the excursion where her son died of drowning.
Q Why were you able to say she was feeling guilty because she was the one
who personally cooked the adobo for her son?
A It was during the interview that I had gathered it from the patient herself. She
was very sorry had she not allowed her son to join the excursion her son would
have not drowned. I don't know if she actually permitted her son although
she said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19,
hearing of April 30, 1984, Dr. Lazaro witness).
Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering
petitioner school liable for the death of respondent's son.
Article 2180, par. 4 states that:
The obligation imposed by article 2176 is demandable not only for one's own acts or omissions,
but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry.
Under this paragraph, it is clear that before an employer may be held liable for the negligence of his
employee, the act or omission which caused damage or prejudice must have occurred while an employee was
in the performance of his assigned tasks.
In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The
incident happened not within the school premises, not on a school day and most importantly while the
teachers and students were holding a purely private affair, a picnic. It is clear from the beginning that the
incident happened while some members of the I-C class of St. Francis High School were having a picnic at
Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin because this
picnic is not a school sanctioned activity neither is it considered as an extra-curricular activity.
As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the
picnic by the students and their teachers does not in any way or in any manner show acquiescence or consent
to the holding of the same. The application therefore of Article 2180 has no basis in law and neither is it
supported by any jurisprudence. If we were to affirm the findings of respondent Court on this score, employers
wig forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or
omissions of the employees even if such act or omission he committed while they are not in the performance
of their duties.
Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the
respondents-spouses.
Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and
exercised diligence of a good father of a family to prevent any untoward incident or damages to all the
students who joined the picnic.
In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and
scout masters who have knowledge in First Aid application and swimming. Moreover, even respondents'
witness, Segundo Vinas, testified that "the defendants (petitioners herein) had life savers especially brought
by the defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez
and Vinas did all what is humanly possible to save the child.
Testimony of Luisito Vinas on cross examination,
Q And when you saw the boy, Ferdinand Castillo, you approached the boy and
claim also having applied first aid on him?
A Yes, sir.
Q And while you were applying the so called first aid, the children were covering
you up or were surrounding you?
A Yes, sir.
Q You were rattled at that time, is it not?
A No, sir.
Q You mean you were in calm and peaceful condition?
A Yes, sir.
Q Despite the fact that the boy was no longer responding to your application of
first aid?
A Yes, sir.
Q You have never been disturbed, "nababahala" in the process of your
application of the first aid on the body of Ferdinand Castillo?
A No, sir, because we were attending to the application of first aid that we were
doing, sir.
Q After you have applied back to back pressure and which you claimed the boy
did not respond, were you not disturb anyway?
A I was disturbed during that time, sir.
Q For how many minutes have you applied the back to back pressure?
A From 9 to 11 times, sir.
Q You mean 9 to 11 times of having applied the pressure of your body on the
body of Ferdinand Castillo?
A Yes, sir.
Q Will you please describe how you applied a single act of back to back
pressure?
A This has been done by placing the boy lay first downwards, then the face was
a little bit facing right and doing it by massaging the back of the child, sir." (TSN,
pp. 32-35, hearing of July 30, 1984)
Testimony of Tirso de Chavez on direct examination
ATTY. FLORES:
Q Who actually applied the first aid or artificial respiration to the child?
A Myself, sir.
Q How did you apply the first aid to the guy?
A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back
to back pressure and took notice of the condition of the child. We placed the feet
in a higher position, that of the head of the child, sir.
Q After you have placed the boy in that particular position, where the feet were
on a higher level than that of the head, what did you do next?
A The first thing that we did, particularly myself, was that after putting the child in
that position, I applied the back to back pressure and started to massage from
the waistline up, but I noticed that the boy was not responding, sir.
Q For how long did you apply this back to back pressure on the boy?
A About 10 seconds, sir.
Q What about Mr. Vinas?
A Almost the same a little longer, for 15 seconds, sir.
Q After you noticed that the boy was not responding, what did you do?
A When we noticed that the boy was not responding, we changed the position of
the boy by placing the child facing upwards laying on the sand then we applied
the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)
With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondents-spouses.
The case at bar does not fall under any of the grounds to grant moral damages.
Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or omission.
Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no
moral damages can be assessed against them.
While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not
mean that the petitioners were already relieved of their duty to observe the required diligence of a good father
of a family in ensuring the safety of the children. But in the case at bar, petitioners were able to prove that they
had exercised the required diligence. Hence, the claim for moral or exemplary damages becomes baseless.
PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein
guilty of negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is
hereby SET ASIDE insofar as the petitioners herein are concerned, but the portion of the said decision
dismissing their counterclaim, there being no merit, is hereby AFFIRMED.
SO ORDERED.
Sarmiento and Regalado, JJ., concur.
Separate Opinion
PADILLA, J., dissenting:
I regret that I can not concur with the majority. I believe that the reversal of respondent appellate court's
decision gives rise to a situation which was neither contemplated nor intended by the applicable laws. I refer
more particularly to the fact that the ponencia has left private respondents-spouses with no one to hold liable
for the untimely demise of their son. On the other hand, they have, to my mind, been wronged. and they
should at least be recompensed for their sufferings. For this and other reasons stated hereunder. I dissent.
The issues, as adopted by the ponencia from the record, are as follows:
A) Whether or not there was negligence attributable to the defendants which will warrant the
award of damages to the plaintiffs;
B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the
case at bar;
C) Whether or not the award of exemplary and moral damages is proper under the
circumstances surrounding the case at bar.
1

In my opinion, the record clearly shows negligence on the part of the petitioners-teachers, with the exception
of Aragones and Jaro. As to these two, respondent court absolved them from liability for their having
satisfactorily demonstrated lack of participation in the negligence of their colleagues. I am in agreement with
said conclusion. But I also agree with the respondent court in its finding that Tirso de Chavez, Luisito Vias,
Connie Arguio and Patria Cadiz failed to exercise DILIGENT SUPERVISION over the children during the ill-
fated excursion.
I may concede, albeit with reservation, that the afore-mentioned petitioners may not have been negligent in
finding ways and means to revive the young Castillo AFTER the drowning incident. Their application of first-
aid measures may have failed to revive him but the petitioners had fully exhausted their efforts to save the
deceased. This concession, however, is given with hesitation, for there is indication in the record that
petitioner petitioners may have tarried too long in securing immediate medical attention for the deceased. I
refer to the trial court's finding that "it still took the jeep which brought Ferdinand Castillo to the poblacion six
(6) minutes before it finally moved to await the other teachers."
2

All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of diligence on
the part of the petitioners-teachers BEFORE the unfortunate incident took place. Despite awareness that the
waters in the area were deep, petitioners- teachers did not take concrete steps to make sure their wards did
not stray too far and too deeply. Even if they were not actually informed of the possible dangers which the
area posed, petitioners-teachers should have first "tested the waters", so to speak, to ensure which parts
thereof were safe for swimming purposes. However, this was not the case for as testified to by petitioner de
Chavez, "they admitted that they did not even go to the water to check its depth although they were aware
that some parts of it were deep."
3
At best, it appears that only oral safety instructions were imparted to the
young excursionists.
But, what I find most disturbing is the fact that at the time the trouble arose, Vias and de Chavez, the male
teachers who were supposed to ensure the children's safety, being physical education instructors, were
nowhere within the immediate vicinity but were, in fact, as admitted by the latter, "at his house getting some
foods (sic) and thinks." The Court a quo even went as far as to say that "they were somewhere and as
testified to by plaintiffs' witness they were having a drinking spree!"
4

It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer to as
DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps taken to revive the deceased may be
considered adequate, despite my reservations, but the over-all lack of diligence on the part of petitioners-
teachers suffices to put them within the standards set by this Court in determining the existence of negligence.
As held in Hedy Gan y Yu vs. Court of Appeals, et al., the test in determining whether or not a person is
negligent in doing an act whereby injury or damage results to the person or property of another is this: Would
a prudent man in the position of the person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on
the doer TO TAKE PRECAUTION against its mischievous results and the failure to do so constitutes
negligence.
5

The next issue to be addressed pertains to the liability of the petitioner St. Francis High School as represented
by petitioners-spouses Fernando Nantes and Rosario Lacandula. The majority would like to emphasize the
fact that the unfortunate incident having occurred during a purely private affair, the teachers involved therein
were not in the actual performance of their assigned tasks. Consequently, any act or omission caused by
them cannot bind their employer, petitioner St. Francis High School.
I take exception to this proposition. Although the excursion may not have been attended by the appropriate
school authorities, the presence or stamp of authority of the school nevertheless pervaded by reason of the
participationnot of one but of several teachers, the petitioners. As found by the court a quo, the excursion was
an activity "organized by the teachers themselves, for the students and to which the student, NATURALLY,
acceded."
6

Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew of the excursion and
had, in fact, been invited to attend. As the majority see it, such knowledge does not in any manner show
acquiescence or consent to the holding of the excursion, a view which I do not accept. It seems to me that
having known of the forthcoming activity, petitioner Illumin, as school principal, should have taken appropriate
measures to ensure the safety of his students. Having preferred to remain silent, and even indifferent, he now
seeks excuse from such omission by invoking his alleged lack of consent to the excursion. But it is precisely
his silence and negligence in performing his role as principal head of the school that must be construed as an
implied consent to such activity.
As administrative head (principal) of St. Francis High School, petitioner Illumin acted as the agent of his
principal (the school) or its representatives, the petitioners-spouses Nantes and Lacandula. Consequently,
and as found by the respondent court. Article 2176 in conjunction with Article 2180, paragraphs (1) and (5) are
applicable to the situation. In the application of these provisions, the negligence of the employee in causing
injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the
establishment. While this presumption is not conclusive, it may be overcome only by clear and convincing
evidence that the owner and/or manager exercised the care and diligence of a good father of a family in the
selection and/or supervision of the employees causing the injury or damage. I agree with the respondent court
that no proof was presented to absolve the owner and/or manager, herein petitioners-spouses Nantes and
Lacandula, and Illumin. Thus, as correctly held by the respondent court, they too must be accountable for the
death of Ferdinand Castillo.
The majority view appears to be apprehensive that employers will be continuously held accountable for
misdeeds of their employees committed even when the same are done not in the actual exercise of their
duties. I fail to appreciate such apprehensions, which need not arise on the part of employers, so long as the
latter have no knowledge of, or give consent to, such act or omission on the part of their employee.
Educational institutions have responsibilities which cannot be equated with those of the ordinary employer or
business establishment. Such institutions, particularly the primary and secondary schools, hold the
tremendous responsibility of exercising supervision over young children. Too often, such schools avoid
liabilities, as in the instant cage, by invoking the absence of approval on their part for activities that may be
held outside school premises or held on a day not a school day. It is about time that such schools realize that
theirs is not a mere moneymaking entity or one impersonally established for the sole task of teaching the
rudimentary skills of "reading, writing and 'rithmetic." They must consider that their students are children of
tender years who are in need of adequate care, continuing attention and guidance.
Anent the issue of damages, from the foregoing discussion the award thereof is clearly proper. I only wish to
point out the basis for moral damages which is found in Article 2219 of the Civil Code, to wit:
Moral damages may be recovered in the following and analogous cases:
1. . . . .
2. Quasi-delicts causing physical injuries;
xxx xxx xxx
It should be noted that the term "physical injuries" must not be construed in its penal sense alone but rather in
its generic sense, in the spirit of this Court's rulings in Carandang vs. Santiago (51 O.G. 2878) and Madeja
vs. Caro, et al., (G.R. No. 51183, 21 December 1983, 126 SCRA 293). Thus, the death of private
respondents' son as a result of petitioners' negligence gives rise to an action for quasi-delict which, as
provided, entitles the claimant to an award of moral damages.
In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and thus hold the
petitioners jointly and severally liable for the death of Ferdinand Castillo.
Melencio-Herrera, J., concur.
G.R. No. L-68138 May 13, 1991
AGUSTIN Y. GO and THE CONSOLIDATED BANK AND TRUST CORPORATION (Solidbank), petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT and FLOVERTO JAZMIN, respondents.
C.M. De los Reyes & Associates for petitioners.
Millora & Maningding Law Offices for private respondent.
FERNAN, C. J.:p
The instant petition for review on certiorari questions the propriety of the respondent appellate court's award of
nominal damages and attorney's fees to private respondent whose name was used by a syndicate in
encashing two U.S. treasury checks at petitioner bank.
Floverto Jazmin is an American citizen and retired employee of the United States Federal Government. He
had been a visitor in the Philippines since 1972 residing at 34 Maravilla Street, Mangatarem, Pangasinan.
Aspensionado of the U.S. government, he received annuity checks in the amounts of $ 67.00 for disability and
$ 620.00 for retirement through the Mangatarem post office. He used to encash the checks at the Prudential
Bank branch at Clark Air Base, Pampanga.
In January, 1975, Jazmin failed to receive one of the checks on time thus prompting him to inquire from the
post offices at Mangatarem and Dagupan City. As the result of his inquiries proved unsatisfactory, on March 4,
1975, Jazmin wrote the U.S. Civil Service Commission, Bureau of Retirement at Washington, D.C.
complaining about the delay in receiving his check. Thereafter, he received a substitute check which he
encashed at the Prudential Bank at Clark Air Base.
Meanwhile, on April 22, 1975, Agustin Go, in his capacity as branch manager of the then Solidbank (which
later became the Consolidated Bank and Trust Corporation) in Baguio City, allowed a person named "Floverto
Jazmin" to open Savings Account No. BG 5206 by depositing two (2) U. S. treasury checks Nos. 5-449-076
and 5-448-890 in the respective amounts of $1810.00 and $913.40
1
equivalent to the total amount of P
20,565.69, both payable to the order of Floverto Jasmin of Maranilla St., Mangatarem, Pangasinan and drawn
on the First National City Bank, Manila.
The savings account was opened in the ordinary course of business. Thus, the bank, through its manager Go,
required the depositor to fill up the information sheet for new accounts to reflect his personal circumstances.
The depositor indicated therein that he was Floverto Jazmin with mailing address at Mangatarem, Pangasinan
and home address at Maravilla St., Mangatarem, Pangasinan; that he was a Filipino citizen and a security
officer of the US Army with the rank of a sergeant bearing AFUS Car No. H-2711659; that he was married to
Milagros Bautista; and that his initial deposit was P3,565.35. He wrote CSA No. 138134 under remarks or
instructions and left blank the spaces under telephone number, residence certificate/alien certificate of
registration/passport, bank and trade performance and as to who introduced him to the bank.
2
The depositor's
signature specimens were also taken.
Thereafter, the deposited checks were sent to the drawee bank for clearance. Inasmuch as Solidbank did not
receive any word from the drawee bank, after three (3) weeks, it allowed the depositor to withdraw the amount
indicated in the checks.
On June 29, 1976 or more than a year later, the two dollar cheeks were returned to Solidbank with the
notation that the amounts were altered.
3
Consequently, Go reported the matter to the Philippine Constabulary
in Baguio City.
On August 3, 1976, Jazmin received radio messages requiring him to appear before the Philippine
Constabulary headquarters in Benguet on September 7, 1976 for investigation regarding the complaint filed by
Go against him for estafa by passing altered dollar checks. Initially, Jazmin was investigated by constabulary
officers in Lingayen, Pangasinan and later, at Camp Holmes, La Trinidad, Benguet. He was shown xerox
copies of U.S. Government checks Nos. 5-449-076 and 5-448-890 payable to the order of Floverto Jasmin in
the respective amounts of $1,810.00 and $913.40. The latter amount was actually for only $13.40; while the
records do not show the unaltered amount of the other treasury check.
Jazmin denied that he was the person whose name appeared on the checks; that he received the same and
that the signature on the indorsement was his. He likewise denied that he opened an account with Solidbank
or that he deposited and encashed therein the said checks. Eventually, the investigators found that the person
named "Floverto Jazmin" who made the deposit and withdrawal with Solidbank was an impostor.
On September 24, 1976, Jazmin filed with the then Court of First Instance of Pangasinan, Branch II at
Lingayen a complaint against Agustin Y. Go and the Consolidated Bank and Trust Corporation for moral and
exemplary damages in the total amount of P90,000 plus attorney's fees of P5,000. He alleged therein that Go
allowed the deposit of the dollar checks and the withdrawal of their peso equivalent "without ascertaining the
identity of the depositor considering the highly suspicious circumstances under which said deposit was made;
that instead of taking steps to establish the correct identity of the depositor, Go "immediately and recklessly
filed (the) complaint for estafa through alteration of dollar check" against him; that Go's complaint was "an act
of vicious and wanton recklessness and clearly intended for no other purpose than to harass and coerce the
plaintiff into paying the peso equivalent of said dollar checks to the CBTC branch office in Baguio City" so that
Go would not be "disciplined by his employer;" that by reason of said complaint, he was "compelled to present
and submit himself" to investigations by the constabulary authorities; and that he suffered humiliation and
embarrassment as a result of the filing of the complaint against him as well as "great inconvenience" on
account of his age (he was a septuagenarian) and the distance between his residence and the constabulary
headquarters. He averred that his peace of mind and mental and emotional tranquility as a respected citizen
of the community would not have suffered had Go exercised "a little prudence" in ascertaining the identity of
the depositor and, for the "grossly negligent and reckless act" of its employee, the defendant CBTC should
also be held responsible.
4

