Tort vs.

Quasi-delict

business or an industry.
xxx

MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children
KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO,
in his capacity as Presiding Judge of the Regional Trial Court National Capital
Region, Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO.,
INC., and SUPERGUARD SECURITY CORPORATION, respondents.

Meanwhile, an Information, charging Benigno Torzuela with homicide,was

filed before the Regional Trial Court of Makati.
RTC Judge Rginogranted Safeguards motion to dismiss and
Superguards motion for exclusion.
CAAffirmed.

ISSUE:
Keywords: Barilan sa Big Bang sa Alabang; liability of company for a criminal act
done deliberately while on duty

WoN Maria Dulay has cause of action against Safeguard and/or Superguard to hold
them liable for the criminal act of Torzuela.

FACTS:

An altercation occurred between Atty. Napoleon Dulay (deceased) and

Benigno Torzuela, the security guard on duty, and the latter shot and killed
Atty. Dulay with a .38 caliber revolver belonging to his employers,
Safeguard Investigation and Security Co., Inc. (Safeguard) and/or
Superguard Security Corp. (Superguard)
Maria Benita A. Dulay, widow of the deceased, filed an action for damages
against Benigno Torzuela, Safeguard and Superguard (as alternative
defendants)
o
The complaint alleged that the incident was due to the concurring
negligence

Torzuelas wanton and reckless discharge of the

firearm issued to him

Safeguard and/or Superguards failure to exercise the

diligence of a good father in the supervision and control
of its employee
o
Maria Dulay prayed for actual, compensatory, moral and
exemplary damages, and attorney's fees.
Superguard filed a Motion to Dismiss on the ground that the complaint does
not state a valid cause of action.
Safeguard also filed a motion praying that it be excluded as defendant on
the ground that defendant Torzuela is not one of its employees.
Maria Dulay opposed both motions, stating that their cause of action is
based upon their liability under Article 2180 of the New Civil Code:
o
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
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

HELD:
YES.
RATIO

Although Torzuela is being prosecuted for homicide, Maria Dulay still has
the right to file in independent civil action to recover damages for the fatal
shooting of Atty. Dulay.
o
Section 1, of Rule 111 of the Rules on Criminal Procedure1 that a
civil action may be separately instituted when the party expressly
reserves the right to do so or when it is instituted prior to the
criminal action.
o
Yakult Philippines v. Court of Appeals: The filing of an
independent civil action before the prosecution in the criminal
action presents evidence is even far better than a compliance with
the requirement of express reservation.
This is precisely what the Maria Dulay opted to do. However, the Safeguard
and/or Superguard opposed the civil action on the ground that the same is
founded on a delict and not on a quasi-delict as the shooting was not
attended by negligence.
There is no justification for limiting the scope of Article 2176 of the Civil
Code2 to acts or omissions resulting from negligence.

Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the
recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil
action , reserves his right to institute it separately or institutes the civil action prior to the criminal action.
1

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32,
33, 34, and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.
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
2

Elcano v. Hill (echoed by Andamo v. Intermediate Appellate

Court): "Fault or negligence," covers not only acts "not
punishable by law" but also acts criminal in character. A
separate civil action lies against the offender, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that
the offended party is not allowed to recover damages on both
scores.
Private respondents further aver that Article 33 of the Civil Code3 applies
only to injuries intentionally committed4 and that the actions for damages
allowed thereunder are ex-delicto.
o
Physical injuries is discussed in jurisprudence, to wit:

It includes bodily injuries causing death5.

It is not the crime of physical injuries defined in the

Revised Penal Code.

It includes not only physical injuries but also

consummated, frustrated, and attempted homicide.6
o
Marcia V. CA: No independent civil action may be filed under
Article 33 where the crime is the result of criminal negligence.

However, since Torzuela is charged with homicide, and

not with reckless imprudence, a civil action based on
Article 33 lies.
Safeguard and/or Superguard further contend that they are not liable for
Torzuela's act which is beyond the scope of his duties as a security guard.
And their liability (if any) would only be subsidiary under the Revised Penal
Code.
Layugan v. Intermediate Appellate Court: Under Article 2180 of the New
Civil Code7 when an injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the selection of
the servant or employee, or in supervision over him after selection or
both.
o
The liability of the employer under Article 2180 is direct and
immediate; it is not conditioned upon prior recourse against the
negligent employee and a prior showing of the insolvency of such

employee.8
Therefore, it is incumbent upon Safeguar and/or Superguard to prove that
they exercised the diligence of a good father of a family in the
selection and supervision of their employee.
[Side issue] Whether the complaint states a sufficient cause of action
o
General rule: allegations in a complaint are sufficient to constitute
a cause of action against the defendants if, admitting the facts
alleged, the court can render a valid judgment upon the same in
accordance with the prayer therein.
o
Elements of a cause of action:

A right in favor of the plaintiff by whatever means and

under whatever law it arises or is created;

An obligation on the part of the named defendant to

respect or not to violate such right; and

An act or omission on the part of such defendant

violative of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff
for which the latter may maintain an action for recovery
of damages.
The Court finds, that the complaint sufficiently alleged an actionable breach
on the part of the defendant Torzuela and Safeguard and/or Superguard.
o
This does not operate however, to establish that the defendants
below are liable. Such question would be better resolved after trial
on the merits.

parties is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence.
4 Marcia v. CA
5 Capuno v. Pepsi-Cola Bottling Co. of the Philippines
6 Madeja v. Caro
7 Art. 2180. 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.
3

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 an industry.

Kapalaran Bus Lines v. Coronado

Quasi-Delict and Contract

AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.

