Torts 5

MERITT VS GOVERNMENT ............................................ 188

Table of Contents
KRAMER VS CA ..................................................................... 2

ROSETE VS AUDITOR GENERAL ................................... 193

FONTANILLA VS MALIAMAN ......................................... 195

BATACLAN VS MEDINA ...................................................... 5

MERCURY DRUG VS BAKING ............................................. 8
PILIPINAS BANK VS CA ..................................................... 11
FAR EASTERN VS CA ......................................................... 13
RUKS KONSULT AND CONSTRUCTION VS ADWORLD
SIGN .................................................................................... 31
MANILA ELECTRIC VS REMOQUILLO............................ 34
GABETO VS ARANETA ...................................................... 37
ANECO VS BALEN ............................................................. 39
DY TEBAN VS JOSE CHING .............................................. 46
GLAN VS IAC ....................................................................... 54
CANLAS VS CA .................................................................... 59
LAPANDAY VS ANGALA..................................................... 64
PHILIPPINE BANK OF COMMERCE VS CA ..................... 67
CONSOLIDATED BANK VS CA .......................................... 72
BUSTAMANTE VS CA ......................................................... 78
PANTRANCO VS BAESA..................................................... 82
ENGADA VS CA ................................................................... 87
TAMARGO VS CA ................................................................ 94
PALISOC VS BRILLANTES ................................................. 97
AMADORA VS CA .............................................................. 101
SALVOSA VS IAC ............................................................... 106
ST. MARYS ACADEMY VS CAPITANOS .......................... 108
ST. JOSEPH'S COLLEGE VS MIRANDA .......................... 111
PHIL RABIT VS PHIL AMERICAN .................................. 116
CASTILEX VS VASQUEZ .................................................. 118
SPS JAYME VS APOSTOL .................................................. 122
PROFESSIONAL SERVICES VS AGENDA ....................... 126
CASUMPANG VS CORTEJO ............................................. 131
MENDOZA VS SPS GOMEZ.............................................. 147
R TRANSPORT CORP VS YU ............................................ 154
FILAMER VS IAC .............................................................. 158
NPC VS CA ......................................................................... 161
VALENZUELA VS CA........................................................ 164
LAMPESA VS DE VERA .................................................... 171
MERCURY DRUG VS HUANG.......................................... 173
CHILD LEARNING CENTER VS TAGARIO .................... 178
MENDOZA VS SPS GOMEZ.............................................. 181

1|P a g e

Torts 5

ERNESTO KRAMER, JR. AND MARTA KRAMER, PETITIONERS, VS.

HON. COURT OF APPEALS AND TRANS-ASIA SHIPPING LINES, INC.,
RESPONDENTS.

four years from the date when their cause of action accrued, i. e., from
April 8, 1976 when the maritime collision took place, and that accordingly,
the Complaint filed on May 30, 1985 was instituted beyond the four-year
prescriptive period.

DECISION
For their part, the petitioners contended that maritime collisions have
GANCAYCO, J.:

peculiarities and characteristics which only persons with special skill,

training and experience like the members of the Board of Marine Inquiry

The principal issue in this Petition for Review is whether or not a Complaint

can properly analyze and resolve. The petitioners argued that the running

for damages instituted by the petitioners against the private respondent

of the prescriptive period was tolled by the filing of the marine protest and

arising from a marine collision is barred by the statute of limitations.

that their cause of action accrued only on April 29, 1982, the date when the
Decision ascertaining the negligence of the crew of the M/V Asia

The record of the case discloses that in the early morning of April 8, 1976,

Philippines had become final, and that the four-year prescriptive period

the F/B Marjolea, a fishing boat owned by the petitioners Ernesto Kramer,

under Article 1146 of the Civil Code should be computed from the said

Jr. and Marta Kramer, was navigating its way from Marinduque to Manila.

date. The petitioners concluded that inasmuch as the Complaint was filed

Somewhere near Maricabon Island and Cape Santiago, the boat figured in

on May 30, 1985, the same was seasonably filed.

a collision with an inter-island vessel, the M/V Asia Philippines owned by

the private respondent Trans-Asia Shipping Lines, Inc. As a consequence

In an Order dated September 25, 1986,[4] the trial court denied the Motion

of the collision, the F/B Marjolea sank, taking with it its fish catch.

filed by the private respondent. The trial court observed that in ascertaining
negligence relating to a maritime collision, there is a need to rely on highly

After the mishap, the captains of both vessels filed their respective marine

technical aspects attendant to such collision, and that the Board of Marine

protests with the Board of Marine Inquiry of the Philippine Coast Guard.

Inquiry was constituted pursuant to the Philippine Merchant Marine Rules

The Board conducted an investigation for the purpose of determining the

and Regulations, which took effect on January 1, 1975 by virtue of Letter of

proximate cause of the maritime collision.

Instructions No. 208 issued on August 12, 1974 by then President

Ferdinand E. Marcos, precisely to answer the need. The trial court went on

On October 19, 1981, the Board concluded that the loss of the F/B

to say that the four-year prescriptive period provided in Article 1146 of the

Marjolea and its fish catch was attributable to the negligence of the

Civil Code should begin to run only from April 29, 1982, the date when the

employees of the private respondent who were on board the M/V Asia

negligence of the crew of the M/V Asia Philippines had been finally

Philippines during the collision. The findings made by the Board served as

ascertained. The pertinent portions of the Order of the trial court are as

the basis of a subsequent Decision of the Commandant of the Philippine

follows --

Coast Guard dated April 29, 1982 wherein the second mate of the M/V
Asia Philippines was suspended from pursuing his profession as a marine
officer.