In their answer, the defendants contended that the plaintiff had no cause of action against them because they
acted in good faith in seeking the "investigative assistance" of the Philippine Constabulary on the swindling
operations against banks by a syndicate which specialized in the theft, alteration and encashment of dollar
checks. They contended that contrary to plaintiff s allegations, they verified the signature of the depositor and
their tellers conducted an Identity check. As counterclaim, they prayed for the award of P100,000 as
compensatory and moral damages; P20,000 as exemplary damages; P20,000 as attorney's fees and P5,000
as litigation, incidental expenses and costs.
5

In its decision of March 27, 1978
6
the lower court found that Go was negligent in failing to exercise "more
care, caution and vigilance" in accepting the checks for deposit and encashment. It noted that the checks
were payable to the order of Floverto Jasmin, Maranilla St., Mangatarem, Pangasinan and not to
Floverto Jazmin, Maravilla St., Mangatarem, Pangasinan and that the differences in name and address should
have put Go on guard. It held that more care should have been exercised by Go in the encashment of the
U.S. treasury checks as there was no time limit for returning them for clearing unlike in ordinary checks
wherein a two to three-week limit is allowed.
Emphasizing that the main thrust of the complaint was "the failure of the defendants to take steps to ascertain
the identity of the depositor," the court noted that the depositor was allegedly a security officer while the
plaintiff was a retiree-pensioner. It considered as "reckless" the defendants' filing of the complaint with the
Philippine Constabulary noting that since the article on a fake dollar check ring appeared on July 18, 1976 in
the Baguio Midland Courier, it was only on August 24, 1976 or more than a month after the bank had learned
of the altered checks that it filed the complaint and therefore, it had sufficient time to ascertain the identity of
the depositor.
The court also noted that instead of complying with the Central Bank Circular Letter of January 17, 1973
requesting all banking institutions to report to the Central Bank all crimes involving their property within 48
hours from knowledge of the crime, the bank reported the matter to the Philippine Constabulary.
Finding that the plaintiff had sufficiently shown that prejudice had been caused to him in the form of mental
anguish, moral shock and social humiliation on account of the defendants' gross negligence, the court,
invoking Articles 2176, 2217 and 2219 (10) in conjunction with Article 21 of the Civil Code, ruled in favor of the
plaintiff. The dispositive portion of the decision states:
WHEREFORE, this Court finds for plaintiff and that he is entitled to the reliefs prayed for in the
following manner: Defendant Agustin Y. Co and the CONSOLIDATED BANK AND TRUST
CORPORATION are hereby ordered to pay, jointly and severally, to the plaintiff the amount of
SIX THOUSAND PESOS (P6,000.00) as moral damages; ONE THOUSAND PESOS
(P1,000.00) as attorney's fees and costs of litigation and to pay the costs and defendant
AGUSTIN Y. Go in addition thereto in his sole and personal capacity to pay the plaintiff the
amount of THREE THOUSAND PESOS (P3,000.00) as exemplary damages, all with interest at
six (6) percent per annum until fully paid.
SO ORDERED.
The defendants appealed to the Court of Appeals. On January 24, 1984, said court (then named Intermediate
Appellate Court) rendered a decision
7
finding as evident negligence Go's failure to notice the substantial
difference in the identity of the depositor and the payee in the check, concluded that Go's negligence in the
performance of his duties was "the proximate cause why appellant bank was swindled" and that denouncing
the crime to the constabulary authorities "merely aggravated the situation." It ruled that there was a cause of
action against the defendants although Jazmin had nothing to do with the alteration of the checks, because he
suffered damages due to the negligence of Go. Hence, under Article 2180 of the Civil Code, the bank shall be
held liable for its manager's negligence.
The appellate court, however, disallowed the award of moral and exemplary damages and granted nominal
damages instead. It explained thus:
While it is true that denouncing a crime is not negligence under which a claim for moral
damages is available, still appellants are liable under the law for nominal damages. The fact
that appellee did not suffer from any loss is of no moment for nominal damages are adjudicated
in order that a right of the plaintiff, which has been violated or invaded by the defendant, maybe
vindicated or recognized and not for the purpose of indemnifying the plaintiff for any loss
suffered by him (Article 2221, New Civil Code). These are damages recoverable where a legal
right is technically violated and must be vindicated against an invasion that has produced no
actual present loss of any kind, or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be shown (Elgara vs.
Sandijas, 27 Phil. 284). They are not intended for indemnification of loss suffered but for the
vindication or recognition of a right violated or invaded (Ventanilla vs. Centeno, L-14333,
January 28, 1961). And, where the plaintiff as in the case at bar, the herein appellee has
established a cause of action, but was not able to adduce evidence showing actual damages
then nominal damages may be recovered (Sia vs. Espenilla CA-G.R. Nos. 45200-45201-R,
April 21, 1975). Consequently, since appellee has no right to claim for moral damages, then he
may not likewise be entitled to exemplary damages (Estopa vs. Piansay, No. L-14503,
September 30, 1960). Considering that he had to defend himself in the criminal charges filed
against him, and that he was constrained to file the instant case, the attorney's fees to be
amended (sic) to plaintiff should be increased to P3,000.00.
Accordingly, the appellate court ordered Go and Consolidated Bank and Trust Corporation to pay jointly and
severally Floverto Jazmin only NOMINAL DAMAGES in the sum of Three Thousand Pesos (P 3,000.00) with
interest at six (6%) percent per annum until fully paid and One Thousand Pesos (P 1,000.00) as attorney's
fees and costs of litigation.
Go and the bank filed a motion for the reconsideration of said decision contending that in view of the finding of
the appellate court that "denouncing a crime is not negligence under which a claim for moral damages is
available," the award of nominal damages is unjustified as they did not violate or invade Jazmin's rights.
Corollarily, there being no negligence on the part of Go, his employer may not be held liable for nominal
damages.
The motion for reconsideration having been denied, Go and the bank interposed the instant petition for review
oncertiorari arguing primarily that the employer bank may not be held "co-equally liable" to pay nominal
damages in the absence of proof that it was negligent in the selection of and supervision over its employee.
8

The facts of this case reveal that damages in the form of mental anguish, moral shock and social humiliation
were suffered by private respondent only after the filing of the petitioners' complaint with the Philippine
Constabulary. It was only then that he had to bear the inconvenience of travelling to Benguet and Lingayen for
the investigations as it was only then that he was subjected to embarrassment for being a suspect in the
unauthorized alteration of the treasury checks. Hence, it is understandable why petitioners appear to have
overlooked the facts antecedent to the filing of the complaint to the constabulary authorities and to have put
undue emphasis on the appellate court's statement that "denouncing a crime is not negligence."
Although this Court has consistently held that there should be no penalty on the right to litigate and that error
alone in the filing of a case be it before the courts or the proper police authorities, is not a ground for moral
damages,
9
we hold that under the peculiar circumstances of this case, private respondent is entitled to an
award of damages.
Indeed, it would be unjust to overlook the fact that petitioners' negligence was the root of all the inconvenience
and embarrassment experienced by the private respondent albeit they happened after the filing of the
complaint with the constabulary authorities. Petitioner Go's negligence in fact led to the swindling of his
employer. Had Go exercised the diligence expected of him as a bank officer and employee, he would have
noticed the glaring disparity between the payee's name and address on the treasury checks involved and the
name and address of the depositor appearing in the bank's records. The situation would have been different if
the treasury checks were tampered with only as to their amounts because the alteration would have been
unnoticeable and hard to detect as the herein altered check bearing the amount of $ 913.40 shows. But the
error in the name and address of the payee was very patent and could not have escaped the trained eyes of
bank officers and employees. There is therefore, no other conclusion than that the bank through its employees
(including the tellers who allegedly conducted an identification check on the depositor) was grossly negligent
in handling the business transaction herein involved.
While at that stage of events private respondent was still out of the picture, it definitely was the start of his
consequent involvement as his name was illegally used in the illicit transaction. Again, knowing that its viability
depended on the confidence reposed upon it by the public, the bank through its employees should have
exercised the caution expected of it.
In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of. It is not necessary that such damages have been
foreseen or could have reasonably been foreseen by the defendant.
10
As Go's negligence was the root cause
of the complained inconvenience, humiliation and embarrassment, Go is liable to private respondents for
damages.
Anent petitioner bank's claim that it is not "co-equally liable" with Go for damages, under the fifth paragraph of
Article 2180 of the Civil Code, "(E)mployers shall be liable for the damages caused by their employees . . .
acting within the scope of their assigned tasks." Pursuant to this provision, the bank is responsible for the acts
of its employee unless there is proof that it exercised the diligence of a good father of a family to prevent the
damage.
11
Hence, the burden of proof lies upon the bank and it cannot now disclaim liability in view of its own
failure to prove not only that it exercised due diligence to prevent damage but that it was not negligent in the
selection and supervision of its employees.
WHEREFORE, the decision of the respondent appellate court is hereby affirmed. Costs against the
petitioners.
G.R. No. 120554 September 21, 1999
SO PING BUN, petitioner, vs.
COURT OF APPEALS, TEK HUA ENTERPRISES CORP. and MANUEL C. TIONG, respondents.
QUISUMBING, J.:
This petition for certiorari challenges the Decision
1
of the Court of Appeals dated October 10, 1994, and the
Resolution
2
dated June 5, 1995, in CA-G.R. CV No. 38784. The appellate court affirmed the decision of the
Regional Trial Court of Manila, Branch 35, except for the award of attorney's fees, as follows:
WHEREFORE, foregoing considered, the appeal of respondent-appellant So Ping Bun for lack
of merit is DISMISSED. The appealed decision dated April 20, 1992 of the court a quo is
modified by reducing the attorney's fees awarded to plaintiff Tek Hua Enterprising Corporation
from P500,000.00 to P200,000.00.
3