HELD 1: Yes. It appears that Air Frances liability is based on culpa-contractual and
on culpa aquiliana.
Culpa Contractual
There exists a contract of carriage between Air France and Carrascoso. There was a
contract to furnish Carrasocoso a first class passage; Second, That said contract was

In March 1958, Rafael Carrascoso and several other Filipinos were tourists en route to
Rome from Manila. Carrascoso was issued a first class round trip ticket by Air France.
But during a stop-over in Bangkok, he was asked by the plane manager of Air France
to vacate his seat because a white man allegedly has a better right than him.
Carrascoso protested but when things got heated and upon advise of other Filipinos
on board, Carrascoso gave up his seat and was transferred to the planes tourist
class.
After their tourist trip when Carrascoso was already in the Philippines, he sued Air
France for damages for the embarrassment he suffered during his trip. In court,
Carrascoso testified, among others, that he when he was forced to take the tourist
class, he went to the planes pantry where he was approached by a plane purser who
told him that he noted in the planes journal the following:
First-class passenger was forced to go to the tourist class against his will, and that the
captain refused to intervene

breached when Air France failed to furnish first class transportation at Bangkok;
and Third, that there was bad faith when Air Frances 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.
The Supreme Court did not give credence to Air Frances claim that the issuance of a
first class ticket to a passenger is not an assurance that he will be given a first class
seat. Such claim is simply incredible.
Culpa Aquiliana
Here, the SC ruled, even though there is a contract of carriage between Air France
and Carrascoso, there is also a tortuous act based on culpa aquiliana. Passengers do

The said testimony was admitted in favor of Carrascoso. The trial court eventually

not contract merely for transportation. They have a right to be treated by the carriers

awarded damages in favor of Carrascoso. This was affirmed by the Court of Appeals.

employees with kindness, respect, courtesy and due consideration. They are entitled

Air France is assailing the decision of the trial court and the CA. It avers that the

to be protected against personal misconduct, injurious language, indignities and

issuance of a first class ticket to Carrascoso was not an assurance that he will be

abuses from such employees. So it is, that any rule or discourteous conduct on the

seated in first class because allegedly in truth and in fact, that was not the true intent

part of employees towards a passenger gives the latter an action for damages against

between the parties.

the carrier. Air Frances contract with Carrascoso is one attended with public duty. The

Air France also questioned the admissibility of Carrascosos testimony regarding the

stress of Carrascosos action is placed upon his wrongful expulsion. This is a violation

note made by the purser because the said note was never presented in court.

of public duty by the Air France a case of quasi-delict. Damages are proper.

ISSUE 1: Whether or not Air France is liable for damages and on what basis.

HELD: 2: Yes. The testimony of Carrascoso must be admitted based on res gestae.
The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry

ISSUE 2: Whether or not the testimony of Carrasoso regarding the note which was not

does not come within the proscription of the best evidence rule. Such testimony is

presented in court is admissible in evidence.

admissible. Besides, when the dialogue between Carrascoso and the purser
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. 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. It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.

SPOUSES FERNANDO and LOURDES VILORIA, Petitioners, - versus CONTINENTAL AIRLINES, INC., Respondent.

Facts: On or about July 21, 1997 and while in the United States, Fernando purchased
for himself and his wife, Lourdes, two (2) round trip airline tickets from San Diego,
California to Newark, New Jersey on board Continental Airlines. Fernando purchased
the tickets at US$400.00 each from a travel agency called Holiday Travel and was
attended to by a certain Margaret Mager (Mager). According to Spouses Viloria,
Fernando agreed to buy the said tickets after Mager informed them that there were no
available seats at Amtrak, an intercity passenger train service provider in the United
States. Subsequently, Fernando requested Mager to reschedule their flight to Newark
to an earlier date or August 6, 1997. Mager informed him that flights to Newark via
Continental Airlines were already fully booked and offered the alternative of a round
trip flight via Frontier Air.
As he was having second thoughts on traveling via Frontier Air, Fernando
went to the Greyhound Station where he saw an Amtrak station nearby. Fernando
made inquiries and was told that there are seats available and he can travel on
Amtrak anytime and any day he pleased. Fernando then purchased two (2) tickets for
Washington, D.C.
From Amtrak, Fernando went to Holiday Travel and confronted Mager with
the Amtrak tickets, telling her that she had misled them into buying the Continental
Airlines tickets by misrepresenting that Amtrak was already fully booked. Fernando
reiterated his demand for a refund but Mager was firm in her position that the subject
tickets are non-refundable.
Upon returning to the Philippines, Fernando sent a letter to CAI on February
11, 1998, demanding a refund and alleging that Mager had deluded them into
purchasing the subject tickets.
In a letter dated June 21, 1999, Fernando demanded for the refund of the
subject tickets as he no longer wished to have them replaced. In addition to the
dubious circumstances under which the subject tickets were issued, Fernando claimed
that CAIs act of charging him with US$1,867.40 for a round trip ticket to Los Angeles,
which other airlines priced at US$856.00, and refusal to allow him to use Lourdes
ticket, breached its undertaking under its March 24, 1998 letter.
On September 8, 2000, Spouses Viloria filed a complaint against CAI,
praying that CAI be ordered to refund the money they used in the purchase of the
subject tickets with legal interest from July 21, 1997 and to payP1,000,000.00 as
moral damages, P500,000.00 as exemplary damages and P250,000.00 as attorneys
fees.
Issue: Does a principal-agent relationship exist between CAI and Holiday Travel?
Assuming that an agency relationship exists between CAI and Holiday Travel, is CAI
bound by the acts of Holiday Travels agents and employees such as Mager?
Doctrine and Held: Contrary to the findings of the CA, all the elements of an agency
exist in this case. The first and second elements are present as CAI does not deny
that it concluded an agreement with Holiday Travel, whereby Holiday Travel would