[1]

"Considering that the action concerns an incident involving a collision at

sea of two vehicles and to determine negligence for that incident there is
an absolute need to rely on highly technical aspects attendant to such

On May 30, 1985, the petitioners instituted a Complaint for damages

collisions. It is obviously to answer such a need that the Marine Board of

against the private respondent before Branch 117 of the Regional Trial

Inquiry (sic) was constituted pursuant to the Philippine Merchant Marine

Court in Pasay City.[2] The suit was docketed as Civil Case No. 2907-P.

Rules and Regulations which became effective January 1, 1975 under

Letter of Instruction(s) No. 208 dated August 12, 1974. The relevant

The private respondent filed a Motion seeking the dismissal of the

section of that law (Art. XVI /b/ provided as follow(s):

Complaint on the ground of prescription. He argued that under Article 1146

of the Civil Code,[3] the prescriptive period for instituting a Complaint for

'1. Board of Marine Inquiry (BMI). -- Shall

damages arising from a quasi-delict like a maritime collision is four years.

have the jurisdiction to investigate marine

He maintained that the petitioners should have filed their Complaint within

accidents or casualties relative to the

liability of shipowners and officers,
exclusive jurisdiction to investigate
cases/complaints against the marine

2|P a g e

Torts 5

officers; and to review all proceedings or

had already definitely ripened at the onset of the collision. For this reason,

investigation conducted by the Special

he (sic) could cite the negligence on the part of the personnel of the

Boards of Marine Inquiry.

petitioner to exercise due care and lack of (sic) diligence to prevent the
collision that resulted in the total loss of their xxx boat.

2. Special Board of Marine Inquiry. -- Shall

have original jurisdiction to investigate
marine casualties and disasters which
occur or are committed within the limits of
the Coast Guard District concerned or
those referred by the Commandant.'

"We can only extend scant consideration to respondent judge's reasoning

that in view of the nature of the marine collision that allegedly involves
highly technical aspects, the running of the prescriptive period should only
commence from the finality of the investigation conducted by the Marine
Board of Inquiry (sic) and the decision of the Commandant, Philippine
Coast Guard, who has original jurisdiction over the mishap. For one, while
it is true that the findings and recommendation of the Board and the

The Court finds reason in the argument of the plaintiff that marine incidents
have those peculiarities which only persons of special skill, training and
exposure can rightfully decipher and resolve on the matter of the
negligence and liabilities of parties involved and inasmuch as the report of
the Board of Inquiry (sic) admittedly came out only on April 29, 1982, the
prescriptive period provided xxx under Art. 1146 of the Civil Code should
begin to run only from that date. The complaint was filed with this Court on
May 10, 1985, hence the statute of limitations can not constitute a bar to
the filing of this case."[5]

The private respondent elevated the case to the Court of Appeals by way
of a special civil action for certiorari and prohibition, alleging therein that
the trial court committed a grave abuse of discretion in refusing to dismiss
the Complaint filed by the petitioners. The case was assigned to the
Second Division of the appellate court and was docketed as Case No. CAG.R. SP No. 12032.[6]
In a Decision dated November 27, 1987,[7] and clarified in a Resolution
dated January 12, 1988,[8] the Court of Appeals granted the Petition filed by
the private respondent and ordered the trial court to dismiss the Complaint.
The pertinent portions of the Decision of the appellate court are as follows -

decision of the Commandant may be helpful to the court in ascertaining

which of the parties are at fault, still the former (court) is not bound by said
findings and decision. Indeed, the same findings and decision could be
entirely or partially admitted, modified, amended, or disregarded by the
court according to its lights and judicial discretion. For another, if the
accrual of a cause of action will be made to depend on the action to be
taken by certain government agencies, then necessarily, the tolling of the
prescriptive period would hinge upon the discretion of such agencies. Said
alternative it is easy to foresee would be fraught with hazards. Their
investigations might be delayed and lag, and then witnesses in the
meantime might not be available or disappear, or certain documents may
no longer be available or might be mislaid. xxx."[9]

The petitioners filed a Motion for the reconsideration of the said Decision
but the same was denied by the Court of Appeals in a Resolution dated
May 27, 1988.[10]

Hence, the instant Petition wherein the arguments raised by the petitioner
before the trial court are reiterated.[11] In addition thereto, the petitioner
contends that the Decision of the Court of Appeals runs against the
pronouncement of this Court in Vasquez v. Court of Appeals.[12]

The private respondent filed its Comment on the Petition seeking therein
"It is clear that the cause of action of private respondent (the herein
petitioners Ernesto Kramer, Jr. and Marta Kramer) accrued from the
occurrence of the mishap because that is the precise time when damages
were inflicted upon and sustained by the aggrieved party and from which
relief from the court is presently sought. Private respondents should have

the dismissal of the same.[13] It is also contended by the private respondent

that the ruling of the Court in Vasquez is not applicable to the case at bar
because the said case involves a maritime collision attributable to a
fortuitous event. In a subsequent pleading, the private respondent argues
that the Philippine Merchant Marine Rules and Regulations cannot have

immediately instituted a complaint for damages based on a quasi-delict

within four years from the said marine incident because its cause of action

3|P a g e

Torts 5

the effect of repealing the provisions of the Civil Code on prescription of

[14]

actions.

Thus, the respondent court correctly found that the action of petitioner has
prescribed. The collision occurred on April 8, 1976. The complaint for
damages was filed in court only on May 30, 1985, way beyond the four (4)

On September 19, 1988, the Court resolved to give due course to the
[15]

petition.

year prescriptive period.

After the parties filed their respective memoranda, the case was

deemed submitted for decision.

WHEREFORE, the petition is dismissed. No costs.