The facts are as follows:
In 1963, Tek Hua Trading Co, through its managing partner, So Pek Giok, entered into lease agreements with
lessor Dee C. Chuan & Sons Inc. (DCCSI). Subjects of four (4) lease contracts were premises located at Nos.
930, 930-Int., 924-B and 924-C, Soler Street, Binondo, Manila. Tek Hua used the areas to store its textiles.
The contracts each had a one-year term. They provided that should the lessee continue to occupy the
premises after the term, the lease shall be on a month-to-month basis.
When the contracts expired, the parties did not renew the contracts, but Tek Hua continued to occupy the
premises. In 1976, Tek Hua Trading Co. was dissolved. Later, the original members of Tek Hua Trading Co.
including Manuel C. Tiong, formed Tek Hua Enterprising Corp., herein respondent corporation.
So Pek Giok, managing partner of Tek Hua Trading, died in 1986. So Pek Giok's grandson, petitioner So Ping
Bun, occupied the warehouse for his own textile business, Trendsetter Marketing.
On August 1, 1989, lessor DCCSI sent letters addressed to Tek Hua Enterprises, informing the latter of the
25% increase in rent effective September 1, 1989. The rent increase was later on reduced to 20% effective
January 1, 1990, upon other lessees' demand. Again on December 1, 1990, the lessor implemented a 30%
rent increase. Enclosed in these letters were new lease contracts for signing. DCCSI warned that failure of the
lessee to accomplish the contracts shall be deemed as lack of interest on the lessee's part, and agreement to
the termination of the lease. Private respondents did not answer any of these letters. Still, the lease contracts
were not rescinded.
On March 1, 1991, private respondent Tiong sent a letter to petitioner which reads as follows:
March 1, 1991
Mr. So Ping Bun
930 Soler Street
Binondo, Manila
Dear Mr. So,
Due to my closed (sic) business associate (sic) for three decades with your late grandfather Mr.
So Pek Giok and late father, Mr. So Chong Bon, I allowed you temporarily to use the
warehouse of Tek Hua Enterprising Corp. for several years to generate your personal business.
Since I decided to go back into textile business, I need a warehouse immediately for my stocks.
Therefore, please be advised to vacate all your stocks in Tek Hua Enterprising Corp.
Warehouse. You are hereby given 14 days to vacate the premises unless you have good
reasons that you have the right to stay. Otherwise, I will be constrained to take measure to
protect my interest.
Please give this urgent matter your preferential attention to avoid inconvenience on your part.
Very truly yours,
(Sgd) Manuel C. Tiong
MANUEL C. TIONG
President
4

Petitioner refused to vacate. On March 4, 1992, petitioner requested formal contracts of lease with DCCSI in
favor Trendsetter Marketing. So Ping Bun claimed that after the death of his grandfather, So Pek Giok, he had
been occupying the premises for his textile business and religiously paid rent. DCCSI acceded to petitioner's
request. The lease contracts in favor of Trendsetter were executed.
In the suit for injunction, private respondents pressed for the nullification of the lease contracts between
DCCSI and petitioner. They also claimed damages.
After trial, the trial court ruled:
WHEREFORE, judgment is rendered:
1. Annulling the four Contracts of Lease (Exhibits A, A-1 to A-3,
inclusive) all dated March 11, 1991, between defendant So Ping
Bun, doing business under the name and style of "Trendsetter
Marketing", and defendant Dee C. Chuan & Sons, Inc. over the
premises located at Nos. 924-B, 924-C, 930 and 930, Int.,
respectively, Soler Street, Binondo Manila;
2. Making permanent the writ of preliminary injunction issued by
this Court on June 21, 1991;
3. Ordering defendant So Ping Bun to pay the aggrieved party,
plaintiff Tek Hua Enterprising Corporation, the sum of
P500,000.00, for attorney's fees;
4. Dismissing the complaint, insofar as plaintiff Manuel C. Tiong is
concerned, and the respective counterclaims of the defendant;
5. Ordering defendant So Ping Bun to pay the costs of this
lawsuit;
This judgment is without prejudice to the rights of plaintiff Tek Hua Enterprising Corporation and
defendant Dee C. Chuan & Sons, Inc. to negotiate for the renewal of their lease contracts over
the premises located at Nos. 930, 930-Int., 924-B and 924-C Soler Street, Binondo, Manila,
under such terms and conditions as they agree upon, provided they are not contrary to law,
public policy, public order, and morals.
SO ORDERED.
5

Petitioner's motion for reconsideration of the above decision was denied.
On appeal by So Ping Bun, the Court of Appeals upheld the trial court. On motion for reconsideration, the
appellate court modified the decision by reducing the award of attorney's fees from five hundred thousand
(P500,000.00) pesos to two hundred thousand (P200,000.00) pesos.
Petitioner is now before the Court raising the following issues:
I. WHETHER THE APPELLATE COURT ERRED IN AFFIRMING THE
TRIAL COURT'S DECISION FINDING SO PING BUN GUILTY OF
TORTUOUS INTERFERENCE OF CONTRACT?
II. WHETHER THE APPELLATE COURT ERRED IN AWARDING
ATTORNEY'S FEES OF P200,000.00 IN FAVOR OF PRIVATE
RESPONDENTS.
The foregoing issues involve, essentially, the correct interpretation of the applicable law on tortuous conduct,
particularly unlawful interference with contract. We have to begin, obviously, with certain fundamental
principles on torts and damages.
Damage is the loss, hurt, or harm which results from injury, and damages are the recompense or
compensation awarded for the damage suffered.
6
One becomes liable in an action for damages for a
nontrespassory invasion of another's interest in the private use and enjoyment of asset if (a) the other has
property rights and privileges with respect to the use or enjoyment interfered with, (b) the invasion is
substantial, (c) the defendant's conduct is a legal cause of the invasion, and (d) the invasion is either
intentional and unreasonable or unintentional and actionable under general negligence rules.
7

The elements of tort interference are: (1) existence of a valid contract; (2) knowledge on the part of the third
person of the existence of contract; and (3) interference of the third person is without legal justification or
excuse.
8

A duty which the law of torts is concerned with is respect for the property of others, and a cause of action ex
delicto may be predicated upon an unlawful interference by one person of the enjoyment by the other of his
private
property.
9
This may pertain to a situation where a third person induces a party to renege on or violate his
undertaking under a contract. In the case before us, petitioner's Trendsetter Marketing asked DCCSI to
execute lease contracts in its favor, and as a result petitioner deprived respondent corporation of the latter's
property right. Clearly, and as correctly viewed by the appellate court, the three elements of tort interference
above-mentioned are present in the instant case.
Authorities debate on whether interference may be justified where the defendant acts for the sole purpose of
furthering his own financial or economic interest.
10
One view is that, as a general rule, justification for
interfering with the business relations of another exists where the actor's motive is to benefit himself. Such
justification does not exist where his sole motive is to cause harm to the other. Added to this, some authorities
believe that it is not necessary that the interferer's interest outweigh that of the party whose rights are invaded,
and that an individual acts under an economic interest that is substantial, not merely de minimis, such that
wrongful and malicious motives are negatived, for he acts in self-protection.
11
Moreover justification for
protecting one's financial position should not be made to depend on a comparison of his economic interest in
the subject matter with that of others.
12
It is sufficient if the impetus of his conduct lies in a proper business
interest rather than in wrongful motives.
13

As early as Gilchrist vs. Cuddy,
14
we held that where there was no malice in the interference of a contract,
and the impulse behind one's conduct lies in a proper business interest rather than in wrongful motives, a
party cannot be a malicious interferer. Where the alleged interferer is financially interested, and such interest
motivates his conduct, it cannot be said that he is an officious or malicious intermeddler.
15

In the instant case, it is clear that petitioner So Ping Bun prevailed upon DCCSI to lease the warehouse to his
enterprise at the expense of respondent corporation. Though petitioner took interest in the property of
respondent corporation and benefited from it, nothing on record imputes deliberate wrongful motives or malice
on him.
Sec. 1314 of the Civil Code categorically provides also that, "Any third person who induces another to violate
his contract shall be liable for damages to the other contracting party." Petitioner argues that damage is an
essential element of tort interference, and since the trial court and the appellate court ruled that private
respondents were not entitled to actual, moral or exemplary damages, it follows that he ought to be absolved
of any liability, including attorney's fees.
It is true that the lower courts did not award damages, but this was only because the extent of damages was
not quantifiable. We had a similar situation in Gilchrist, where it was difficult or impossible to determine the
extent of damage and there was nothing on record to serve as basis thereof. In that case we refrained from
awarding damages. We believe the same conclusion applies in this case.
While we do not encourage tort interferers seeking their economic interest to intrude into existing contracts at
the expense of others, however, we find that the conduct herein complained of did not transcend the limits
forbidding an obligatory award for damages in the absence of any malice. The business desire is there to
make some gain to the detriment of the contracting parties. Lack of malice, however, precludes damages. But
it does not relieve petitioner of the legal liability for entering into contracts and causing breach of existing ones.
The respondent appellate court correctly confirmed the permanent injunction and nullification of the lease
contracts between DCCSI and Trendsetter Marketing, without awarding damages. The injunction saved the
respondents from further damage or injury caused by petitioner's interference.
Lastly, the recovery of attorney's fees in the concept of actual or compensatory damages, is allowed under the
circumstances provided for in Article 2208 of the Civil Code.
16
One such occasion is when the defendant's act
or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his
interest.
17
But we have consistently held that the award of considerable damages should have clear factual
and legal bases.
18
In connection with attorney's fees, the award should be commensurate to the benefits that
would have been derived from a favorable judgment. Settled is the rule that fairness of the award of damages
by the trial court calls for appellate review such that the award if far too excessive can be reduced.
19
This
ruling applies with equal force on the award of attorney's fees. In a long line of cases we said, "It is not sound
policy to place in penalty on the right to litigate. To compel the defeated party to pay the fees of counsel for his
successful opponent would throw wide open the door of temptation to the opposing party and his counsel to
swell the fees to undue proportions."
20

Considering that the respondent corporation's lease contract, at the time when the cause of action accrued,
ran only on a month-to-month basis whence before it was on a yearly basis, we find even the reduced amount
of attorney's fees ordered by the Court of Appeals still exorbitant in the light of prevailing
jurisprudence.
21
Consequently, the amount of two hundred thousand (P200,000.00) awarded by respondent
appellate court should be reduced to one hundred thousand (P100,000.00) pesos as the reasonable award or
attorney's fees in favor of private respondent corporation.
WHEREFORE, the petition is hereby DENIED. The assailed Decision and Resolution of the Court of Appeals
in CA-G.R. CV No. 38784 are hereby AFFIRMED, with MODIFICATION that the award of attorney's fees is
reduced from two hundred thousand (P200,000.00) to one hundred thousand (P100,000.00) pesos. No
pronouncement as to costs.1wp
G.R. No. 159213 July 3, 2013
VECTOR SHIPPING CORPORATION and FRANCISCO SORIANO, Petitioners, vs.
AMERICAN HOME ASSURANCE COMPANY and SULPICIO LINES, INC., Respondents.
D E C I S I O N
BERSAMIN, J.:
Subrogation under Article 2207 of the Civil Code gives rise to a cause of action created by law. For purposes
of the law on the prescription of actions, the period of limitation is ten years.
The Case
Vector Shipping Corporation (Vector) and Francisco Soriano appeal the decision promulgated on July 22,
2003,
1
whereby the Court of Appeals (CA) held them jointly and severally liable to pay P7 ,455,421.08 to
American Home Assurance Company (respondent) as and by way of actual damages on the basis of
respondent being the subrogee of its insured Caltex Philippines, Inc. (Caltex).
Antecedents
Vector was the operator of the motor tanker M/T Vector, while Soriano was the registered owner of the M/T
Vector. Respondent is a domestic insurance corporation.
2

On September 30, 1987, Caltex entered into a contract of Affreightment
3
with Vector for the transport of
Caltexs petroleum cargo through the M/T Vector. Caltex insured the petroleum cargo with respondent
for P7,455,421.08 under Marine Open Policy No. 34-5093-6.
4
In the evening of December 20, 1987, the M/T
Vector and the M/V Doa Paz, the latter a vessel owned and operated by Sulpicio Lines, Inc., collided in the
open sea near Dumali Point in Tablas Strait, located between the Provinces of Marinduque and Oriental
Mindoro. The collision led to the sinking of both vessels. The entire petroleum cargo of Caltex on board the
M/T Vector perished.
5
On July 12, 1988, respondent indemnified Caltex for the loss of the petroleum cargo in
the full amount of P7,455,421.08.
6

On March 5, 1992, respondent filed a complaint against Vector, Soriano, and Sulpicio Lines, Inc. to recover
the full amount of P7,455,421.08 it paid to Caltex (Civil Case No. 92-620).
7
The case was raffled to Branch
145 of the Regional Trial Court (RTC) in Makati City.
On December 10, 1997, the RTC issued a resolution dismissing Civil Case No. 92-620 on the following
grounds:
This action is upon a quasi-delict and as such must be commenced within four 4 years from the day they may
be brought. [Art. 1145 in relation to Art. 1150, Civil Code] "From the day [the action] may be brought" means
from the day the quasi-delict occurred. [Capuno v. Pepsi Cola, 13 SCRA 663]
The tort complained of in this case occurred on 20 December 1987. The action arising therefrom would under
the law prescribe, unless interrupted, on 20 December 1991.
When the case was filed against defendants Vector Shipping and Francisco Soriano on 5 March 1992, the
action not having been interrupted, had already prescribed.
Under the same situation, the cross-claim of Sulpicio Lines against Vector Shipping and Francisco Soriano
filed on 25 June 1992 had likewise prescribed.
The letter of demand upon defendant Sulpicio Lines allegedly on 6 November 1991 did not interrupt the tolling
of the prescriptive period since there is no evidence that it was actually received by the addressee. Under
such circumstances, the action against Sulpicio Lines had likewise prescribed.
Even assuming that such written extra-judicial demand was received and the prescriptive period interrupted in
accordance with Art. 1155, Civil Code, it was only for the 10-day period within which Sulpicio Lines was
required to settle its obligation. After that period lapsed, the prescriptive period started again. A new 4-year
period to file action was not created by the extra-judicial demand; it merely suspended and extended the
period for 10 days, which in this case meant that the action should be commenced by 30 December 1991,
rather than 20 December 1991.
Thus, when the complaint against Sulpicio Lines was filed on 5 March 1992, the action had prescribed.
PREMISES CONSIDERED, the complaint of American Home Assurance Company and the cross-claim of
Sulpicio Lines against Vector Shipping Corporation and Francisco Soriano are DISMISSED.
Without costs.
SO ORDERED.
8