enter into contracts of carriage with third persons on CAIs behalf. The third element is
also present as it is undisputed that Holiday Travel merely acted in a representative
capacity and it is CAI and not Holiday Travel who is bound by the contracts of carriage
entered into by Holiday Travel on its behalf. The fourth element is also present
considering that CAI has not made any allegation that Holiday Travel exceeded the
authority that was granted to it. In fact, CAI consistently maintains the validity of the
contracts of carriage that Holiday Travel executed with Spouses Viloria and that
Mager was not guilty of any fraudulent misrepresentation. That CAI admits the
authority of Holiday Travel to enter into contracts of carriage on its behalf is easily
discernible from its February 24, 1998 and March 24, 1998 letters, where it impliedly
recognized the validity of the contracts entered into by Holiday Travel with Spouses
Viloria. When Fernando informed CAI that it was Holiday Travel who issued to them
the subject tickets, CAI did not deny that Holiday Travel is its authorized agent.
This Court cannot therefore allow CAI to take an altogether different position
and deny that Holiday Travel is its agent without condoning or giving imprimatur to
whatever damage or prejudice that may result from such denial or retraction to
Spouses Viloria, who relied on good faith on CAIs acts in recognition of Holiday
Travels authority. Estoppel is primarily based on the doctrine of good faith and the
avoidance of harm that will befall an innocent party due to its injurious reliance, the
failure to apply it in this case would result in gross travesty of justice. 20 Estoppel bars
CAI from making such denial.
2nd Issue
A prior determination of the nature of the passengers cause of action is
necessary. If the passengers cause of action against the airline company is premised
on culpa aquiliana or quasi-delict for a tort committed by the employee of the airline
companys agent, there must be an independent showing that the airline company
was at fault or negligent or has contributed to the negligence or tortuous conduct
committed by the employee of its agent. The mere fact that the employee of the airline
companys agent has committed a tort is not sufficient to hold the airline company
liable. There is no vinculum juris between the airline company and its agents
employees and the contractual relationship between the airline company and its agent
does not operate to create a juridical tie between the airline company and its agents
employees. Article 2180 of the Civil Code does not make the principal vicariously
liable for the tort committed by its agents employees and the principal-agency
relationship per se does not make the principal a party to such tort; hence, the need to
prove the principals own fault or negligence.
On the other hand, if the passengers cause of action for damages against
the airline company is based on contractual breach or culpa contractual, it is not
necessary that there be evidence of the airline companys fault or negligence. All that
he has to prove is the existence of the contract and the fact of its non-performance by
the carrier.
It is incumbent upon Spouses Viloria to prove that CAI exercised control or
supervision over Mager by preponderant evidence. The existence of control or
supervision cannot be presumed and CAI is under no obligation to prove its denial or
nugatory assertion. Therefore, without a modicum of evidence that CAI exercised
control over Holiday Travels employees or that CAI was equally at fault, no liability
can be imposed on CAI for Magers supposed misrepresentation.

CONCLUSION
CAIs liability for damages for its refusal to accept Lourdes ticket for the
purchase of Fernandos round trip ticket is offset by Spouses Vilorias liability for their
refusal to pay the amount, which is not covered by the subject tickets. Moreover, the
contract between them remains, hence, CAI is duty bound to issue new tickets for a
destination chosen by Spouses Viloria upon their surrender of the subject tickets and
Spouses Viloria are obliged to pay whatever amount is not covered by the value of the
subject tickets.
Another consideration that militates against the propriety of holding CAI
liable for moral damages is the absence of a showing that the latter acted fraudulently
and in bad faith. Article 2220 of the Civil Code requires evidence of bad faith and fraud
and moral damages are generally not recoverable in culpa contractual except when
bad faith had been proven.48 The award of exemplary damages is likewise not
warranted. Apart from the requirement that the defendant acted in a wanton,
oppressive and malevolent manner, the claimant must prove his entitlement to moral
damages
THINGS TO TAKE NOTE OF
Out of the above given principles, sprung the creation
and acceptance of the relationship of agency whereby one party,
called the principal (mandante), authorizes another, called the
agent (mandatario), to act for and in his behalf in transactions with
third persons. The essential elements of agency are: (1) there is
consent, express or implied of the parties to establish the
relationship; (2) the object is the execution of a juridical act in
relation to a third person; (3) the agent acts as a representative
and not for himself, and (4) the agent acts within the scope of his
authority.

Agency is basically personal, representative, and derivative in nature. The authority of

the agent to act emanates from the powers granted to him by his principal; his act is
the act of the principal if done within the scope of the authority.
Considering that the fundamental hallmarks of an agency are present, this Court finds
it rather peculiar that the CA had branded the contractual relationship between CAI
and Holiday Travel as one of sale. The distinctions between a sale and an agency are
not difficult to discern and this Court, as early as 1970, had already formulated the
guidelines that would aid in differentiating the two (2) contracts. In Commissioner of
Internal Revenue v. Constantino,21 this Court extrapolated that the primordial
differentiating consideration between the two (2) contracts is the transfer of ownership
or title over the property subject of the contract. In an agency, the principal retains
ownership and control over the property and the agent merely acts on the principals

behalf and under his instructions in furtherance of the objectives for which the agency
was established. On the other hand, the contract is clearly a sale if the parties
intended that the delivery of the property will effect a relinquishment of title, control
and ownership in such a way that the recipient may do with the property as he
pleases.