The petition is devoid of merit. Under Article 1146 of the Civil Code, an

SO ORDERED.

action based upon a quasi-delict must be instituted within four (4) years.
The prescriptive period begins from the day the quasi-delict is committed.
In Paulan vs. Sarabia,[16] this Court ruled that in an action for damages
arising from the collision of two (2) trucks, the action being based on a
quasi-delict, the four (4) year prescriptive period must be counted from the
day of the collision.
In Espaol vs. Chairman, Philippine Veterans Administration, [17] this Court
held as follows -

"The right of action accrues when there exists a cause of action, which
consists of 3 elements, namely: a) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; b) an
obligation on the part of defendant to respect such right; and c) an act or
omission on the part of such defendant violative of the right of the plaintiff
xxx. It is only when the last element occurs or takes place that it can be
said in law that a cause of action has arisen xxx."

From the foregoing ruling, it is clear that the prescriptive period must be
counted when the last element occurs or takes place, that is, the time of
the commission of an act or omission violative of the right of the plaintiff,
which is the time when the cause of action arises.

It is therefore clear that in this action for damages arising from the collision
of two (2) vessels the four (4) year prescriptive period must be counted
from the day of the collision. The aggrieved party need not wait for a
determination by an administrative body like a Board of Marine Inquiry, that
the collision was caused by the fault or negligence of the other party before
he can file an action for damages. The ruling in Vasquez does not apply in
this case. Immediately after the collision the aggrieved party can seek relief
from the courts by alleging such negligence or fault of the owners, agents
or personnel of the other vessel.

4|P a g e

Torts 5

SALUD VILLANUEVA VDA. DE BATACLAN AND THE MINORS

NORMA, LUZVIMINDA, ELENITA, OSCAR AND ALFREDO BATACLAN,

behalf of her five minor children, brought the present suit to recover from
Mariano Medina compensatory, moral, and exemplary damages and

REPRESENTED BY THEIR NATURAL GUARDIAN, SALUD

attorney's fees in the total amount of P87,150. After trial, the Court of First

VILLANUEVA VDA. DE BATACLAN, PLAINTIFFS AND APPELLANTS

Instance of Cavite awarded P1,000 to the plaintiffs, plus P600 as attorney's

VS. MARIANO MEDINA, DEFENDANT AND APPELLANT.

fee, plus P100, the value of the merchandise being carried by Bataclan to
Pasay City for sale and which was lost in the fire. The plaintiffs and the

DECISION

defendants appealed the decision to the Court of Appeals, but the latter
court endorsed the appeal to us because of the value involved in the claim

MONTEMAYOR, J.:

in the complaint.

Shortly after midnight, on September 13, 1952, bus No. 30 of the Medina

Our New Civil Code amply provides for the responsibility of a common

Transportation, operated by its owner, defendant Mariano Medina, under a

carrier to its passengers and their goods. For purposes of reference, we

certificate of public convenience, left the town of Amadeo, Cavite, on its

are reproducing the pertinent codal provisions:

way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor.
Among the passengers were Juan Bataclan, seated beside and to the right
of the driver, Felipe Lara, seated to the right of Bataclan, another

"Art. 1733. Common carriers, from the nature of their business and for

passenger apparently from the Visayan Islands whom the witnesses just

reasons of public policy, are bound to observe extraordinary diligence in

called Visaya, apparently not knowing his name, seated on the left side of

the vigilance over the goods and for the safety of the passengers

the driver, and a woman named Natalia Villanueva, seated just behind the

transported by them, according to all the circumstances of each case.

four last mentioned. At about 2:00 o'clock that same morning, while the bus
was running within the jurisdiction of Imus, Cavite, one of the front tires
burst and the vehicle began to zig-zag until it fell into a canal or ditch on
the right side of the road and turned turtle. Some of the passengers

Such extraordinary diligence in the vigilance over the goods Is further

managed to leave the bus the best way they could, others had to be

expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the

helped or pulled out, while the three passengers seated beside the driver,

extraordinary diligence for the safety of the passengers is further set forth

named Bataclan, Lara and the Visayan and the woman behind them

in articles 1755 and 1756,"

named Natalia Villanueva, could not get out of the overturned bus. Some of
the passengers, after they had clambered up to the road, heard groans and
moans from inside the bus, particularly, shouts for help from Bataclan and
Lara, who said that they could not get out of the bus. There is nothing in
the evidence to show whether or not the passengers already free from the
wreck, including the driver and the conductor, made any attempt to pull out
or extricate and rescue the four passengers trapped inside the vehicle, but

"Art. 1755. A common carrier is bound to carry the passengers safely as

far as human care and foresight can provide, using the , utmost
diligence of very cautious persons, with a due regard for all the
circumstances."

calls or shouts for help were made to the houses in the neighborhood. After
half an hour, came about ten men, one of them carrying a lighted torch
made - of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approached the overturned bus, and almost
immediately, a tierce fire started, burning and all but consuming the bus,
including the four passengers trapped inside it. It would appear that as the
bus overturned, gasoline began to leak and escape from the gasoline tank

"Art. 1756. In case of death of or injuries to pasengers, common carriers

are presumed to have been at fault or to have acted negligently, unless
they prove that they observed extraordinary diligence as prescribed in
articles 1733 and 1755."

on the side of the chassis, spreading over and permeating the body of the
bus and the ground under and around it, and that the lighted torch brought
by one of the men who answered the call for help sot it on fire.

"Art. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or wilful acts of the former's

That same day, the charred bodies of the four doomed passengers inside
the bus were removed and duly identified, specially that of Juan Bataclan.

employees, although such employees may have acted beyond the scope
of their authority or in violation of the orders of the common carriers.

By reason of his death, his widow, Salud Villanueva, in her name and in
5|P a g e

Torts 5

continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effectingThis liability of the common carriers does not cease upon proof that they

the injury as a natural and probable result of the cause which first acted,

exercised all the diligence of a good father of a family in the selection and

under such circumstances that the person responsible for the first event

supervision of their employees."

should, as an ordinarily prudent and intelligent person, have reasonable

ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom."