Respondent appealed to the CA, which promulgated its assailed decision on July 22, 2003 reversing the
RTC.
9
Although thereby absolving Sulpicio Lines, Inc. of any liability to respondent, the CA held Vector and
Soriano jointly and severally liable to respondent for the reimbursement of the amount of P7,455,421.08 paid
to Caltex, explaining:
x x x x
The resolution of this case is primarily anchored on the determination of what kind of relationship existed
between Caltex and M/V Dona Paz and between Caltex and M/T Vector for purposes of applying the laws on
prescription. The Civil Code expressly provides for the number of years before the extinctive prescription sets
in depending on the relationship that governs the parties.
x x x x
After a careful perusal of the factual milieu and the evidence adduced by the parties, We are constrained to
rule that the relationship that existed between Caltex and M/V Dona Paz is that of a quasi-delict while that
between Caltex and M/T Vector is culpa contractual based on a Contract of Affreightment or a charter party.
x x x x
On the other hand, the claim of appellant against M/T Vector is anchored on a breach of contract of
affreightment. The appellant averred that M/T Vector committed such act for having misrepresented to the
appellant that said vessel is seaworthy when in fact it is not. The contract was executed between Caltex and
M/T Vector on September 30, 1987 for the latter to transport thousands of barrels of different petroleum
products. Under Article 1144 of the New Civil Code, actions based on written contract must be brought within
10 years from the time the right of action accrued. A passenger of a ship, or his heirs, can bring an action
based on culpa contractual within a period of 10 years because the ticket issued for the transportation is by
itself a complete written contract (Peralta de Guerrero vs. Madrigal Shipping Co., L 12951, November 17,
1959).
Viewed with reference to the statute of limitations, an action against a carrier, whether of goods or of
passengers, for injury resulting from a breach of contract for safe carriage is one on contract, and not in tort,
and is therefore, in the absence of a specific statute relating to such actions governed by the statute fixing the
period within which actions for breach of contract must be brought (53 C.J.S. 1002 citing Southern Pac. R. Co.
of Mexico vs. Gonzales 61 P. 2d 377, 48 Ariz. 260, 106 A.L.R. 1012).
Considering that We have already concluded that the prescriptive periods for filing action against M/V Doa
Paz based on quasi delict and M/T Vector based on breach of contract have not yet expired, are We in a
position to decide the appeal on its merit.
We say yes.
x x x x
Article 2207 of the Civil Code on subrogation is explicit that if the plaintiffs property has been insured, and he
has received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of
contract complained of, the insurance company should be subrogated to the rights of the insured against the
wrongdoer or the person who has violated the contract. Undoubtedly, the herein appellant has the rights of a
subrogee to recover from M/T Vector what it has paid by way of indemnity to Caltex.
WHEREFORE, foregoing premises considered, the decision dated December 10, 1997 of the RTC of Makati
City, Branch 145 is hereby REVERSED. Accordingly, the defendant-appellees Vector Shipping Corporation
and Francisco Soriano are held jointly and severally liable to the plaintiff-appellant American Home Assurance
Company for the payment of P7,455,421.08 as and by way of actual damages.
SO ORDERED.
10

Respondent sought the partial reconsideration of the decision of the CA, contending that Sulpicio Lines, Inc.
should also be held jointly liable with Vector and Soriano for the actual damages awarded.
11
On their part,
however, Vector and Soriano immediately appealed to the Court on September 12, 2003.
12
Thus, on October
1, 2003, the CA held in abeyance its action on respondents partial motion for reconsideration pursuant to its
internal rules until the Court has resolved this appeal.
13

Issues
The main issue is whether this action of respondent was already barred by prescription for bringing it only on
March 5, 1992. A related issue concerns the proper determination of the nature of the cause of action as
arising either from a quasi-delict or a breach of contract.
The Court will not pass upon whether or not Sulpicio Lines, Inc. should also be held jointly liable with Vector
and Soriano for the actual damages claimed.
Ruling
The petition lacks merit.
Vector and Soriano posit that the RTC correctly dismissed respondents complaint on the ground of
prescription. They insist that this action was premised on a quasi-delict or upon an injury to the rights of the
plaintiff, which, pursuant to Article 1146 of the Civil Code, must be instituted within four years from the time the
cause of action accrued; that because respondents cause of action accrued on December 20, 1987, the date
of the collision, respondent had only four years, or until December 20, 1991, within which to bring its action,
but its complaint was filed only on March 5, 1992, thereby rendering its action already barred for being
commenced beyond the four-year prescriptive period;
14
and that there was no showing that respondent had
made extrajudicial written demands upon them for the reimbursement of the insurance proceeds as to
interrupt the running of the prescriptive period.
15

We concur with the CAs ruling that respondents action did not yet prescribe. The legal provision governing
this case was not Article 1146 of the Civil Code,
16
but Article 1144 of the Civil Code, which states:
Article 1144. The following actions must be brought within ten years from the time the cause of action accrues:
(1)Upon a written contract;
(2)Upon an obligation created by law;
(3)Upon a judgment.
We need to clarify, however, that we cannot adopt the CAs characterization of the cause of action as based
on the contract of affreightment between Caltex and Vector, with the breach of contract being the failure of
Vector to make the M/T Vector seaworthy, as to make this action come under Article 1144 (1), supra. Instead,
we find and hold that that the present action was not upon a written contract, but upon an obligation created
by law. Hence, it came under Article 1144 (2) of the Civil Code. This is because the subrogation of respondent
to the rights of Caltex as the insured was by virtue of the express provision of law embodied in Article 2207 of
the Civil Code, to wit:
Article 2207. If the plaintiffs property has been insured, and he has received indemnity from the insurance
company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance
company shall be subrogated to the rights of the insured against the wrongdoer or the person who has
violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the
aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury.
(Emphasis supplied)
The juridical situation arising under Article 2207 of the Civil Code is well explained in Pan Malayan Insurance
Corporation v. Court of Appeals,
17
as follows:
Article 2207 of the Civil Code is founded on the well-settled principle of subrogation.1wphi1 If the insured
property is destroyed or damaged through the fault or negligence of a party other than the assured, then the
insurer, upon payment to the assured, will be subrogated to the rights of the assured to recover from the
wrongdoer to the extent that the insurer has been obligated to pay. Payment by the insurer to the assured
operates as an equitable assignment to the former of all remedies which the latter may have against the third
party whose negligence or wrongful act caused the loss.1wphi1 The right of subrogation is not dependent
upon, nor does it grow out of, any privity of contract or upon written assignment of claim. It accrues simply
upon payment of the insurance claim by the insurer [Compania Maritima v. Insurance Company of North
America, G.R. No. L-18965, October 30, 1964, 12 SCRA 213; Firemans Fund Insurance Company v. Jamilla
& Company, Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323].
18

Verily, the contract of affreightment that Caltex and Vector entered into did not give rise to the legal obligation
of Vector and Soriano to pay the demand for reimbursement by respondent because it concerned only the
agreement for the transport of Caltexs petroleum cargo. As the Court has aptly put it in Pan Malayan
Insurance Corporation v. Court of Appeals, supra, respondents right of subrogation pursuant to Article 2207,
supra, was "not dependent upon, nor did it grow out of, any privity of contract or upon written assignment of
claim but accrued simply upon payment of the insurance claim by the insurer."
Considering that the cause of action accrued as of the time respondent actually indemnified Caltex in the
amount of P7,455,421.08 on July 12, 1988,
19
the action was not yet barred by the time of the filing of its
complaint on March 5, 1992,
20
which was well within the 10-year period prescribed by Article 1144 of the Civil
Code.
The insistence by Vector and Soriano that the running of the prescriptive period was not interrupted because
of the failure of respondent to serve any extrajudicial demand was rendered inconsequential by our foregoing
finding that respondents cause of action was not based on a quasi-delict that prescribed in four years from
the date of the collision on December 20, 1987, as the RTC misappreciated, but on an obligation created by
law, for which the law fixed a longer prescriptive period of ten years from the accrual of the action.
Still, Vector and Soriano assert that respondent had no right of subrogation to begin with, because the
complaint did not allege that respondent had actually paid Caltex for the loss of the cargo. They further assert
that the subrogation receipt submitted by respondent was inadmissible for not being properly identified by
Ricardo C. Ongpauco, respondents witness, who, although supposed to identify the subrogation receipt
based on his affidavit, was not called to testify in court; and that respondent presented only one witness in the
person of Teresita Espiritu, who identified Marine Open Policy No. 34-5093-6 issued by respondent to
Caltex.
21

We disagree with petitioners assertions. It is undeniable that respondent preponderantly established its right
of subrogation. Its Exhibit C was Marine Open Policy No. 34-5093-6 that it had issued to Caltex to insure the
petroleum cargo against marine peril.
22
Its Exhibit D was the formal written claim of Caltex for the payment of
the insurance coverage of P7,455,421.08 coursed through respondents adjuster.
23
Its Exhibits E to H were
marine documents relating to the perished cargo on board the M/V Vector that were processed for the
purpose of verifying the insurance claim of Caltex.
24
Its Exhibit I was the subrogation receipt dated July 12,
1988 showing that respondent paid Caltex P7,455,421.00 as the full settlement of Caltexs claim under Marine
Open Policy No. 34-5093-6.
25
All these exhibits were unquestionably duly presented, marked, and admitted
during the trial.
26
Specifically, Exhibit C was admitted as an authentic copy of Marine Open Policy No. 34-5093-
6, while Exhibits D, E, F, G, H and I, inclusive, were admitted as parts of the testimony of respondents
witness Efren Villanueva, the manager for the adjustment service of the Manila Adjusters and Surveyors
Company.
27

Consistent with the pertinent law and jurisprudence, therefore, Exhibit I was already enough by itself to prove
the payment of P7,455,421.00 as the full settlement of Caltexs claim.
28
The payment made to Caltex as the
insured being thereby duly documented, respondent became subrogated as a matter of course pursuant to
Article 2207 of the Civil Code. In legal contemplation, subrogation is the "substitution of another person in the
place of the creditor, to whose rights he succeeds in relation to the debt;" and is "independent of any mere
contractual relations between the parties to be affected by it, and is broad enough to cover every instance in
which one party is required to pay a debt for which another is primarily answerable, and which in equity and
conscience ought to be discharged by the latter."
29

Lastly, Vector and Soriano argue that Caltex waived and abandoned its claim by not setting up a cross-claim
against them in Civil Case No. 18735, the suit that Sulpicio Lines, Inc. had brought to claim damages for the
loss of the M/V Doa Paz from them, Oriental Assurance Company (as insurer of the M/T Vector), and Caltex;
that such failure to set up its cross- claim on the part of Caltex, the real party in interest who had suffered the
loss, left respondent without any better right than Caltex, its insured, to recover anything from them, and
forever barred Caltex from asserting any claim against them for the loss of the cargo; and that respondent was
similarly barred from asserting its present claim due to its being merely the successor-in-interest of Caltex.
The argument of Vector and Soriano would have substance and merit had Civil Case No. 18735 and this case
involved the same parties and litigated the same rights and obligations. But the two actions were separate
from and independent of each other. Civil Case No. 18735 was instituted by Sulpicio Lines, Inc. to recover
damages for the loss of its M/V Doa Paz. In contrast, this action was brought by respondent to recover from
Vector and Soriano whatever it had paid to Caltex under its marine insurance policy on the basis of its right of
subrogation. With the clear variance between the two actions, the failure to set up the cross-claim against
them in Civil Case No. 18735 is no reason to bar this action.
WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision promulgated on
July 22, 2003; and ORDERS petitioners to pay the costs of suit.
G.R. No. 82248 January 30, 1992
ERNESTO MARTIN, petitioner, vs. HON. COURT OF APPEALS and MANILA ELECTRIC
COMPANY, respondents.
Roberto M. Cabangis for petitioner. Benjamin R. Reonal for private respondent.
CRUZ, J.:
This case turns on the proper application of the familiar rule that he who alleges must prove his allegation.
Ernesto Martin was the owner of a private car bearing license plate No. NPA-930. At around 2 o'clock in the
morning of May 11, 1982, while being driven by Nestor Martin, it crashed into a Meralco electric post on Valley
Golf Road, in Antipolo, Rizal. The car was wrecked and the pole severely damaged. Meralco subsequently
demanded reparation from Ernesto Martin, but the demand was rejected. It thereupon sued him for damages
in the Regional Trial Court of Pasig, alleging inter alia that he was liable to it in the sum of P17,352.00 plus
attorney's fees and litigation costs as the employer of Nestor Martin. The petitioner's main defense was that
Nestor Martin was not his employee.
After the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that no evidence
had been adduced to show that Nestor Martin was his employee. The motion was denied. The case was
considered submitted for decision with the express waiver by the defendant of his right to present his own
evidence. The defendant thus did not rebut the plaintiff's allegation that he was Nestor Martin's employer.
In the decision dated August 27, 1985, Judge Eutropio Migrio held in favor of the plaintiff, awarding him the
amount claimed, with 12% interest, and P4,000.00 attorney's fees, plus costs.
1
The decision was seasonably
elevated to the Court of Appeals, which affirmed it in toto on February 22, 1988,
2
prompting this petition for
review.
The petition has merit.
It is important to stress that the complaint for damages was filed by the private respondent against only
Ernesto Martin as alleged employer of Nestor Martin, the driver of the car at the time of the accident. Nestor
Martin was not impleaded. The action was based on tort under Article 2180 of the Civil Code, providing in part
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 above rule is applicable only if there is an employer-employee relationship although it is not necessary
that the employer be engaged in any business or industry. It differs in this sense from Article 103 of the
Revised Penal Code, which requires that the employer be engaged in an industry to be subsidiarily liable for
the felony committed by his employee in the course of his employment.
Whether or not engaged in any business or industry, the employer under Article 2180 is liable for the torts
committed by his employees within the scope of their assigned task. But it is necessary first to establish the
employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that the
employee was acting within the scope of his assigned task when the tort complained of was committed. It is
only then that the defendant, as employer, may find it necessary to interpose the defense of due diligence in
the selection and supervision of the employee as allowed in that article.
3