Art. 1173 of the Civil Code

DAVID TAYLOR, plaintiff-appellee, vs. THE MANILA ELECTRIC RAILROAD AND
LIGHT COMPANY, defendant-appellant.
David Taylor was a 15 year old boy who spent time as a cabin boy at sea; he was also
able to learn some principles of mechanical engineering and mechanical drawing from
his dads office (his dad was a mechanical engineer); he was also employed as a
mechanical draftsman earning P2.50 a day all said, Taylor was mature well beyond
his age.
One day in 1905, he and another boy entered into the premises of Manila Electric
power plant where they found 20-30 blasting caps which they took home. In an effort
to explode the said caps, Taylor experimented until he succeeded in opening the caps
and then he lighted it using a match which resulted to the explosion of the caps
causing severe injuries to his companion and to Taylor losing one eye.
Taylor sued Manila Electric alleging that because the company left the caps exposed
to children, they are liable for damages due to the companys negligence.
ISSUE: Whether or not Manila Electric is liable for damages.
HELD: No. The SC reiterated the elements of quasi delict as follows:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
In the case at bar, it is true that Manila Electric has been negligent in disposing off the
caps which they used for the power plant, and that said caps caused damages to
Taylor. However, the causal connection between the companys negligence and the
injuries sustained by Taylor is absent. It is in fact the direct acts of Taylor which led to
the explosion of the caps as he even, in various experiments and in multiple attempts,
tried to explode the caps. It is from said acts that led to the explosion and hence the
injuries.
Taylor at the time of the accident was well-grown youth of 15, more mature both
mentally and physically than the average boy of his age; he had been to sea as a
cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after
the injury was incurred; and the record discloses throughout that he was exceptionally

well qualified to take care. The evidence of record leaves no room for doubt that he
well knew the explosive character of the cap with which he was amusing himself. The
series of experiments made by him in his attempt to produce an explosion admit of no
other explanation. His attempt to discharge the cap by the use of electricity, followed
by his efforts to explode it with a stone or a hammer, and the final success of his
endeavors brought about by the applications of a match to the contents of the cap,
show clearly that he knew what he was about. Nor can there be any reasonable doubt
that he had reason to anticipate that the explosion might be dangerous.
The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he cannot demand reparation therefor from another.

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and

ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO
C. AGUILAR and CRISELDA R. AGUILAR, respondents.

-counter was made of sturdy wood with strong support (never fell ever
since it was made 15 yrs ago)
-it maintained due diligence of a good father in the selection and
supervision and control of employees

Facts:

Petitioner: Jarco Marketing is the owner of Syvels Dept Store9 in Makati

Private Respondent: parents of Zhieneth (6-yr old deceased)
One afternoon, CRISELDA and ZHIENETH were at 2nd flr of the said dept
store
-Criselda was signing her credit card slip at the payment counter when
she felt a sudden gust of wind and heard a loud bang

-employees raised due care and diligence in performance of its duties

-complaint was malicious causing them damaged reputation and
mental anguish
prayed for dismissal of comlaint, award of moral and exemplary
damages, attys fees

-looked behind her

-saw daughter on the floor, body pinned by the stores giftwrapping
counter

-counter was at the end or at the corner therefore not a nuisance;

counter higher than the child; counter existing for 15 yrs with a safe
and well-balanced structure

-child immediately brought to the Makati Med hospital

Next day, the child lost her speech and communicated to mother through
writing
Child died 14 days after the accident on the hospital bed
-Cause of death: injuries sustained10

After burial, private respondents demanded reimbursement

hospitalization, medical bills, wake and funeral expenses
-Jarco refused to pay

Private respondents filed a complaint for damages

*Jarcos side:

-former stores employee Gonzales who accompanied the child to

the hospital testified that the child said she never climbed the
counter and it just fell on her (res gestae)
-the mother was not negligent because it was reasonable for her to
have let go of the child at the precise moment she was signing the
card slip

-the child was guilty of contributory negligence when she climbed the
counter triggering its collapse on her

Employees: Kong (branch manager), Tiope (operations manager), Panelo

(supervisor)
10
Shock, liver hemorrhage, stomach rupture, hematoma, lung contusions

Private respondents appealed. Alleged that:

-TC erred in its findings
-the child below nine (9) is incapable of contributory negligence -also physically impossible for her to have propped herself to the
counter [small frame of 4ft and 70 lbs] and the counter was heavier
than her

of

-the mother was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store filled with
glassware and appliances

the

-attributed also to mothers negligence

-immediately asked for assistance of the people around in lifting the

counter and retrieving the child

TC: dismissed complaint and counterclaim after finding that

preponderance of evidence favored petitioners
-proximate cause: act of the child in climbing the counter

-proximate cause must be Jarcos negligence in failing to have the

counter nailed

Petitioner answered denying the negligence (counter need not be nailed for
it was existing for 15 yrs without any prior accident and its placed at a

corner to avoid such accidents; hence, exercised due diligence on that

matter)
CA: REVERSED in favor of private respondents
-Jarco was negligent in maintaining a structurally dangerous counter
(shaped like an inverted L with a top wider and heavier than the
base)

happening without any human agency or

if theres any, an event which under the
circumstances is unusual or unexpected
by the person whom it happens
-the person concerned is exercising
ordinary care

-two former employees had already informed the management the

danger the counter could cause but were ignored
-Jarco faulted in that omission (inconsequential that the counter had
been in use for some time without prior incident
-the child was absolutely incapable of negligence or other tort (not
liable for intentional wrong)
-absolved the mother of any negligence
-rejected petitioners testimony for being biased and prejudiced
-gave credit to disinterested testimonies of witnesses
-award: actual damages (hospitalization, etc); NO funeral expenses
(not established); compensatory damages (P50k)

Jarco then sought for reversal of CA decision

Issues:
1.
2.

Whether the death was accidental or attributable to

negligence
if attributable to negligence, whose negligence? (Jarco or
mother & child)

2.