"Art. 1763. A common carrier is responsible for injuries suffered by a

It may be that ordinarily, when a passenger bus overturns, and pins down a

passenger on account of the wilful acts or negligence of other passengers

passenger, merely causing him physical injuries, if through some event,

or of strangers, if the common carrier's employees through the exercise of

unexpected and extraordinary, the overturned bus is set on fire, say, by

the diligence of a good father of a family could have prevented or stopped

lightning, or if some highwaymen after looting the vehicle sets it on fire, and

the act or omission,"

the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the

We agree with the trial court that the case involves a breach of .contract of

vehicle. But in the present case and under the circumstances obtaining' in

transportation for hire, the Medina Transportation having undertaken to

the same, we do not hesitate to hold that the proximate cause of the death

carry Bataclan safely to his destination, Pasay City, We also agree with the

of Bataclan was the overturning of the bus, this for the reason that when

trial court that there was negligence on the part of the defendant, through

the vehicle turned not only on its, side but completely on its back, the

his agent, the driver Saylon. There is evidence to show that at the time of

leaking of the gasoline from the tank was not unnatural or unexpected; that

the blow out, the bus was speeding, as testified to by one of the

the coming of the men with a lighted torch was in response to the call for

passengers, and as shown by the fact that according to the testimony of

help, made not only by the passengers, but most probably, by the driver

the witnesses, including that of the defense, from the point where one of

and the conductor themselves, and that because it was very dark (about

the front tires burst up to the canal where the bus overturned after

2:30 in the morning), the rescuers had to carry a light with them; and

zigzagging, there was a distance of about 150 meters. The chauffeur, after

coming as they did from a rural area where lanterns and flashlights were

the blow-out, must have applied the, brakes in order to stop the bus, but

not available, they had to use a torch, the most handy and available; and

because of the velocity at which the bus must have been running", its

what was more natural than that said rescuers should innocently approach

momentum carried it over a distance of 150 meters before it fell into the

the overturned vehicle to extend the aid and effect the rescue requested

canal and turned turtle.

from them. In other words, the coming of the men with the torch was to be
expected and was a natural sequence of the overturning of the bus, the

There is no question that under the circumstances, the defendant carrier is

liable. The only question is to what degree. The trial court was of the
opinion that the proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned the bus, including
himself and his co-passengers who were unable, to leave it; that at the
time the fire started, Bataclan, though he must have suffered physical
injuries, perhaps serious, was still alive, and so damages were awarded,
not for his death, but for the physical injuries suffered by him. We disagree,
A satisfactory definition of proximate cause is found in Volume 38, pages
695-696 of American Jurisprudence, cited by plaintiffs-appellants in their
brief.

It is as follows:

trapping of some of its passengers and the call for outside help. What is
more, the burning of the bus can also in part be attributed to the negligence
of the carrier, through its driver and its conductor. According to the
witnesses, the driver and the conductor were on the road walking back and
forth. They, or at least, the driver should and must have known that in the
position in which the overturned bus was, gasoline could and must have
leaked from the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, specially over a large
area, can be smelt and detected even from a distance, and yet neither the
driver nor the conductor would appear to have cautioned or taken steps to
warn the rescuers not to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come under the codal
provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

"* * * 'that cause, which, in natural and continuous sequence, unbroken by

any efficient intervening cause, produces the injury, and without which the
result would not have occurred.' And more comprehensively, 'the proximate
legal cause is that acting first and producing the injury, either immediately
or by setting other events in motion, all constituting a natural and

As regards the damages to which plaintiffs are entitled, considering the

earning capacity of the deceased, as well as the other elements entering
into a damage award, we are satisfied that the amount of Six Thousand
(P6,000) Pesos would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs
6|P a g e

Torts 5

are entitled to attorney's fees, and assessing the legal services rendered
by plaintiffs' attorneys not only in the trial court, but also in the course of
the appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at Eight Hundred (P800) Pesos. The
award made by the trial court of One Hundred (P100) Pesos for the loss of
the merchandise carried by the deceased in the bus, is adequate and will
not be disturbed.

There is one phase of this ease which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she
was visited by the defendant Mariano Medina, and in the course of his
visit, she overheard him speaking to one of his bus inspectors, telling said
inspector to have the fires, of the bus changed immediately because they
were already old, and that as a matter of fact, he had been telling the driver
to change the said tires, but that the driver did not follow his instructions.
If this be true, it goes to prove that the driver had not been diligent and had
not taken the necessary precautions to insure the safety of his
passengers.

Had he changed the tires, specially those in front, "with new

ones, as he had been instructed to do, probably, despite his speeding, as

we have already stated, the blow out would not have occurred.

All in all,

there is reason to believe that the driver operated and drove his vehicle
negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and
yet the criminal case against him, on motion of the fiscal and with his
consent, "was provisionally dismissed, because according to the fiscal, the
"witnesses on whose testimony he was banking to support the complaint,
either failed to appear or were reluctant to testify.

But the record of the

case before us shows that several witnesses, passengers in that bus,

"willingly and unhesitatingly testified in court to the effect that the said
driver was negligent.

In the public interest, the prosecution of said erring

driver should be pursued, this, not only as a matter of justice, but for the
promotion of the safety of passengers on public utility buses.

Let a copy

of this decision be furnished the Department of Justice and the Provincial

Fiscal of Cavite.

In view of the foregoing, with the modification thai the damages awarded
by the trial court are increased from One Thousand (P1,000) Pesos to Six
Thousand (P6,000) Pesos, and from Six Hundred Pesos to Eight Hundred
(P800) Pesos, for the death of Bataclan and for attorney's fees,
respectively, the decision appealed from is hereby affirmed, with costs.

7|P a g e

Torts 5

MERCURY DRUG CORPORATION, PETITIONER, VS. SEBASTIAN M.

BAKING, RESPONDENT.