In the case at bar, no evidence whatsoever was adduced by the plaintiff to show that the defendant was the
employer of Nestor Martin at the time of the accident. The trial court merely presumed the existence of the
employer-employee relationship and held that the petitioner had not refuted that presumption. It noted that
although the defendant alleged that he was not Nestor Martin's employer, "he did not present any proof to
substantiate his allegation."
As the trial court put it:
There is no need to stretch one's imagination to realize that a car owner entrusts his vehicle
only to his driver or to anyone whom he allows to drive it. Since neither plaintiff nor defendant
has presented any evidence on the status of Nestor Martin, the Court presumes that he was at
the time of the incident, an employee of the defendant. It is elementary that he who makes an
allegation is required to prove the same. Defendant alleges that Nestor Martin was not his
employee but he did not present any proof to substantiate his allegation. While it is true plaintiff
did not present evidence on its allegation that Nestor Martin was defendant's employee, the
Court believes and so holds, that there was no need for such evidence. As above adverted to,
the Court can proceed on the presumption that one who drives the motor vehicle is an
employee of the owner thereof.
A presumption is defined as an inference as to the existence of a fact not actually known, arising from its
usual connection with another which is known,
4
or a conjecture based on past experience as to what course
human affairs ordinarily take.
5
It is either a presumption juris, or of law, or a presumption hominis, or of fact.
6

There is no law directing the deduction made by the courts below from the particular facts presented to them
by the parties. Such deduction is not among the conclusive presumptions under Section 2 or the disputable
presumptions under Section 3 of Rule 131 of the Rules of Court. In other words, it is not a presumption juris.
Neither is it a presumption hominis, which is a reasonable deduction from the facts proved without an express
direction of law to that effect.
7
The facts proved, or not denied, viz., the ownership of the car and the
circumstances of the accident, are not enough bases for the inference that the petitioner is the employer of
Nestor Martin.
In the modern urban society, most male persons know how to drive and do not have to employ others to drive
for them unless this is needed for business reasons. Many cannot afford this luxury, and even if they could,
may consider it an unnecessary expense and inconvenience. In the present case, the more plausible
assumption is that Nestor Martin is a close relative of Ernesto Martin and on the date in question borrowed the
car for some private purpose. Nestor would probably not have been accommodated if he were a mere
employee for employees do not usually enjoy the use of their employer's car at two o'clock in the morning.
As the employment relationship between Ernesto Martin and Nestor Martin could not be presumed, it was
necessary for the plaintiff to establish it by evidence. Meralco had the burden of proof, or the duty "to present
evidence on the fact in issue necessary to establish his claim" as required by Rule 131, Section 1 of the
Revised Rules of Court. Failure to do this was fatal to its action.
It was enough for the defendant to deny the alleged employment relationship, without more, for he was not
under obligation to prove this negative averment. Ei incumbit probatio qui dicit, non qui negat. 8 This Court
has consistently applied the ancient rule that "if the plaintiff, upon whom rests the burden of proving his cause
of action, fails to show in a satisfactory manner the facts upon which he bases his claim, the defendant is
under no obligation to prove his exception or defense."
9

The case of Amor v. Soberano,
10
a Court of Appeals decision not elevated to this Court, was misapplied by
the respondent court in support of the petitioner's position. The vehicle involved in that case was a six-by-six
truck, which reasonably raised the factual presumption that it was engaged in business and that its driver was
employed by the owner of the vehicle. The case at bar involves a private vehicle as its license plate indicates.
No evidence was ever offered that it was being used for business purposes or that, in any case, its driver at
the time of the accident was an employee of the petitioner.
It is worth mentioning in this connection that in Filamer Christian Institute v. Court of Appeals,
11
the owner of
the jeep involved in the accident was absolved from liability when it was shown that the driver of the vehicle
was not employed as such by the latter but was a "working scholar" as that term is defined by the Omnibus
Rules Implementing the Labor Code.
12
He was assigned to janitorial duties. Evidence was introduced to
establish the employment relationship but it failed nonetheless to hold the owner responsible. Significantly, no
similar evidence was even presented in the case at bar, the private respondent merely relying on its mere
allegation that Nestor Martin was the petitioner's employee. Allegation is not synonymous with proof.
The above observations make it unnecessary to examine the question of the driver's alleged negligence or the
lack of diligence on the part of the petitioner in the selection and supervision of his employee. These questions
have not arisen because the employment relationship contemplated in Article 1860 of the Civil Code has not
been established.
WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED, and Civil Case
No. 48045 in the Regional Trial Court of Pasig, Branch 151, is DISMISSED, with costs against the
respondent. It is so ordered.
G.R. No. 180440 December 5, 2012
DR. GENEVIEVE L. HUANG, Petitioner, vs. PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO.,
LTD. And FIRST LEPANTO TAISHO INSURANCE CORPORATION, Respondents.
D E C I S I O N
PEREZ, J.:
For this Courts resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing
the Decision
1
of the Court of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007, affirming the
Decision
2
of Branch 56 of the Regional Trial Court (RTC) of Makati City in Civil Case No. 96-1367 dated 21
February 2006, dismissing for lack of merit herein petitioner Dr. Genevieve L. Huangs Complaint for
Damages. Assailed as well is the Court of Appeals Resolution
3
dated 5 November 2007 denying for lack of
merit petitioners Motion for Reconsideration.
This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr. Genevieve L.
Huang
4
against herein respondents Philippine Hoteliers, Inc. (PHI)
5
and Dusit Thani Public Co., Ltd.
(DTPCI),
6
as owners of Dusit Thani Hotel Manila (Dusit Hotel);
7
and co-respondent First Lepanto Taisho
Insurance Corporation (First Lepanto),
8
as insurer of the aforesaid hotel. The said Complaint was premised on
the alleged negligence of respondents PHI and DTPCIs staff, in the untimely putting off all the lights within the
hotels swimming pool area, as well as the locking of the main entrance door of the area, prompting petitioner
to grope for a way out. While doing so, a folding wooden counter top fell on her head causing her serious
brain injury. The negligence was allegedly compounded by respondents PHI and DTPCIs failure to render
prompt and adequate medical assistance.
Petitioners version of the antecedents of this case is as follows:
On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her friend, petitioner Dr.
Genevieve L. Huang, for a swim at the hotels swimming pool facility. They started bathing at around 5:00 p.m.
At around 7:00 p.m., the hotels swimming pool attendant informed them that the swimming pool area was
about to be closed. The two subsequently proceeded to the shower room adjacent to the swimming pool to
take a shower and dress up. However, when they came out of the bathroom, the entire swimming pool area
was already pitch black and there was no longer any person around but the two of them. They carefully
walked towards the main door leading to the hotel but, to their surprise, the door was locked.
9

Petitioner and Delia waited for 10 more minutes near the door hoping someone would come to their rescue
but they waited in vain. Delia became anxious about their situation so petitioner began to walk around to look
for a house phone. Delia followed petitioner. After some time, petitioner saw a phone behind the lifeguards
counter. While slowly walking towards the phone, a hard and heavy object, which later turned out to be the
folding wooden counter top, fell on petitioners head that knocked her down almost unconscious.
10

Delia immediately got hold of the house phone and notified the hotel telephone operator of the incident. Not
long after, the hotel staff arrived at the main entrance door of the swimming pool area but it took them at least
20 to 30 minutes to get inside. When the door was finally opened, three hotel chambermaids assisted
petitioner by placing an ice pack and applying some ointment on her head. After petitioner had slightly
recovered, she requested to be assisted to the hotels coffee shop to have some rest. Petitioner demanded
the services of the hotel physician.
11

Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and introduced herself as the
hotel physician. However, instead of immediately providing the needed medical assistance, Dr. Dalumpines
presented a "Waiver" and demanded that it be signed by petitioner, otherwise, the hotel management will not
render her any assistance. Petitioner refused to do so.
12

After eating her dinner and having rested for a while, petitioner left the hotels coffee shop and went home.
Thereupon, petitioner started to feel extraordinary dizziness accompanied by an uncomfortable feeling in her
stomach, which lasted until the following day. Petitioner was constrained to stay at home, thus, missing all her
important appointments with her patients. She also began experiencing "on" and "off" severe headaches that
caused her three (3) sleepless nights.
13

Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a neurologist from Makati Medical
Center, who required her to have an X-ray and a Magnetic Resonance Imaging (MRI) tests.
14
The MRI
Report
15
dated 23 August 1995 revealed the following findings:
CONSULTATION REPORT:
MRI examination of the brain shows scattered areas of intraparenchymal contusions and involving mainly the
left middle and posterior temporal and slightly the right anterior temporal lobe.
Other small areas of contusions with suggestive pertechiae are seen in the left fronto-parietal, left parieto-
occipital and with deep frontal periventricular subcortical and cortical regions. There is no mass effect nor
signs of localized hemorrhagic extravasation.
The ventricles are not enlarged, quite symmetrical without shifts or deformities; the peripheral sulci are within
normal limits.
The C-P angles, petromastoids, sella, extrasellar and retro orbital areas appear normal.
The brainstem is unremarkable.
IMPRESSION: Scattered small intraparenchymal contusions mainly involving the left middle-posterior
temporal lobe and also right medial anterior temporal, both deep frontal subcortical, left parieto-occipital
subcortical and cortical regions. Ischemic etiology not ruled out. No localized intra - or extracerebral
hemorrhage.
16

Petitioner claimed that the aforesaid MRI result clearly showed that her head was bruised. Based also on the
same MRI result, Dr. Noble told her that she has a very serious brain injury. In view thereof, Dr. Noble
prescribed the necessary medicine for her condition.
17

Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from Makati Medical Center, who
required her to undergo an Electroencephalogram examination (EEG) to measure the electrostatic in her
brain.
18
Based on its result,
19
Dr. Ofelia Adapon informed her that she has a serious conditiona permanent
one. Dr. Ofelia Adapon similarly prescribed medicines for her brain injury.
20

Petitioners condition did not get better. Hence, sometime in September 1995, she consulted another neuro-
surgeon by the name of Dr. Renato Sibayan (Dr. Sibayan), who required her to have an X-ray
test.
21
According to petitioner, Dr. Sibayans finding was the same as those of the previous doctors that she
had consultedshe has a serious brain injury.
22

By reason of the unfortunate 11 June 1995 incident inside the hotels swimming pool area, petitioner also
started to feel losing her memory, which greatly affected and disrupted the practice of her chosen
profession.
23
Thus, on 25 October 1995, petitioner, through counsel, sent a demand letter
24
to respondents
PHI and DTPCI seeking payment of an amount not less than P100,000,000.00 representing loss of earnings
on her remaining life span. But, petitioners demand was unheeded.
In November 1995, petitioner went to the United States of America (USA) for further medical treatment. She
consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson
25
from Mount Sinai Hospital who both
found that she has "post traumatic-post concussion/contusion cephalgias-vascular and neuralgia."
26
She was
then prescribed to take some medications for severe pain and to undergo physical therapy. Her condition did
not improve so she returned to the Philippines.
27

Petitioner, once again, consulted Dr. Sibayan, who simply told her to just relax and to continue taking her
medicines. Petitioner also consulted other neurologists, who all advised her to just continue her medications
and to undergo physical therapy for her neck pain.
28

Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr. Lopez), an ophthalmologist from
the Makati Medical Center, because of her poor vision, which she has experienced for several
months.
29
Petitioners Eye Report dated 5 March 1996
30
issued by Dr. Lopez stated: "IMPRESSION: Posterior
vitreous detachment, right eye of floaters." Dr. Lopez told petitioner that her detached eye is permanent and
very serious. Dr. Lopez then prescribed an eye drop to petitioner.
31

For petitioners frustration to dissipate and to regain her former strength and physical well-being, she
consulted another neuro-surgeon from Makati Medical Center by the name of Dr. Leopoldo P. Pardo, Jr. (Dr.
Pardo, Jr.).
32
She disclosed to Dr. Pardo, Jr. that at the age of 18 she suffered a stroke due to mitral valve
disease and that she was given treatments, which also resulted in thrombocytopenia. In Dr. Pardo, Jr.s
medical evaluation of petitioner dated 15 May 1996,
33
he made the following diagnosis and opinion:
DIAGNOSIS AND OPINION:
This patient sustained a severe head injury in (sic) 11 June 1995 and as a result of which she developed the
following injuries:
1. Cerebral Concussion and Contusion
2. Post-traumatic Epilepsy
3. Post-concussional Syndrome
4. Minimal Brain Dysfunction
5. Cervical Sprain, chronic recurrent
It is my opinion that the symptoms she complained of in the foregoing history are all related to and a result of
the injury sustained on 11 June 1995.
It is further my opinion that the above diagnosis and complaints do materially affect her duties and functions
as a practicing physician and dermatologist, and that she will require treatment for an undetermined period of
time.
The percentage of disability is not calculated at this time and will require further evaluation and observation.
34