-failure to observe, for the protection of

the interest of another person, that
degree of care, precaution and vigilance
which the circumstances justly demand,
whereby such other person suffers injury
-the person concerned failed to exercise
ordinary care
o
accident and negligence are totally contradictory (one cannot
exist with the other)
o
death of the child NOT an accident but could only be
attributed to negligence
o
testimony of Gonzales is part of res gestae: under the
circumstances that the child is suffering extreme pain, it seems
impossible for her to tell a lie
o
Jarco had been negligent in its omission to secure or make stable
the counters base; hence, failed to discharge the due diligence
required of a good father of a family
Jarcos negligence
o
testimonies of Gonzales and another former employee saying that
they notified the management even prior the incident about the
danger of the counter yet their suggestion of nailing the counter
remains unheeded
o
Jarco failed to establish that these testimonies were biased;
hence, findings of TC not to be disturbed
o
Negligence NOT attributable to the child since there is a
conclusive presumption that favors children below 9 in that
they are incapable of contributory negligence
SANGCO: a child under 9 is presumed to have acted without
discernment and thus exempted from criminal liability; since
negligence may be a felony and a quasi delict and required
discernment as a condition for liability, either crim or civil, a
child under 9 is, by analogy, conclusively presumed to be
incapable of negligence (gen. rule: children below 9 in that
they are incapable of contributory negligence)
o
o

Held:
1.

Accident
-Unforeseen event in which no fault or
negligence attaches to the defendant

-fortuitous

attributable to negligence
o
accident vs. negligence:

circumstance,

event,

or

Negligence
-omission to do something which a
reasonable man, guided by those
considerations which ordinarily regulate
the conduct of human affairs, would do,
or the doing of something which a
prudent and reasonable man would not
do

Frail 6-yr old child could not have caused the counters collapse
Physical analysis shows that the counter was not durable after all
(inverted L with heavier top; protruded towards customer waiting
are; base not secured)
The mother should also be absolved of negligence; she
momentarily let go of the hand of the child she was holding as she
was signing the card slip which is reasonable; moreover, the child
was just a foot away from her and the counter was just 4m away
from her (time & distance significant which show that mother was
near and the child was not loitering); child admitted that she did
nothing when being treated by the doctor.

HELD: No. As established by the facts, MWD was not negligent in selecting its
employees as all of them were duly certified. MWD was not negligent in managing the
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, vs. METROPOLITAN

pools as there were proper safety measures and precautions/regulations that were

WATER DISTRICT, defendant-appellee.

placed all over the pools. Hence, due diligence is appreciated as a complete and
proper defense in this case. Further, the testimony in court by the elder Ong and the

On July 5, 1952, Dominador Ong (14 years old) and his two brothers went to the

other witness was belied by the statements they have given to the investigators when

swimming pool operated by Metropolitan Water District (MWD). After paying the

they said that the lifeguard immediately dove into the water when he was called about

entrance fee, the three proceeded to the small pool.

the boy at the bottom of the pool.

The swimming pools of MWD are provided with a ring buoy, toy roof, towing line,

The doctrine of Last Clear Chance is of no application here. It was not established as

oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with

to how Dominador was able to go to the big pool. He went to the locker and thereafter

black colors so as to insure clear visibility. There is on display in a conspicuous place

no one saw him returned not until his body was retrieved from the bottom of the big

within the area certain rules and regulations governing the use of the pools. MWD

pool. The last clear chance doctrine can never apply where the party charged is

employs six lifeguards who are all trained as they had taken a course for that purpose

required to act instantaneously (how can the lifeguard act instantaneously in

and were issued certificates of proficiency. These lifeguards work on schedule

dissuading Dominador from going to the big pool if he did not see him go there), and if

prepared by their chief and arranged in such a way as to have two guards at a time on

the injury cannot be avoided by the application of all means at hand after the peril is or

duty to look after the safety of the bathers. There is a male nurse and a sanitary

should have been discovered; at least in cases in which any previous negligence of

inspector with a clinic provided with oxygen resuscitator. And there are security guards

the party charged cannot be said to have contributed to the injury.

who are available always in case of emergency.

Later, Dominador told his brothers that hell just be going to the locker room to drink a
bottle of Coke. No one saw him returned. Later, the elder Ong noticed someone at the
bottom of the big pool and notified the lifeguard in attendant (Manuel Abao), who
immediately dove into the water. The body was later identified as Dominadors. He
was attempted to be revived multiple times but of no avail.
The parents of Ong sued MWD averring that MWD was negligent in selecting its
employees. During trial, the elder brother of Ong and one other testified that Abao
was reading a magazine and was chatting with a security guard when the incident
happened and that he was called a third time before he responded. Plaintiff further
alleged that even assuming that there was no negligence on the part of MWD, it is still
liable under the doctrine of Last Clear Chance for having the last opportunity to save
the Dominador, its employees failed to do so.
ISSUE: Whether or not MWD is liable for the death of Dominador Ong.

CIVIL AERONAUTICS ADMINISTRATION, petitioner,

vs.
COURT OF APPEALS and ERNEST E. SIMKE, respondents.

Judgment was rendered in private respondent's favor prompting petitioner to appeal to

the Court of Appeals. The latter affirmed the trial court's decision. Petitioner then filed
with the same court a Motion for, Reconsideration but this was denied.

CORTES, J.:

Petitioner now comes before this Court raising the following assignment of errors:

Assailed in this petition for review on certiorari is the decision of the Court of Appeals
affirming the trial court decision which reads as follows:

1. The Court of Appeals gravely erred in not holding that the present the CAA is really
a suit against the Republic of the Philippines which cannot be sued without its
consent, which was not given in this case.