After hearing, the trial court rendered its Decision dated March 18, 1997 in
favor of respondent, thus:
WHEREFORE, premises considered, by preponderance of evidence, the

DECISION

Court hereby renders judgment in favor of the plaintiff and against the
defendant ordering the latter to pay mitigated damages as follows:

SANDOVAL-GUTIERREZ, J.:
1.

P250,000.00 as moral damages;

2.

P20,000.00 as attorney's fees and litigation expenses;

3.

plus % of the cost of the suit.

[1]

For our resolution is the instant Petition for Review on Certiorari assailing
the Decision[2] dated May 30, 2002 and Resolution dated November 5,
2002 of the Court of Appeals in CA-G.R. CV No. 57435, entitled "Sebastian
M. Baking, plaintiff-appellee, versus Mercury Drug Co. Inc., defendantappellant."
SO ORDERED.
The facts are:

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC
judgment. Petitioner filed a motion for reconsideration but it was denied in

On November 25, 1993, Sebastian M. Baking, respondent, went to the

a Resolution dated November 5, 2002.

clinic of Dr. Cesar Sy for a medical check-up. On the following day, after
undergoing an ECG, blood, and hematology examinations and urinalysis,

Hence, this petition.

Dr. Sy found that respondent's blood sugar and triglyceride were above
normal levels. Dr. Sy then gave respondent two medical prescriptions -

Petitioner contends that the Decision of the Court of Appeals is not in

Diamicron for his blood sugar and Benalize tablets for his triglyceride.

accord with law or prevailing jurisprudence.

Respondent then proceeded to petitioner Mercury Drug Corporation

Respondent, on the other hand, maintains that the petition lacks merit and,

(Alabang Branch) to buy the prescribed medicines. However, the saleslady

therefore, should be denied.

misread the prescription for Diamicron as a prescription for Dormicum.

Thus, what was sold to respondent was Dormicum, a potent sleeping

The issues for our resolution are:

tablet.
1.

Whether petitioner was negligent, and if so, whether

Unaware that what was given to him was the wrong medicine, respondent

such negligence was the proximate cause of

took one pill of Dormicum on three consecutive days - November 6, 1993

respondent's accident; and

at 9:00 p.m., November 7 at 6:00 a.m., and November 8 at 7:30 a.m.

2.

Whether the award of moral damages, attorney's fees,

litigation expenses, and cost of the suit is justified.

On November 8 or on the third day he took the medicine, respondent

figured in a vehicular accident. The car he was driving collided with the
car of one Josie Peralta. Respondent fell asleep while driving. He could

Article 2176 of the New Civil Code provides:

not remember anything about the collision nor felt its impact.

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

Suspecting that the tablet he took may have a bearing on his physical and

or negligence, if there is no pre-existing contractual relation between the

mental state at the time of the collision, respondent returned to Dr. Sy's

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

clinic. Upon being shown the medicine, Dr. Sy was shocked to find that

Chapter.

what was sold to respondent was Dormicum, instead of the prescribed

To sustain a claim based on the above provision, the following requisites

Diamicron.

must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of
the defendant; and, (c) connection of cause and effect between the fault or

Thus, on April 14, 1994, respondent filed with the Regional Trial Court

negligence of the defendant and the damage incurred by the plaintiff.[3]

(RTC), Branch 80 of Quezon City a complaint for damages against

petitioner, docketed as Civil Case No. Q-94-20193.

There is no dispute that respondent suffered damages.

It is generally recognized that the drugstore business is imbued with public

8|P a g e

Torts 5

interest. The health and safety of the people will be put into jeopardy if
drugstore employees will not exercise the highest degree of care and

xxx

diligence in selling medicines. Inasmuch as the matter of negligence is a

question of fact, we defer to the findings of the trial court affirmed by the

The responsibility treated of in this article shall cease when the persons

Court of Appeals.

herein mentioned prove that they observed the diligence of a good father
of a family to prevent damage.

Obviously, petitioner's employee was grossly negligent in selling to

It is thus clear that the employer of a negligent employee is liable for the

respondent Dormicum, instead of the prescribed Diamicron. Considering

damages caused by the latter. When an injury is caused by the

that a fatal mistake could be a matter of life and death for a buying patient,

negligence of an employee, there instantly arises a presumption of the law

the said employee should have been very cautious in dispensing

that there has been negligence on the part of the employer, either in the

medicines. She should have verified whether the medicine she gave

selection of his employee or in the supervision over him, after such

respondent was indeed the one prescribed by his physician. The care

selection. The presumption, however, may be rebutted by a clear showing

required must be commensurate with the danger involved, and the skill

on the part of the employer that he has exercised the care and diligence of

employed must correspond with the superior knowledge of the business

a good father of a family in the selection and supervision of his employee. [6]

which the law demands.

[4]

Here, petitioner's failure to prove that it exercised the due diligence of a

good father of a family in the selection and supervision of its employee will

Petitioner contends that the proximate cause of the accident was

make it solidarily liable for damages caused by the latter.

respondent's negligence in driving his car.

As regards the award of moral damages, we hold the same to be in order.
We disagree.

Moral damages may be awarded whenever the defendant's wrongful act

or omission is the proximate cause of the plaintiff's physical suffering,

Proximate cause is defined as any cause that produces injury in a natural

mental anguish, fright, serious anxiety, besmirched reputation, wounded

and continuous sequence, unbroken by any efficient intervening cause,

feelings, moral shock, social humiliation, and similar injury in the cases

such that the result would not have occurred otherwise. Proximate cause

specified or analogous to those provided in Article 2219 of the Civil Code. [7]

is determined from the facts of each case, upon a combined consideration

of logic, common sense, policy, and precedent.[5]

Respondent has adequately established the factual basis for the award of
moral damages when he testified that he suffered mental anguish and

Here, the vehicular accident could not have occurred had petitioner's

anxiety as a result of the accident caused by the negligence of petitioner's

employee been

employee.

careful in reading Dr. Sy's prescription. Without the

potent effects of Dormicum, a sleeping tablet, it was unlikely that

respondent would fall asleep while driving his car, resulting in a collision.