Dr. Pardo, Jr. then advised petitioner to continue her medications.
35

Petitioner likewise consulted a certain Dr. Tenchavez
36
for her follow-up EEG.
37
He similarly prescribed
medicine for petitioners deep brain injury. He also gave her pain killer for her headache and advised her to
undergo physical therapy. Her symptoms, however, persisted all the more.
38

In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of Dr. Martesio
Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs; difficulty in concentration; and
warm sensation of the legs, which symptoms also occurred after the 11 June 1995 incident. Upon
examination, Dr. Perez observed that petitioner has been experiencing severe pains and she has a slight
difficulty in concentration. He likewise noted that there was a slight spasm of petitioners neck muscle but,
otherwise, there was no objective neurologic finding. The rest of petitioners neurologic examination was
essentially normal.
39

Dr. Perezs neurologic evaluation
40
of petitioner reflected, among others: (1) petitioners past medical history,
which includes, among others, mitral valve stenosis; (2) an interpretation of petitioners EEG results in October
1995 and in January 1999, i.e., the first EEG showed sharp waves seen bilaterally more on the left while the
second one was normal; and (3) interpretation of petitioners second MRI result, i.e., petitioner has a
permanent damage in the brain, which can happen either after a head injury or after a stroke. Dr. Perez
concluded that petitioner has post-traumatic or post concussion syndrome.
41

Respondents, on the other hand, denied all the material allegations of petitioner and, in turn, countered the
latters statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice had been posted on the glass door of the hotel
leading to the swimming pool area to apprise the people, especially the hotel guests, that the swimming pool
area is open only from 7:00 a.m. to 7:00 p.m.
42
Though the hotels swimming pool area is open only between
the aforestated time, the lights thereon are kept on until 10:00 p.m. for, (1) security reasons; (2) housekeeping
personnel to do the cleaning of the swimming pool surroundings; and (3) people doing their exercise routine at
the Slimmers World Gym adjacent to the swimming pool area, which was then open until 10:00 p.m., to have
a good view of the hotels swimming pool. Even granting that the lights in the hotels swimming pool area were
turned off, it would not render the area completely dark as the Slimmers World Gym near it was well-
illuminated.
43

Further, on 11 June 1995, at round 7:00 p.m., the hotels swimming pool attendant advised petitioner and
Delia to take their showers as it was already closing time. Afterwards, at around 7:40 p.m., Pearlie Benedicto-
Lipana (Ms. Pearlie), the hotel staff nurse, who was at the hotel clinic located at the mezzanine floor, received
a call from the hotel telephone operator informing her that there was a guest requiring medical assistance at
the hotels swimming pool area located one floor above the clinic.
44

Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the hotels swimming pool area.
There she saw Delia and petitioner, who told her that she was hit on the head by a folding wooden counter
top. Although petitioner looked normal as there was no indication of any blood or bruise on her head, Ms.
Pearlie still asked her if she needed any medical attention to which petitioner replied that she is a doctor, she
was fine and she did not need any medical attention. Petitioner, instead, requested for a hirudoid cream to
which Ms. Pearlie acceded.
45

At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the hotel clinic to inform Dr.
Dalumpines of the incident at the hotels swimming pool area. But before she could do that, Dr. Dalumpines
had already chanced upon Delia and petitioner at the hotels coffee shop and the latter reported to Dr.
Dalumpines that her head was hit by a folding wooden counter top while she was inside the hotels swimming
pool area. When asked by Dr. Dalumpines how she was, petitioner responded she is a doctor, she was fine
and she was already attended to by the hotel nurse, who went at the hotels swimming pool area right after the
accident. Dr. Dalumpines then called Ms. Pearlie to verify the same, which the latter confirmed.
46

Afterwards, Dr. Dalumpines went back to petitioner and checked the latters condition. Petitioner insisted that
she was fine and that the hirudoid cream was enough. Having been assured that everything was fine, Dr.
Dalumpines requested petitioner to execute a handwritten certification
47
regarding the incident that occurred
that night. Dr. Dalumpines then suggested to petitioner to have an X-ray test. Petitioner replied that it was not
necessary. Petitioner also refused further medical attention.
48

On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do with the 11 June
1995 incident. Instead, petitioner merely engaged in small talk with Dr. Dalumpines while having her daily
massage. The two talked about petitioners personal matters, i.e., past medical history, differences with
siblings and family over inheritance and difficulty in practice. Petitioner even disclosed to Dr. Dalumpines that
she once fell from a horse; that she had a stroke; had hysterectomy and is incapable of having children for her
uterus had already been removed; that she had blood disorder, particularly lack of platelets, that can cause
bleeding; and she had an "on" and "off" headaches. Petitioner oftentimes called Dr. Dalumpines at the hotel
clinic to discuss topics similar to those discussed during their 13 June 1995 conversation.
49

Also, during one of their telephone conversations, petitioner requested for a certification regarding the 11 June
1995 incident inside the hotels swimming pool area. Dr. Dalumpines accordingly issued Certification dated 7
September 1995, which states that:
50

C E R T I F I C A T I O N
This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to an accident at the
poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding countertop fell on her head when
she lifted it to enter the lifeguards counter to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After narrating the poolside incident and
declining Dr. Dalumpines offer of assistance, she reiterated that the Hirudoid cream was enough and that
petitioner being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose it may serve, 7 September 1995
at Makati City.
51
(Emphasis supplied).
Petitioner personally picked up the afore-quoted Certification at the hotel clinic without any objection as to its
contents.
52

From 11 June 1995 until 7 September 1995, the hotel clinic never received any complaint from petitioner
regarding the latters condition. The hotel itself neither received any written complaint from petitioner.
53

After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioners Complaint for lack of
merit.
The trial court found petitioners testimony self-serving, thus, devoid of credibility. Petitioner failed to present
any evidence to substantiate her allegation that the lights in the hotels swimming pool area were shut off at
the time of the incident. She did not even present her friend, Delia, to corroborate her testimony. More so,
petitioners testimony was contradicted by one of the witnesses presented by the respondents who positively
declared that it has been a normal practice of the hotel management not to put off the lights until 10:00 p.m. to
allow the housekeepers to do the cleaning of the swimming pool surroundings, including the toilets and
counters. Also, the lights were kept on for security reasons and for the people in the nearby gym to have a
good view of the swimming pool while doing their exercise routine. Besides, there was a remote possibility
that the hotels swimming pool area was in complete darkness as the aforesaid gym was then open until 10:00
p.m., and the lights radiate to the hotels swimming pool area. As such, petitioner would not have met the
accident had she only acted with care and caution.
54

The trial court further struck down petitioners contention that the hotel management did not extend medical
assistance to her in the aftermath of the accident. Records showed that the hotel management immediately
responded after being notified of the accident. The hotel nurse and the two chambermaids placed an ice pack
on petitioners head. They were willing to extend further emergency assistance but petitioner refused and
merely asked for a hirudoid cream. Petitioner even told them she is a doctor and she was fine. Even the
medical services offered by the hotel physician were turned down by petitioner. Emphatically, petitioner
cannot fault the hotel for the injury she sustained as she herself did not heed the warning that the swimming
pool area is open only from 7:00 a.m. to 7:00 p.m. As such, since petitioners own negligence was the
immediate and proximate cause of her injury, she cannot recover damages.
55

The trial court similarly observed that the records revealed no indication that the head injury complained of by
petitioner was the result of the alleged 11 June 1995 accident. Firstly, petitioner had a past medical history
which might have been the cause of her recurring brain injury. Secondly, the findings of Dr. Perez did not
prove a causal relation between the 11 June 1995 accident and the brain damage suffered by petitioner. Even
Dr. Perez himself testified that the symptoms being experienced by petitioner might have been due to factors
other than the head trauma she allegedly suffered. It bears stressing that petitioner had been suffering from
different kinds of brain problems since she was 18 years old, which may have been the cause of the recurring
symptoms of head injury she is experiencing at present. Absent, therefore, of any proof establishing the
causal relation between the injury she allegedly suffered on 11 June 1995 and the head pains she now
suffers, her claim must fail. Thirdly, Dr. Teresita Sanchezs (Dr. Sanchez) testimony cannot be relied upon
since she testified on the findings and conclusions of persons who were never presented in court. Ergo, her
testimony thereon was hearsay. Fourthly, the medical reports/evaluations/certifications issued by myriads of
doctors whom petitioner sought for examination or treatment were neither identified nor testified to by those
who issued them. Being deemed as hearsay, they cannot be given probative value. Even assuming that
petitioner suffered head injury as a consequence of the 11 June 1995 accident, she cannot blame anyone but
herself for staying at the hotels swimming pool area beyond its closing hours and for lifting the folding wooden
counter top that eventually hit her head.
56

For petitioners failure to prove that her serious and permanent injury was the result of the 11 June 1995
accident, thus, her claim for actual or compensatory damages, loss of income, moral damages, exemplary
damages and attorneys fees, must all fail.
57

With regard to respondent First Lepantos liability, the trial court ruled that under the contract of insurance,
suffice it to state that absent any cause for any liability against respondents PHI and DTPCI, respondent First
Lepanto cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following assignment of errors: (1)
the trial court erred in finding that the testimony of petitioner is self-serving and thus void of credibility; (2) the
trial court erred in applying the doctrine of proximate cause in cases of breach of contract and even assuming
arguendo that the doctrine is applicable, petitioner was able to prove by sufficient evidence the causal
connection between her injuries and respondents PHI and DTPCIs negligent act; and (3) the trial court erred
in holding that petitioner is not entitled to damages.
58

On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings and conclusions of the trial
court.
The Court of Appeals ratiocinated in this wise:
At the outset, it is necessary for our purpose to determine whether to decide this case on the theory that
herein respondents PHI and DTPCI are liable for breach of contract or on the theory of quasi-delict.
x x x x
It cannot be gainsaid that herein petitioners use of the hotels pool was only upon the invitation of Delia, the
hotels registered guest. As such, she cannot claim contractual relationship between her and the hotel. Since
the circumstances of the present case do not evince a contractual relation between petitioner and
respondents, the rules on quasi-delict , thus, govern.
The pertinent provision of Art. 2176 of the Civil Code which states: "Whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict."
A perusal of Article 2176 shows that obligations arising from quasi-delict or tort, also known as extra-
contractual obligations, arise only between parties not otherwise bound by contract, whether express or
implied. Thus, to sustain a claim liability under quasi-delict, the following requisites must concur: (a) damages
suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the
damages incurred by the plaintiff.
Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its employees were
negligent? We do not think so. Several factors militate against petitioners contention.
One. Petitioner recognized the fact that the pool areas closing time is 7:00 p.m.. She, herself, admitted
during her testimony that she was well aware of the sign when she and Delia entered the pool area.
Hence, upon knowing, at the outset, of the pools closing time, she took the risk of overstaying when
she decided to take shower and leave the area beyond the closing hour. In fact, it was only upon the
advise of the pool attendants that she thereafter took her shower.
Two. She admitted, through her certification that she lifted the wooden bar countertop, which then fell
onto her head. The admission in her certificate proves the circumstances surrounding the occurrence
that transpired on the night of 11 June 1995. This is contrary to her assertion in the complaint and
testimony that, while she was passing through the counter door, she was suddenly knocked out by a
hard and heavy object. In view of the fact that she admitted having lifted the counter top, it was her
own doing, therefore, that made the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioners assertion that the pool area was totally dark in that
she herself admitted that she saw a telephone at the counter after searching for one. It must be noted
that petitioner and Delia had walked around the pool area with ease since they were able to proceed to
the glass entrance door from shower room, and back to the counter area where the telephone was
located without encountering any untoward incident. Otherwise, she could have easily stumbled over,
or slid, or bumped into something while searching for the telephone. This negates her assertion that
the pool area was completely dark, thereby, totally impairing her vision.
x x x x
The aforementioned circumstances lead us to no other conclusion than that the proximate and immediate
cause of the injury of petitioner was due to her own negligence.
Moreover, petitioner failed to sufficiently substantiate that the medical symptoms she is currently experiencing
are the direct result of the head injury she sustained on 11 June 1995 as was aptly discussed in the lower
courts findings.
x x x x
It bears stressing that in civil cases, the law requires that the party who alleges a fact and substantially asserts
the affirmative of the issue has the burden of proving it. Hence, for petitioner to be entitled to damages, she
must show that she had suffered an actionable injury. Regrettably, petitioner failed in this regard.
59
(Emphasis
supplied).
Petitioners Motion for Reconsideration was denied for lack of merit in a Resolution dated 5 November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of the trial court and of the Court of Appeals are conclusive in
this case.
(2) Whether or not herein respondents PHI and DTPCI are responsible by implied contract to exercise
due care for the safety and welfare of the petitioner.
(3) Whether or not the cause of action of the petitioner can be based on both breach of contract and
tort.
(4) Whether or not it is respondents PHI and DTPCI and its employees who are liable to the petitioner
for negligence, applying the well-established doctrines of res ipsa loquitur and respondeat superior.
(5) Whether the petitioners debilitating and permanent injuries were a result of the accident she
suffered at the hotel on 11 June 1995.
(6) Whether or not the petitioner is entitled to the payment of damages, attorneys fees, interest, and
the costs of suit.
(7) Whether or not the respondent insurance company is liable, even directly, to the petitioner.
(8) Whether or not petitioners motion for reconsideration of the decision of the Court of Appeals is pro
forma.
60