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the

amount of P15,589.55 as full reimbursement of his actual medical and hospital
expenses, with interest at the legal rate from the commencement of the suit; the
amount of P20,200.00 as consequential damages; the amount of P30,000.00 as moral
damages; the amount of P40,000.00 as exemplary damages; the further amount of
P20,000.00 as attorney's fees and the costs [Rollo, p. 24].
The facts of the case are as follows:
Private respondent is a naturalized Filipino citizen and at the time of the incident was
the Honorary Consul Geileral of Israel in the Philippines.
In the afternoon of December 13, 1968, private respondent with several other persons
went to the Manila International Airport to meet his future son-in-law. In order to get a
better view of the incoming passengers, he and his group proceeded to the viewing
deck or terrace of the airport.
While walking on the terrace, then filled with other people, private respondent slipped
over an elevation about four (4) inches high at the far end of the terrace. As a result,
private respondent fell on his back and broke his thigh bone.
The next day, December 14, 1968, private respondent was operated on for about
three hours.
Private respondent then filed an action for damages based on quasi-delict with the
Court of First Instance of Rizal, Branch VII against petitioner Civil Aeronautics
Administration or CAA as the entity empowered "to administer, operate, manage,
control, maintain and develop the Manila International Airport ... ." [Sec. 32 (24), R.A.
776].
Said claim for damages included, aside from the medical and hospital bills,
consequential damages for the expenses of two lawyers who had to go abroad in
private respondent's stead to finalize certain business transactions and for the
publication of notices announcing the postponement of private respondent's
daughter's wedding which had to be cancelled because of his accident [Record on
Appeal, p. 5].

2. The Court of Appeals gravely erred in finding that the injuries of respondent Ernest
E. Simke were due to petitioner's negligence although there was no substantial
evidence to support such finding; and that the inference that the hump or elevation the
surface of the floor area of the terrace of the fold) MIA building is dangerous just
because said respondent tripped over it is manifestly mistaken circumstances that
justify a review by this Honorable Court of the said finding of fact of respondent
appellate court (Garcia v. Court of Appeals, 33 SCRA 622; Ramos v. CA, 63 SCRA
331.)
3. The Court of Appeals gravely erred in ordering petitioner to pay actual,
consequential, moral and exemplary damages, as well as attorney's fees to
respondent Simke although there was no substantial and competent proof to
support said awards I Rollo, pp. 93-94 1.
I
Invoking the rule that the State cannot be sued without its consent, petitioner contends
that being an agency of the government, it cannot be made a party-defendant in this
case.
This Court has already held otherwise in the case of National Airports Corporation v.
Teodoro, Sr. [91 Phil. 203 (1952)]. Petitioner contends that the said ruling does not
apply in this case because: First, in the Teodoro case, the CAA was sued only in a
substituted capacity, the National Airports Corporation being the original party.
Second, in the Teodoro case, the cause of action was contractual in nature while here,
the cause of action is based on a quasi-delict. Third, there is no specific provision in
Republic Act No. 776, the law governing the CAA, which would justify the conclusion
that petitioner was organized for business and not for governmental purposes. [Rollo,
pp. 94-97].
Such arguments are untenable.
First, the Teodoro case, far from stressing the point that the CAA was only substituted
for the National Airports Corporation, in fact treated the CAA as the real party in
interest when it stated that:

xxx xxx xxx

... To all legal intents and practical purposes, the National Airports Corporation is dead
and the Civil Aeronautics Administration is its heir or legal representative, acting by
the law of its creation upon its own rights and in its own name. The better practice
there should have been to make the Civil Aeronautics Administration the third party
defendant instead of the National Airports Corporation. [National Airports Corp. v.
Teodoro, supra, p. 208.]
xxx xxx xxx
Second, the Teodoro case did not make any qualification or limitation as to whether or
not the CAA's power to sue and be sued applies only to contractual obligations. The
Court in the Teodoro case ruled that Sections 3 and 4 of Executive Order 365 confer
upon the CAA, without any qualification, the power to sue and be sued, albeit only by
implication. Accordingly, this Court's pronouncement that where such power to sue
and be sued has been granted without any qualification, it can include a claim based
on tort or quasi-delict [Rayo v. Court of First Instance of Bulacan, G.R. Nos. 55273-83,
December 19,1981, 1 1 0 SCRA 4561 finds relevance and applicability to the present
case.

Sec. 32. Powers and Duties of the Administrator. Subject to the general control and
supervision of the Department Head, the Administrator shall have among others, the
following powers and duties:
xxx xxx xxx
(24) To administer, operate, manage, control, maintain and develop the Manila
International Airport and all government-owned aerodromes except those controlled or
operated by the Armed Forces of the Philippines including such powers and duties as:
(a) to plan, design, construct, equip, expand, improve, repair or alter aerodromes or
such structures, improvement or air navigation facilities; (b) to enter into, make and
execute contracts of any kind with any person, firm, or public or private corporation or
entity; ... .
(25) To determine, fix, impose, collect and receive landing fees, parking space fees,
royalties on sales or deliveries, direct or indirect, to any aircraft for its use of aviation
gasoline, oil and lubricants, spare parts, accessories and supplies, tools, other
royalties, fees or rentals for the use of any of the property under its management and
control.
xxx xxx xxx

Third, it has already been settled in the Teodoro case that the CAA as an agency is
not immune from suit, it being engaged in functions pertaining to a private entity.
xxx xxx xxx
The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation,
not to maintain a necessary function of government, but to run what is essentially a
business, even if revenues be not its prime objective but rather the promotion of travel
and the convenience of the travelling public. It is engaged in an enterprise which, far
from being the exclusive prerogative of state, may, more than the construction of
public roads, be undertaken by private concerns. [National Airports Corp. v. Teodoro,
supra, p. 207.]
xxx xxx xxx
True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec.
Order 365 (Reorganizing the Civil Aeronautics Administration and Abolishing the
National Airports Corporation). Republic Act No. 776 (Civil Aeronautics Act of the
Philippines), subsequently enacted on June 20, 1952, did not alter the character of the
CAA's objectives under Exec, Order 365. The pertinent provisions cited in the Teodoro
case, particularly Secs. 3 and 4 of Exec. Order 365, which led the Court to consider
the CAA in the category of a private entity were retained substantially in Republic Act
776, Sec. 32 (24) and (25).<re||an1w> Said Act provides:

From the foregoing, it can be seen that the CAA is tasked with private or nongovernmental functions which operate to remove it from the purview of the rule on
State immunity from suit. For the correct rule as set forth in the Tedoro case states:
xxx xxx xxx
Not all government entities, whether corporate or non-corporate, are immune from
suits. Immunity functions suits is determined by the character of the objects for which
the entity was organized. The rule is thus stated in Corpus Juris:
Suits against State agencies with relation to matters in which they have assumed to
act in private or non-governmental capacity, and various suits against certain
corporations created by the state for public purposes, but to engage in matters
partaking more of the nature of ordinary business rather than functions of a
governmental or political character, are not regarded as suits against the state. The
latter is true, although the state may own stock or property of such a corporation for by
engaging in business operations through a corporation, the state divests itself so far of
its sovereign character, and by implication consents to suits against the corporation.
(59 C.J., 313) [National Airport Corporation v. Teodoro, supra, pp. 206-207; Emphasis
supplied.]
This doctrine has been reaffirmed in the recent case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 631, where it was held that
the Philippine National Railways, although owned and operated by the government,

was not immune from suit as it does not exercise sovereign but purely proprietary and
business functions. Accordingly, as the CAA was created to undertake the
management of airport operations which primarily involve proprietary functions, it
cannot avail of the immunity from suit accorded to government agencies performing
strictly governmental functions.
II
Petitioner tries to escape liability on the ground that there was no basis for a finding of
negligence. There can be no negligence on its part, it alleged, because the elevation
in question "had a legitimate purpose for being on the terrace and was never intended
to trip down people and injure them. It was there for no other purpose but to drain
water on the floor area of the terrace" [Rollo, P. 99].
To determine whether or not the construction of the elevation was done in a negligent
manner, the trial court conducted an ocular inspection of the premises.
xxx xxx xxx
... This Court after its ocular inspection found the elevation shown
in Exhs. A or 6-A where plaintiff slipped to be a step, a dangerous
sliding step, and the proximate cause of plaintiffs injury...
xxx xxx xxx
This Court during its ocular inspection also observed the
dangerous and defective condition of the open terrace which has
remained unrepaired through the years. It has observed the lack
of maintenance and upkeep of the MIA terrace, typical of many
government buildings and offices. Aside from the litter allowed to
accumulate in the terrace, pot holes cause by missing tiles
remained unrepaired and unattented. The several elevations
shown in the exhibits presented were verified by this Court during
the ocular inspection it undertook. Among these elevations is the
one (Exh. A) where plaintiff slipped. This Court also observed the
other hazard, the slanting or sliding step (Exh. B) as one passes
the entrance door leading to the terrace [Record on Appeal, U.S.,
pp. 56 and 59; Emphasis supplied.]
The Court of Appeals further noted that:
The inclination itself is an architectural anomaly for as stated by the said witness, it is
neither a ramp because a ramp is an inclined surface in such a way that it will prevent
people or pedestrians from sliding. But if, it is a step then it will not serve its purpose,
for pedestrian purposes. (tsn, p. 35, Id.) [rollo, p. 29.]

These factual findings are binding and conclusive upon this Court. Hence, the CAA
cannot disclaim its liability for the negligent construction of the elevation since under
Republic Act No. 776, it was charged with the duty of planning, designing,
constructing, equipping, expanding, improving, repairing or altering aerodromes or
such structures, improvements or air navigation facilities [Section 32, supra, R.A. 776].
In the discharge of this obligation, the CAA is duty-bound to exercise due diligence in
overseeing the construction and maintenance of the viewing deck or terrace of the
airport.
It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or
negligence of the obligor consists in the omission of that diligence which is required by
the nature of the obligation and corresponds with the circumstances of the person, of
the time and of the place." Here, the obligation of the CAA in maintaining the viewing
deck, a facility open to the public, requires that CAA insure the safety of the viewers
using it. As these people come to the viewing deck to watch the planes and
passengers, their tendency would be to look to where the planes and the incoming
passengers are and not to look down on the floor or pavement of the viewing deck.
The CAA should have thus made sure that no dangerous obstructions or elevations
exist on the floor of the deck to prevent any undue harm to the public.
The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of
the Civil Code which provides that "(w)hoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done... As
the CAA knew of the existence of the dangerous elevation which it claims though, was
made precisely in accordance with the plans and specifications of the building for
proper drainage of the open terrace [See Record on Appeal, pp. 13 and 57; Rollo, p.
391, its failure to have it repaired or altered in order to eliminate the existing hazard
constitutes such negligence as to warrant a finding of liability based on quasi-delict
upon CAA.
The Court finds the contention that private respondent was, at the very least, guilty of
contributory negligence, thus reducing the damages that plaintiff may recover,
unmeritorious. Contributory negligence under Article 2179 of the Civil Code
contemplates a negligent act or omission on the part of the plaintiff, which although
not the proximate cause of his injury, contributed to his own damage, the proximate
cause of the plaintiffs own injury being the defendant's lack of due care. In the instant
case, no contributory negligence can be imputed to the private respondent,
considering the following test formulated in the early case of Picart v. Smith, 37 Phil.
809 (1918):
The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent man 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 the 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.

o,rant of the power to sue and be sued upon it necessarily implies that it can be held
answerable for its tortious acts or any wrongful act for that matter.