There is no hard-and-fast rule in determining what would be a fair and

reasonable amount of moral damages, since each case must be governed

Complementing Article 2176 is Article 2180 of the same Code which

by its own peculiar facts. However, it must be commensurate to the loss

states:

or injury suffered.[8] Taking into consideration the attending circumstances

ART. 2180. The obligation imposed by Article 2176 is demandable not only

here, we are convinced that the amount awarded by the trial court is

for one's own acts or omissions, but also for those of persons for whom

exorbitant. Thus, we reduce the amount of moral damages from

one is responsible.

P250,000.00 to P50,000.00 only.

xxx

In addition, we also deem it necessary to award exemplary damages.

Article 2229 allows the grant of exemplary damages by way of example or

The owners and managers of an establishment or enterprise are likewise

correction for the public good. As mentioned earlier, the drugstore

responsible for damages caused by their employees in the service of the

business is affected with public interest. Petitioner should have exerted

branches in which the latter are employed or on the occasion of their

utmost diligence in the selection and supervision of its employees. On the

functions.

part of the employee concerned, she should have been extremely cautious
in dispensing pharmaceutical products. Due to the sensitive nature of its

Employers shall be liable for the damages caused by their employees and

business, petitioner must at all times maintain a high level of

household helpers acting within the scope of their assigned tasks, even

meticulousness. Therefore, an award of exemplary damages in the

though the former are not engaged in any business or industry.

amount of P25,000.00 is in order.

9|P a g e

Torts 5

On the matter of attorney's fees and expenses of litigation, it is settled that

the reasons or grounds for the award thereof must be set forth in the
decision of the court.[9]

Since the trial court's decision did not give the

basis of the award, the same must be deleted. In Vibram Manufacturing

Corporation v. Manila Electric Company,[10] we held:
Likewise, the award for attorney's fees and litigation expenses should be
deleted. Well-enshrined is that "an award for attorney's fees must be stated
in the text of the courts decision and not in the dispositive portion only"
(Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of
Appeals, 286 SCRA 257 [1998]). This is also true with the litigation
expenses where the body of the decision discussed nothing for its basis.
WHEREFORE, we DENY the petition. The challenged Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 57435 are
AFFIRMED with modification in the sense that (a) the award of moral
damages to respondent is reduced from P250,000.00 to P50,000.00; (b)
petitioner is likewise ordered to pay said respondent exemplary damages
in the amount of P25,000.00; and (c) the award of attorney's fees and
litigation expenses is deleted.

Costs against petitioner.

SO ORDERED.

10 | P a g e

Torts 5

PILIPINAS BANK, PETITIONER, VS. HON. COURT OF APPEALS AND

FLORENCIO REYES, RESPONDENTS.

Furious over the incident, he immediately proceeded to the bank and urged
an immediate verification of his account.
Upon verification, the bank noticed the error. The P32,000.00 deposit

DECISION

posted in the account of Florencio Amador was immediately transferred to

the account of Reyes upon being cleared by Florencio Amador that he did

PUNO, J.:
This is a petition for review of the Decision of the respondent court[1] in CAG.R. CV No. 29524 dated May 13, 1992 which ordered petitioner to pay
the private respondent the sum of P50,000.00 as moral damages,
P25,000.00 as attorney's fees and cost of suit.
The facts as found both by the trial court[2] and the respondent court are:

"As payments for the purchased shoe materials and rubber shoes,

not effect a deposit in the amount of P32,000.00. The transfer having been
effected, the bank then honored the October 12, 1979 check (Exh. "C")."

On the basis of these facts, the trial court ordered petitioner to pay to the
private respondent: (1) P200,000.00 as compensatory damages; (2)
P100,000.00 as moral damages; (3) P25,000.00 as attorney's fees, and (4)
the costs of suit. On appeal to the respondent court, the judgment was
modified as aforestated.

In this petition for review, petitioner argues:

Florencio Reyes issued postdated checks to Winner Industrial Corporation

for P20,927.00 and Vicente Tui, for P11,419.50, with due dates on October
10 and 12, 1979, respectively.

"I. Respondent Court of Appeals erred on a matter of law, in not applying

the first sentence of Article 2179, New Civil Code, in view of its own finding

To cover the face value of the checks, plaintiff, on October 10, 1979,

that respondent Reyes' own representative committed the mistake in

requested PCIB Money Shop's manager Mike Potenciano to effect the

writing down the correct account number;

withdrawal of P32,000.00 from his savings account therein and have it

deposited with his current account with Pilipinas Bank (then Filman Bank),
Bian Branch. Roberto Santos was requested to make the deposit.
In depositing in the name of FLORENCIO REYES, he inquired from the
teller the current account number of Florencio Reyes to complete the
deposit slip he was accomplishing. He was informed that it was '815' and

II. Respondent Court of Appeals erred, on a matter of law, in holding that

respondent Reyes has the right to recover moral damages and in awarding
the amount of P50,000.00, when there is no legal nor factual basis for it;
III. The Honorable Court of Appeals erred, on a matter of law, in holding
petitioner liable for attorney's fees in the amount of P20,000.00, when there
is no legal nor factual basis for it."

so this was the same current account number he placed on the deposit slip
below the depositor's name FLORENCIO REYES.

We find no merit in the petition.