Petitioner argues that the rule that "findings of fact of the lower courts are conclusive and must be respected
on appeal" finds no application herein because this case falls under the jurisprudentially established
exceptions. Moreover, since the rationale behind the afore-mentioned rule is that "the trial judge is in a
vantage point to appreciate the conduct and behavior of the witnesses and has the unexcelled opportunity to
evaluate their testimony," one logical exception to the rule that can be deduced therefrom is when the judge
who decided the case is not the same judge who heard and tried the case.
Petitioner further faults the Court of Appeals in ruling that no contractual relationship existed between her and
respondents PHI and DTPCI since her use of the hotels swimming pool facility was only upon the invitation of
the hotels registered guest. On the contrary, petitioner maintains that an implied contract existed between
them in view of the fact that the hotel guest status extends to all those who avail of its servicesits patrons
and invitees. It follows then that all those who patronize the hotel and its facilities, including those who are
invited to partake of those facilities, like petitioner, are generally regarded as guests of the hotel. As such,
respondents PHI and DTPCI are responsible by implied contract for the safety and welfare of petitioner while
the latter was inside their premises by exercising due care, which they failed to do.
Petitioner even asserts that the existence of a contract between the parties does not bar any liability for tort
since the act that breaks a contract may also be a tort. Hence, the concept of change of theory of cause of
action pointed to by respondents is irrelevant.
Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat superior are applicable in this
case. She argues that a person who goes in a hotel without a "bukol" or hematoma and comes out of it with a
"bukol" or hematoma is a clear case of res ipsa loquitur. It was an accident caused by the fact that the hotel
staff was not present to lift the heavy counter top for petitioner as is normally expected of them because they
negligently locked the main entrance door of the hotels swimming pool area. Following the doctrine of res
ipsa loquitur, respondents PHI and DTPCIs negligence is presumed and it is incumbent upon them to prove
otherwise but they failed to do so. Further, respondents PHI and DTPCI failed to observe all the diligence of a
good father of a family in the selection and supervision of their employees, hence, following the doctrine of
respondeat superior, they were liable for the negligent acts of their staff in not verifying if there were still
people inside the swimming pool area before turning off the lights and locking the door. Had respondents PHI
and DTPCIs employees done so, petitioner would not have been injured. Since respondents PHI and
DTPCIs negligence need not be proved, the lower courts erred in shifting the burden to petitioner and,
thereafter, holding the hotel and its employees not negligent for petitioners failure to prove their negligence.
Moreover, petitioner alleges that there was no contributory negligence on her part for she did not do anything
that could have contributed to her injury. And, even if there was, the same does not bar recovery.
Petitioner equally declares that the evidence on record, including the objective medical findings, had firmly
established that her permanent debilitating injuries were the direct result of the 11 June 1995 accident inside
the hotels swimming pool area. This fact has not been totally disputed by the respondents. Further, the
medical experts who had been consulted by petitioner were in unison in their diagnoses of her condition.
Petitioner was also able to prove that the falling of the folding wooden counter top on her head while she was
at the hotels swimming pool area was the cause of her head, eye and neck injuries.
Petitioner reiterates her claim for an award of damages, to wit: actual, including loss of income; moral,
exemplary; as well as attorneys fees, interest and costs of suit. She states that respondents PHI and DTPCI
are liable for quasi-delict under Articles 19, 2176 and 2180 of the New Civil Code. At the same time, they are
liable under an implied contract for they have a public duty to give due courtesy, to exercise reasonable care
and to provide safety to hotel guests, patrons and invitees. Respondent First Lepanto, on the other hand, is
directly liable under the express contract of insurance.
Lastly, petitioner contends that her Motion for Reconsideration before the Court of Appeals was not pro forma
for it specifically pointed out the alleged errors in the Court of Appeals Decision.
The instant Petition is devoid of merit.
Primarily, only errors of law and not of facts are reviewable by this Court in a Petition for Review on Certiorari
under Rule 45 of the Rules of Court.
61
This Court is not a trier of facts and it is beyond its function to re-
examine and weigh anew the respective evidence of the parties.
62
Besides, this Court adheres to the long
standing doctrine that the factual findings of the trial court, especially when affirmed by the Court of Appeals,
are conclusive on the parties and this Court.
63
Nonetheless, this Court has, at times, allowed exceptions
thereto, to wit:
(a) When the findings are grounded entirely on speculation, surmises, or conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went beyond the issues of the case, or its findings
are contrary to the admissions of both the appellant and the appellee;
(g) When the Court of Appeals findings are contrary to those by the trial court;
(h) When the findings are conclusions without citation of specific evidence on which they are based;
(i) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; or
(k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties,
which, if properly considered, would justify a different conclusion.
64

Upon meticulous perusal of the records, however, this Court finds that none of these exceptions is obtaining in
this case. No such justifiable or compelling reasons exist for this Court to depart from the general rule. This
Court will not disturb the factual findings of the trial court as affirmed by the Court of Appeals and adequately
supported by the evidence on record.
Also, this Court will not review the factual findings of the trial court simply because the judge who heard and
tried the case was not the same judge who penned the decision. This fact alone does not diminish the veracity
and correctness of the factual findings of the trial court.
65
Indeed, "the efficacy of a decision is not necessarily
impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial, unless
there is showing of grave abuse of discretion in the factual findings reached by him."
66
In this case, there was
none.
It bears stressing that in this jurisdiction there is a disputable presumption that the trial courts decision is
rendered by the judge in the regular performance of his official duties. While the said presumption is only
disputable, it is satisfactory unless contradicted or overcame by other evidence. Encompassed in this
presumption of regularity is the presumption that the trial court judge, in resolving the case and drafting the
decision, reviewed, evaluated, and weighed all the evidence on record. That the said trial court judge is not
the same judge who heard the case and received the evidence is of little consequence when the records and
transcripts of stenographic notes (TSNs) are complete and available for consideration by the former,
67
just like
in the present case.
Irrefragably, the fact that the judge who penned the trial courts decision was not the same judge who heard
the case and received the evidence therein does not render the findings in the said decision erroneous and
unreliable. While the conduct and demeanor of witnesses may sway a trial court judge in deciding a case, it is
not, and should not be, his only consideration. Even more vital for the trial court judges decision are the
contents and substance of the witnesses testimonies, as borne out by the TSNs, as well as the object and
documentary evidence submitted and made part of the records of the case.
68

This Court examined the records, including the TSNs, and found no reason to disturb the factual findings of
both lower courts. This Court, thus, upholds their conclusiveness.
In resolving the second and third issues, a determination of the cause of action on which petitioners
Complaint for Damages was anchored upon is called for.
Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their negligence but not on
any breach of contract. Surprisingly, when the case was elevated on appeal to the Court of Appeals, petitioner
had a change of heart and later claimed that an implied contract existed between her and respondents PHI
and DTPCI and that the latter were liable for breach of their obligation to keep her safe and out of harm. This
allegation was never an issue before the trial court. It was not the cause of action relied upon by the petitioner
not until the case was before the Court of Appeals. Presently, petitioner claims that her cause of action can be
based both on quasi-delict and breach of contract.
A perusal of petitioners Complaint evidently shows that her cause of action was based solely on quasi-delict.
Telling are the following allegations in petitioners Complaint:
6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00 oclock, after herein
petitioner and her friend from New York, Delia, the latter being then a Hotel guest, were taking their
shower after having a dip in the hotels swimming pool, without any notice or warning, the Hotels staff
put off all the lights within the pool area including the lights on the hallway and also locked the main
entrance door of the pool area, x x x;
7. THAT, Hotel guest Delia started to panic while petitioner pacified her by telling her not to worry as
they would both find their way out. Petitioner knowing that within the area there is a house phone,
started to look around while Delia was following her, eventually petitioner saw a phone behind the
counter x x x, that while slowly moving on towards the phone on a stooping manner due to the
darkness CAUSED BY UNTIMELY AND NEGLIGENTLY PUTTING OFF WITH THE LIGHTS BY THE
HEREIN RESPONDENTS PHI AND DTPCIS EMPLOYEE while passing through the open counter
door with its Folding Counter Top also opened, x x x, a hard and heavy object fell onto the head of the
petitioner that knocked her down almost unconscious which hard and heavy object turned out to be the
Folding Counter Top;
8. THAT, Delia immediately got hold of the house phone and notified the Hotel Telephone Operator
about the incident, immediately the hotel staffs (sic) arrived but they were stranded behind the main
door of the pool entrance and it too (sic) them more than twenty (20) minutes to locate the hotel
maintenance employee who holds the key of the said main entrance door;
9. THAT, when the door was opened, two Hotel Chamber Maids assisted the petitioner to get out of
the counter door. Petitioner being a Physician tried to control her feelings although groggy and
requested for a HURIDOID, a medicine for HEMATOMA, as a huge lump developed on her head while
the two Chamber Maids assisted petitioner by holding the bag of ice on her head and applying the
medicine on the huge lump;
10. THAT, petitioner after having recovered slightly from her nightmare, though still feeling weak,
asked to be assisted to the Hotel Coffee Shop to take a rest but requested for the hotels Physician.
Despite her insistent requests, the Dusit Hotel refused to lift a finger to assists petitioner who was then
in distress until a lady approached and introduced herself as the Hotels house Doctor. Instead
however of assisting petitioner by asking her what kind of assistance the Hotel could render, in a
DISCOURTEOUS MANNER presented instead a paper and demanding petitioner to affix her signature
telling her that the Hotel Management would only assists and answer for all expenses incurred if
petitioner signs the paper presented, but she refused and petitioner instead wrote a marginal note on
the said paper stating her reason therefore, said paper later on turned out to be a WAIVER OF RIGHT
or QUIT CLAIM;
x x x x
14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCIs gross negligence
despite medical assistance, petitioner started to feel losing her memory that greatly affected and
disrupted the practice of her chosen profession x x x.
x x x x
19. THAT, due to respondents PHI and DTPCIs gross negligence as being narrated which caused
petitioner to suffer sleepless nights, depression, mental anguish, serious anxiety, wounded feelings,
and embarrassment with her Diplomate friends in the profession and industry, her social standing in
the community was greatly affected and hence, respondents PHI and DTPCI must be imposed the
hereunder damages, prayed for x x x and Artile (sic) 2176 and 2199 of the New Civil Code of the
Philippines x x x.
x x x x
22. THAT, as to Moral, Exemplary and Actual Damages, as well as petitioners Loss of Income, the
amounts are stated in its prayer hereunder.
69

It is clear from petitioners allegations that her Complaint for Damages was predicated on the alleged
negligence of respondents PHI and DTPCIs staff in the untimely putting off of all the lights within the hotels
swimming pool area, as well as the locking of its main door, prompting her to look for a way out leading to the
fall of the folding wooden counter top on her head causing her serious brain injury. The said negligence was
allegedly compounded by respondents PHI and DTPCIs failure to render prompt and adequate medical
assistance. These allegations in petitioners Complaint constitute a cause of action for quasi-delict, which
under the New Civil Code is defined as an act, or omission which causes damage to another, there being fault
or negligence.
70

It is evident from petitioners Complaint and from her open court testimony that the reliance was on the alleged
tortious acts committed against her by respondents PHI and DTPCI, through their management and staff. It is
now too late in the day to raise the said argument for the first time before this Court.
71

Petitioners belated reliance on breach of contract as her cause of action cannot be sanctioned by this Court.
Well-settled is the rule that a party is not allowed to change the theory of the case or the cause of action on
appeal. Matters, theories or arguments not submitted before the trial court cannot be considered for the first
time on appeal or certiorari.
72
When a party adopts a certain theory in the court below, he will not be permitted
to change his theory on appeal for to permit him to do so would not only be unfair to the other party but it
would also be offensive to the basic rules of fair play, justice and due process.
73
Hence, a party is bound by
the theory he adopts and by the cause of action he stands on and cannot be permitted after having lost
thereon to repudiate his theory and cause of action and adopt another and seek to re-litigate the matter anew
either in the same forum or on appeal.
74

In that regard, this Court finds it significant to take note of the following differences between quasi-delict (culpa
aquilina) and breach of contract (culpa contractual). In quasi-delict, negligence is direct, substantive and
independent, while in breach of contract, negligence is merely incidental to the performance of the contractual
obligation; there is a pre-existing contract or obligation.
75
In quasi-delict, the defense of "good father of a
family" is a complete and proper defense insofar as parents, guardians and employers are concerned, while in
breach of contract, such is not a complete and proper defense in the selection and supervision of
employees.
76
In quasi- delict , there is no presumption of negligence and it is incumbent upon the injured party
to prove the negligence of the defendant, otherwise, the formers complaint will be dismissed, while in breach
of contract, negligence is presumed so long as it can be proved that there was breach of the contract and the
burden is on the defendant to prove that there was no negligence in the carrying out of the terms of the
contract; the rule of respondeat superior is followed.
77