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 be here
of much value but this much can be profitably said: Reasonable men-overn 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 the ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held
to exist.... [Picart v. Smith, supra, p. 813; Emphasis supplied.]

With respect to actual or compensatory damages, the law mandates that the same be
proven.

The private respondent, who was the plaintiff in the case before the lower court, could
not have reasonably foreseen the harm that would befall him, considering the
attendant factual circumstances. Even if the private respondent had been looking
where he was going, the step in question could not easily be noticed because of its
construction. As the trial court found:
In connection with the incident testified to, a sketch, Exhibit O, shows a section of the
floorings oil which plaintiff had tripped, This sketch reveals two pavements adjoining
each other, one being elevated by four and one-fourth inches than the other. From the
architectural standpoint the higher, pavement is a step. However, unlike a step
commonly seen around, the edge of the elevated pavement slanted outward as one
walks to one interior of the terrace. The length of the inclination between the edges of
the two pavements is three inches. Obviously, plaintiff had stepped on the inclination
because had his foot landed on the lower pavement he would not have lost his
balance. The same sketch shows that both pavements including the inclined portion
are tiled in red cement, and as shown by the photograph Exhibit A, the lines of the
tilings are continuous. It would therefore be difficult for a pedestrian to see the
inclination especially where there are plenty of persons in the terrace as was the
situation when plaintiff fell down. There was no warning sign to direct one's attention
to the change in the elevation of the floorings. [Rollo, pp. 2829.]

Art. 2199. Except as provided by law or by stipulation, one are entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved.
Such compensation is referred to as actual on compensatory damages [New Civil
Code].
Private respondent claims P15,589.55 representing medical and hospitalization bills.
This Court finds the same to have been duly proven through the testimony of Dr.
Ambrosio Tangco, the physician who attended to private respondent (Rollo, p. 26) and
who Identified Exh. "H" which was his bill for professional services [Rollo, p. 31].
Concerning the P20,200.00 alleged to have been spent for other expenses such as
the transportation of the two lawyers who had to represent private respondent abroad
and the publication of the postponement notices of the wedding, the Court holds that
the same had also been duly proven. Private respondent had adequately shown the
existence of such losses and the amount thereof in the testimonies before the trial
court [CA decision, p. 81. At any rate, the findings of the Court of Appeals with respect
to this are findings of facts [One Heart Sporting Club, Inc. v. Court of Appeals, G.R.
Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161 which, as had been held time and
again, are, as a general rule, conclusive before this Court [Sese v. Intermediate
Appellate Court, G.R. No. 66186, July 31, 1987,152 SCRA 585].
With respect to the P30,000.00 awarded as moral damages, the Court holds private
respondent entitled thereto because of the physical suffering and physical injuries
caused by the negligence of the CAA [Arts. 2217 and 2219 (2), New Civil Code].
With respect to the award of exemplary damages, the Civil Code explicitly, states:
Art. 2229. Exemplary or corrective damages, are imposed, by way of example or
correction for the public good, in addition to the moral, liquidated or compensatory

III
Finally, petitioner appeals to this Court the award of damages to private respondent.
The liability of CAA to answer for damages, whether actual, moral or exemplary,
cannot be seriously doubted in view of one conferment of the power to sue and be
sued upon it, which, as held in the case of Rayo v. Court of First Instance, supra,
includes liability on a claim for quasi-dilict. In the aforestated case, the liability of the
National Power Corporation to answer for damages resulting from its act of sudden,
precipitate and simultaneous opening of the Angat Dam, which caused the death of
several residents of the area and the destruction of properties, was upheld since the

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted
with gross negligence.
Gross negligence which, according to the Court, is equivalent to the term "notorious
negligence" and consists in the failure to exercise even slight care [Caunan v.
Compania General de Tabacos, 56 Phil. 542 (1932)] can be attributed to the CAA for
its failure to remedy the dangerous condition of the questioned elevation or to even
post a warning sign directing the attention of the viewers to the change in the elevation
of the floorings notwithstanding its knowledge of the hazard posed by such elevation
[Rollo, pp. 28-29; Record oil Appeal, p. 57]. The wanton disregard by the CAA of the

safety of the people using the viewing deck, who are charged an admission fee,
including the petitioner who paid the entrance fees to get inside the vantage place [CA
decision, p. 2; Rollo, p. 25] and are, therefore, entitled to expect a facility that is
properly and safely maintained justifies the award of exemplary damages against
the CAA, as a deterrent and by way of example or correction for the public good. The
award of P40,000.00 by the trial court as exemplary damages appropriately
underscores the point that as an entity changed with providing service to the public,
the CAA. like all other entities serving the public. has the obligation to provide the
public with reasonably safe service.
Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1)
of the Civil Code, the same may be awarded whenever exemplary damages are
awarded, as in this case, and,at any rate, under Art. 2208 (11), the Court has the
discretion to grant the same when it is just and equitable.
However, since the Manila International Airport Authority (MIAA) has taken over the
management and operations of the Manila International Airport [renamed Ninoy
Aquino International Airport under Republic Act No. 6639] pursuant to Executive Order
No. 778 as amended by executive Orders Nos. 903 (1983), 909 (1983) and 298
(1987) and under Section 24 of the said Exec. Order 778, the MIAA has assumed all
the debts, liabilities and obligations of the now defunct Civil Aeronautics Administration
(CAA), the liabilities of the CAA have now been transferred to the MIAA.
WHEREFORE, finding no reversible error, the Petition for review on certiorari is
DENIED and the decision of the Court of Appeals in CA-G.R. No. 51172-R is
AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.