Noting that the account number coincided with the name Florencio, Efren
[3]
Alagasi, then Current Account Bookkeeper of Pilipinas Bank, thought it was First. For Article 2179 of the Civil Code to apply, it must be established

for Florencio Amador who owned the listed account number. He, thus,

that private respondent's own negligence was the immediate and

posted the deposit in the latter's account not noticing that the depositor's

proximate cause of his injury. The concept of proximate cause is well

surname in the deposit slip was REYES.

defined in our corpus of jurisprudence as "any cause which, in natural and

On October 11, 1979, the October 10 check in favor of Winner Industrial

Corporation was presented for payment. Since the ledger of Florencio
Reyes indicated that his account had only a balance of P4,078.43, it was
dishonored and the payee was advised to try it for next clearing.

continuous sequence, unbroken by any efficient intervening cause,

produces the result complained of and without which would not have
occurred and from which it ought to have been forseen or reasonably
anticipated by a person of ordinary case that the injury complained of or
some similar injury, would result therefrom as a natural and probable

On October 15, 1979, the October 10, 1979 check was redeposited but

consequence."[4] In the case at bench, the proximate cause of the injury is

was again dishonored. Likewise, the October 12, 1979 check in favor of

the negligence of petitioner's employee in erroneously posting the cash

Vicente Tui when presented for payment on that same date met the same

deposit of private respondent in the name of another depositor who had a

fate but was advised to try the next clearing. Two days after the October 10 similar first name. As held by the trial court:
check was again dishonored, the payee returned the same to Florencio
Reyes and demanded a cash payment of its face value which he did if only

xxx

to save his name. The October 12, 1979 check was redeposited on
October 18, 1979, but again dishonored for the reason that the check was
drawn against insufficient fund.

"Applying the test, the bank employee is, on that basis, deemed to have
failed to exercise the degree of care required in the performance of his
duties. As earlier stated, the bank employee posted the cash deposit in the
11 | P a g e

Torts 5

account of Florencio Amador from his assumption that the name Florencio
appearing on the ledger without, however, going through the full name, is
the same Florencio stated in the deposit slip. He should have continuously
gone beyond mere assumption, which was proven to be erroneous, and
proceeded with clear certainty, considering the amount involved and the
repercussions it would create on the totality of the person notable of which
is the credit standing of the person involved should a mistake happen. The
checks issued by the plaintiff in the course of his business were dishonored
by the bank because the ledger of Florencio Reyes indicated a balance
insufficient to cover the face value of checks."

Second. In light of this negligence, the liability of petitioner for moral

damages cannot be impugned. So we held in Bank of the Philippine
Islands vs. IAC, et al.[5]

"The bank is not expected to be infallible but, as correrctly observed by

respondent Appellate Court, in this instance, it must bear the blame for not
discovering the mistake of its teller despite the established procedure
requiring the papers and bank books to pass through a battery of bank
personnel whose duty it is to check and countercheck them for possible
errors. Apparently, the officials and employees tasked to do that did not
peform their duties with due care, as may be gathered from the testimony
of the bank's lone witness, Antonio Enciso, who casually declared that 'the
approving officer does not have to see the account numbers and all those
things. Those are very petty things for the approving manager to look into'
(p. 78, Record on Appeal). Unfortunately, it was a petty thing,' like the
incorrect account number that the bank teller wrote on the initial deposit
slip for the newly-opened joint current account of the Canlas spouses, that
sparked this half-a-million-peso damage suit against the bank.
While the bank's negligence may not have been attended with malice and
bad faith, nevertheless, it caused serious anxiety, embarrassment and
humiliation to the private respondents for which they are entitled to recover
reasonable moral damages (American Express International, Inc. IAC, 167
SCRA 209). The award of reasonable attorney's fees is proper for the
private respondents were compelled to litigate to protect their interest (Art.
2208, Civil Code). However, the absence of malice and bad faith renders
the award of exemplary damages improper (Globe Mackay Cable and
Radio Corp. vs. Court of Appeals, 176 SCRA 778)."

IN VIEW WHEREOF, the petition is denied there being no reversible error

in the Decision of the respondent court. Cost against petitioner.

SO ORDERED.

12 | P a g e

Torts 5

FAR EASTERN SHIPPING COMPANY, PETITIONER, VS. COURT OF

members. A brief conference ensued between Kavankov and the crew

APPELAS AND PHILIPPINE PORTS AUTHORITY, RESPONDENTS.

members. When Gavino inquired what was all the commotion about,
Kavankov assured Gavino that there was nothing of it.

[G.R. NO. 130150. OCTOBER 1, 1998]

After Gavino noticed that the anchor did not take hold, he ordered the
MANILA PILOTS ASSOCIATION, PETITIONER, VS. PHILIPPINE PORTS engines half-astern. Abellana, who was then on the pier apron, noticed that
AUTHORITY AND FAR EASTERN SHIPPING COMPANY,
RESPONDENTS.

the vessel was approaching the pier fast. Kavankov likewise noticed that
the anchor did not take hold. Gavino thereafter gave the "full-astern" code.
Before the right anchor and additional shackles could be dropped, the bow

DECISION

of the vessel rammed into the apron of the pier causing considerable
damage to the pier. The vessel sustained damage too. (Exhibit "7-Far

REGALADO, J.:

Eastern Shipping"). Kavankov filed his sea protest (Exhibit "1-Vessel").

Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who

These consolidated petitions for review on certiorari seek in unison to

referred the report to the Philippine Ports Authority (Exhibit "2-Pilot")

annul and set aside the decision[1] of respondent Court of Appeals of

Abellana likewise submitted his report of the incident (Exhibit "B").

[2]

November 15, 1996 and its resolution dated July 31, 1997 in CA-G.R. CV
No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far

Per contract and supplemental contract of the Philippine Ports Authority

Eastern Shipping Company, Senen C. Gavino and Manila Pilots

and the contractor for the rehabilitation of the damaged pier, the same cost

Association. Defendants-Appellants," which affirmed with modification the

the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D"

judgment of the trial court holding the defendants-appellants therein

and "E").[3]

solidarily liable for damages in favor of herein private respondent.