Viewed from the foregoing, petitioners change of theory or cause of action from quasi-delict to breach of
contract only on appeal would necessarily cause injustice to respondents PHI and DTPCI. First, the latter will
have no more opportunity to present evidence to contradict petitioners new argument. Second, the burden of
proof will be shifted from petitioner to respondents PHI and DTPCI. Petitioners change of theory from quasi-
delict to breach ofcontract must be repudiated.
As petitioners cause of action is based on quasi-delict, it is incumbent upon her to prove the presence of the
following requisites before respondents PHI and DTPCI can be held liable, to wit: (a) damages suffered by the
plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and
(c) the connection of cause and effect between the fault or negligence of the defendant and the damages
incurred by the plaintiff.
78
Further, since petitioners case is for quasi-delict , the negligence or fault should be
clearly established as it is the basis of her action.
79
The burden of proof is upon petitioner. Section 1, Rule 131
of the Rules of Court provides that "burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law." It is then up for
the plaintiff to establish his cause of action or the defendant to establish his defense. Therefore, if the plaintiff
alleged in his complaint that he was damaged because of the negligent acts of the defendant, he has the
burden of proving such negligence. It is even presumed that a person takes ordinary care of his concerns. The
quantum of proof required is preponderance of evidence.
80

In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner utterly failed to prove
the alleged negligence of respondents PHI and DTPCI. Other than petitioners self-serving testimony that all
the lights in the hotels swimming pool area were shut off and the door was locked, which allegedly prompted
her to find a way out and in doing so a folding wooden counter top fell on her head causing her injury, no other
evidence was presented to substantiate the same. Even her own companion during the night of the accident
inside the hotels swimming pool area was never presented to corroborate her allegations. Moreover,
petitioners aforesaid allegations were successfully rebutted by respondents PHI and DTPCI. Here, we quote
with conformity the observation of the trial court, thus:
x x x Besides not being backed up by other supporting evidence, said statement is being contradicted by the
testimony of Engineer Dante L. Costas,
81
who positively declared that it has been a normal practice of the
Hotel management not to put off the lights until 10:00P.M. in order to allow the housekeepers to do the
cleaning of the pools surrounding, the toilets and the counters. It was also confirmed that the lights were kept
on for security reasons and so that the people exercising in the nearby gym may be able to have a good view
of the swimming pool. This Court also takes note that the nearby gymnasium was normally open until 10:00
P.M. so that there was a remote possibility the pool area was in complete darkness as was alleged by herein
petitioner, considering that the illumination which reflected from the gym. Ergo, considering that the area were
sufficient (sic) illuminated when the alleged incident occurred, there could have been no reason for the
petitioner to have met said accident, much less to have been injured as a consequence thereof, if she only
acted with care and caution, which every ordinary person is expected to do.
82

More telling is the ratiocination of the Court of Appeals, to wit:
Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its employees were
negligent? We do not think so. Several factors militate against petitioners contention.
One. Petitioner recognized the fact that the pool areas closing time is 7:00 p.m.. She, herself, admitted during
her testimony that she was well aware of the sign when she and Delia entered the pool area. Hence, upon
knowing, at the outset, of the pools closing time, she took the risk of overstaying when she decided to take
shower and leave the area beyond the closing hour. In fact, it was only upon the advise of the pool attendants
that she thereafter took her shower.
Two. She admitted, through her certification, that she lifted the wooden bar countertop, which then fell on to
her head. The admission in her certificate proves the circumstances surrounding the occurrence that
transpired on the night of 11 June 1995. This is contrary to her assertion in the complaint and testimony that,
while she was passing through the counter door, she was suddenly knocked out by a hard and heavy object.
In view of the fact that she admitted having lifted the countertop, it was her own doing, therefore, that made
the counter top fell on to her head.
Three. We cannot likewise subscribe to petitioners assertion that the pool area was totally dark in that she
herself admitted that she saw a telephone at the counter after searching for one. It must be noted that
petitioner and Delia had walked around the pool area with ease since they were able to proceed to the glass
entrance door from the shower room, and back to the counter area where the telephone was located without
encountering any untoward incident. Otherwise, she could have easily stumbled over, or slid, or bumped into
something while searching for the telephone. This negates her assertion that the pool area was completely
dark, thereby, totally impairing her vision.
x x x x
The aforementioned circumstances lead us to no other conclusion than that the proximate and immediate
cause of the injury of petitioner was due to her own negligence.
83
(Emphasis supplied).
Even petitioners assertion of negligence on the part of respondents PHI and DTPCI in not rendering medical
assistance to her is preposterous. Her own Complaint affirmed that respondents PHI and DTPCI afforded
medical assistance to her after she met the unfortunate accident inside the hotels swimming pool facility.
Below is the portion of petitioners Complaint that would contradict her very own statement, thus:
14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCIs gross negligence despite
medical assistance, petitioner started to feel losing her memory that greatly affected and disrupted the
practice of her chosen profession. x x x.
84
(Emphasis supplied).
Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended medical assistance to
petitioner but it was petitioner who refused the same. The trial court stated, thus:
Further, herein petitioners asseverations that the Hotel Management did not extend medical assistance to her
in the aftermath of the alleged accident is not true. Again, this statement was not supported by any evidence
other that the sole and self-serving testimony of petitioner. Thus, this Court cannot take petitioners statement
as a gospel truth. It bears stressing that the Hotel Management immediately responded after it received notice
of the incident. As a matter of fact, Ms. Pearlie, the Hotel nurse, with two chambermaids holding an ice bag
placed on petitioners head came to the petitioner to extend emergency assistance when she was notified of
the incident, but petitioner merely asked for Hirudoid, saying she was fine, and that she was a doctor and
know how to take care of herself. Also, the Hotel, through its in-house physician, Dr. Dalumpines offered its
medical services to petitioner when they met at the Hotels coffee shop, but again petitioner declined the offer.
Moreover, the Hotel as a show of concern for the petitioners welfare, shouldered the expenses for the MRI
services performed on petitioner at the Makati Medical Center. Emphatically, petitioner herself cannot fault the
Hotel for the injury she allegedly suffered because she herself did not heed the warning at the pool to the
effect that it was only open from 7:00 to 7:00 P.M. Thus, when the petitioners own negligence was the
immediate and proximate cause of his injury, shecannot recover damages x x x.
85

With the foregoing, the following were clearly established, to wit: (1) petitioner stayed in the hotels swimming
pool facility beyond its closing hours; (2) she lifted the folding wooden counter top that eventually hit her head;
and (3) respondents PHI and DTPCI extended medical assistance to her. As such, no negligence can be
attributed either to respondents PHI and DTPCI or to their staff and/or management. Since the question of
negligence is one of fact, this Court is bound by the said factual findings made by the lower courts. It has been
repeatedly held that the trial court's factual findings, when affirmed by the Court of Appeals, are conclusive
and binding upon this Court, if they are not tainted with arbitrariness or oversight of some fact or circumstance
of significance and influence. Petitioner has not presented sufficient ground to warrant a deviation from this
rule.
86

With regard to petitioners contention that the principles of res ipsa loquitur and respondeat superior are
applicable in this case, this Court holds otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." It
relates to the fact of an injury that sets out an inference to the cause thereof or establishes the plaintiffs prima
facie case. The doctrine rests on inference and not on presumption. The facts of the occurrence warrant the
supposition of negligence and they furnish circumstantial evidence of negligence when direct evidence is
lacking.
87
Simply stated, this doctrine finds no application if there is direct proof of absence or presence of
negligence. If there is sufficient proof showing the conditions and circumstances under which the inj ury
occurred, then the creative reason for the said doctrine disappears.
88

Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such character as to warrant
an inference that it would not have happened except for the defendants negligence; (2) the accident must
have been caused by an agency or instrumentality within the exclusive management or control of the person
charged with the negligence complained of; and (3) the accident must not have been due to any voluntary
action or contribution on the part of the person injured.
89

In the case at bench, even granting that respondents PHI and DTPCIs staff negligently turned off the lights
and locked the door, the folding wooden counter top would still not fall on petitioners head had she not lifted
the same. Although the folding wooden counter top is within the exclusive management or control of
respondents PHI and DTPCI, the falling of the same and hitting the head of petitioner was not due to the
negligence of the former. As found by both lower courts, the folding wooden counter top did not fall on
petitioners head without any human intervention. Records showed that petitioner lifted the said folding
wooden counter top that eventually fell and hit her head. The same was evidenced by the, (1) 11 June 1995
handwritten certification of petitioner herself; (2) her Letter dated 30 August 1995 addressed to Mr. Yoshikazu
Masuda (Mr. Masuda), General Manager of Dusit Hotel; and, (3) Certification dated 7 September 1995 issued
to her by Dr. Dalumpines upon her request, which contents she never questioned.
Here, we, respectively, quote the 11 June 1995 handwritten certification of petitioner; her letter to Mr. Masuda
dated 30 August 1995; and Dr. Dalumpines Certification dated 7 September 1995, to wit:
Petitioners 11 June 1995 Handwritten Certification:
I was requested by Dr. Dalumpines to write that I was assured of assistance should it be necessary with
regard an accident at the pool. x x x The phone was in an enclosed area on a chair I lifted the wooden bar
counter top which then fell on my head producing a large hematoma x x x.
90

Petitioners Letter addressed to Mr. Masuda dated 30 August 1995:
Dear Mr. Masuda,
x x x x
x x x We searched and saw a phone on a chair behind a towel counter. However, in order to get behind the
counter I had to lift a hinged massive wooden section of the counter which subsequently fell and knocked me
on my head x x x.
91

Dr. Dalumpines Certification dated 7 September 1995:
C E R T I F I C A T I O N
This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to an accident at the
poolside at 7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who claimed the folding countertop fell on her head when
she lifted it to enter the lifeguards counter to use the phone. She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After narrating the poolside incident and
declining Dr. Dalumpines offer of assistance, she reiterated that the Hirudoid cream was enough and that
petitioner]being a doctor herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose it may serve, 7 September 1995
at Makati City.
92
(Emphasis supplied).
This Court is not unaware that in petitioners Complaint and in her open court testimony, her assertion was,
"while she was passing through the counter door, she was suddenly knocked out by a hard and heavy object,
which turned out to be the folding wooden counter top." However, in her open court testimony, particularly
during cross-examination, petitioner confirmed that she made such statement that "she lifted the hinge
massive wooden section of the counter near the swimming pool."
93
In view thereof, this Court cannot
acquiesce petitioners theory that her case is one of res ipsa loquitur as it was sufficiently established how
petitioner obtained that "bukol" or "hematoma."
The doctrine of respondeat superior finds no application in the absence of any showing that the employees of
respondents PHI and DTPCI were negligent. Since in this case, the trial court and the appellate court found no
negligence on the part of the employees of respondents PHI and DTPCI, thus, the latter cannot also be held
liable for negligence and be made to pay the millions of pesos damages prayed for by petitioner.
The issue on whether petitioners debilitating and permanent injuries were the result of the accident she
suffered at the hotels swimming pool area on 11 June 1995 is another question of fact, which is beyond the
function of this Court to resolve. More so, this issue has already been properly passed upon by the trial court
and the Court of Appeals. To repeat, this Court is bound by the factual findings of the lower courts and there is
no cogent reason to depart from the said rule.
The following observations of the trial court are controlling on this matter:
Firstly, petitioner had a past medical history which might have been the cause of her recurring brain injury.
Secondly, the findings of Dr. Perez did not prove a causal relation between the 11 June 1995 accident and the
brain damage suffered by petitioner. Dr. Perez himself testified that the symptoms being experienced by
petitioner might have been due to factors other than the head trauma she allegedly suffered. Emphasis must
be given to the fact that petitioner had been suffering from different kinds of brain problems since she was 18
years old, which may have been the cause of the recurring symptoms of head injury she is experiencing at
present.
Thirdly, Dr. Sanchezs testimony cannot be relied upon since she testified on the findings and conclusions of
persons who were never presented in court. Ergo, her testimony thereon was hearsay. A witness can testify
only with regard to facts of which they have personal knowledge. Testimonial or documentary evidence is
hearsay if it is based, not on the personal knowledge of the witness, but on the knowledge of some other
person not on the witness stand. Consequently, hearsay evidence -- whether objected to or not -- has no
probative value.
94

Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors whom petitioner sought
for examination or treatment were neither identified nor testified to by those who issued them. Being deemed
as hearsay, they cannot be given probative value.1wphi1
The aforesaid medical reports/evaluations/certifications of different doctors in favor of petitioner cannot be
given probative value and their contents cannot be deemed to constitute proof of the facts stated therein. It
must be stressed that a document or writing which is admitted not as independent evidence but merely as part
of the testimony of a witness does not constitute proof of the facts related therein.
95
In the same vein, the
medical certificate which was identified and interpreted in court by another doctor was not accorded probative
value because the doctor who prepared it was not presented for its identification. Similarly, in this case, since
the doctors who examined petitioner were not presented to testify on their findings, the medical certificates
issued on their behalf and identified by another doctor cannot be admitted as evidence. Since a medical
certificate involves an opinion of one who must first be established as an expert witness, it cannot be given
weight or credit unless the doctor who issued it is presented in court to show his qualifications.
96
Thus, an
unverified and unidentified private document cannot be accorded probative value. It is precluded because the
party against whom it is presented is deprived of the right and opportunity to cross-examine the person to
whom the statements or writings are attributed. Its executor or author should be presented as a witness to
provide the other party to the litigation the opportunity to question its contents. Being mere hearsay evidence,
failure to present the author of the letter renders its contents suspect and of no probative value.
97

All told, in the absence of negligence on the part of respondents PHI and DTPCI, as well as their management
and staff, they cannot be made Iiable to pay for the millions of damages prayed for by the petitioner. Since
respondents PHI and DTPCI arc not liable, it necessarily follows that respondent First Lepanto cannot also be
made liable under the contract or Insurance.
WHEREFORE, premises considered, the Decision and Resolution or the Court of Appeals in CA-G.R. CV No.
87065 dated 9 August 2007 and 5 November 2007, respectively, are hereby AFFIRMED. Costs against
petitioner.