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity),
through the Solicitor General, filed before the Regional Trial Court of

There is no dispute about the facts as found by the appellate court, thus --

Manila, Branch 39, a complaint for a sum of money against Far Eastern

x x x On June 20, 1980, the M/V PAVLODAR, flying under the flagship of

Shipping Co., Capt. Senen C. Gavino and the Manila Pilots Association,

the USSR, owned and operated by the Far Eastern Shipping Company

docketed as Civil Case No. 83-14958,[4] praying that the defendants therein

(FESC for brevitys sake), arrived at the Port of Manila from Vancouver,

be held jointly and severally liable to pay the plaintiff actual and exemplary

British Columbia at about 7:00 oclock in the morning. The vessel was

damages plus costs of suit. In a decision dated August 1, 1985, the trial

assigned Berth 4 of the Manila International Port, as its berthing space.

court ordered the defendants therein jointly and severally to pay the PPA

Captain Roberto Abellana was tasked by the Philippine Port Authority to

the amount of P1,053,300.00 representing actual damages and the cost of

supervise the berthing of the vessel. Appellant Senen Gavino was

suit.[5]

assigned by the appellant Manila Pilots Association (MPA for brevitys

sake) to conduct docking maneuvers for the safe berthing of the vessel to

The defendants appealed to the Court of Appeals and raised the following

Berth No. 4.

issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage,

solely liable for the damage caused by the vessel to the pier, at the port of

Gavino boarded the vessel at the quarantine anchorage and stationed

destination, for his negligence? And (2) Would the owner of the vessel be

himself in the bridge, with the master of the vessel, Victor Kavankov,

liable likewise if the damage is caused by the concurrent negligence of the

beside him. After a briefing of Gavino by Kavankov of the particulars of the

master of vessel and the pilot under a compulsory pilotage?

vessel and its cargo, the vessel lifted anchor from the quarantine
anchorage and proceeded to the Manila International Port. The sea was

As stated at the outset, respondent appellate court affirmed the findings of

calm and the wind was ideal for docking maneuvers.

the court a quo except that it found no employer-employee relationship

existing between herein private respondents Manila Pilots Association

When the vessel reached the landmark (the big church by the Tondo North

(MPA, for short) and Capt. Gavino.[6] This being so, it ruled instead that the

Harbor) one-half mile from the pier, Gavino ordered the engine stopped.

liability of MPA is anchored, not on Article 2180 of the Civil Code, but on

When the vessel was already about 2,000 feet from the pier, Gavino

the provisions of Customs Administrative Order No. 15-65,[7] and

ordered the anchor dropped. Kavankov relayed the orders to the crew of

accordingly modified said decision of the trial court by holding MPA, along

the vessel on the bow. The left anchor, with two (2) shackles were

with its co-defendants therein, still solidarily liable to PPA but entitled MPA

dropped. However, the anchor did not take hold as expected. The speed of

to reimbursement from Capt. Gavino for such amount of the adjudged

the vessel did not slacken. A commotion ensued between the crew

pecuniary liability in excess of the amount equivalent to seventy-five

13 | P a g e

Torts 5

percent (75%) of its prescribed reserve fund.[8]

No. 4 of the Manila International Port. Their concurrent negligence was the
immediate and proximate cause of the collision between the vessel and the

Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with

pier - Capt. Gavino, for his negligence in the conduct of docking

the decision of the Court of Appeals and both of them elevated their

maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for

respective plaints to us via separate petitions for review on certiorari.

failing to countermand the orders of the harbor pilot and to take over and
steer the vessel himself in the face of imminent danger, as well as for

In G.R. No. 130068, which was assigned to the Second Division of this

merely relying on Capt. Gavino during the berthing procedure.[11]

Court, FESC imputed that the Court of Appeals seriously erred:

1. in not holding Senen C. Gavino and the Manila Pilots Association as the

On the other hand, in G.R. No. 130150, originally assigned to the Court's

parties solely responsible for the resulting damages sustained by the pier

First Division and later transferred to the Third Division, MPA, now as

deliberately ignoring the established jurisprudence on the matter.

petitioner in this case, avers the respondent court's errors consisted in

disregarding and misinterpreting Customs Administrative Order No. 15-65

2. in holding that the master had not exercised the required diligence

which limits the liability of MPA. Said pilots' association asseverates that it

demanded from him by the circumstances at the time the incident

should not be held solidarily liable with Capt. Gavino who, as held by

happened;

respondent court, is only a member, not an employee, thereof. There being

no employer-employee relationship, neither can MPA be held liable for any

3. in affirming the amount of damages sustained by the respondent

vicarious liability for the respective exercise of profession by its members

Philippine Ports Authority despite a strong and convincing evidence that

nor be considered a joint tortfeasor as to be held jointly and severally

the amount is clearly exorbitant and unreasonable;

liable.[12] It further argues that there was erroneous reliance on Customs

Administrative Order No. 15-65 and the constitution and by-laws of MPA,

4. in not awarding any amount of counterclaim prayed for by the petitioner

instead of the provisions of the Civil Code on damages which, being a

in its answer; and

substantive law, is higher in category than the aforesaid constitution and

by-laws of a professional organization or an administrative order which

5. in not granting herein petitioner's claim against pilot Senen C. Gavino

and Manila Pilots' Association in the event that it be held liable.

[9]

bears no provision classifying the nature of the liability of MPA for the
negligence its member pilots.[13]

Petitioner asserts that since the MV PAVLODAR was under compulsory

pilotage at the time of the incident, it was a compulsory pilot, Capt. Gavino,

As for Capt. Gavino, counsel for MPA states that the former had retired

who was in command and had complete control in the navigation and

from active pilotage services since July 28, 1994 and has ceased to be a

docking of the vessel. It is the pilot who supersedes the master for the time

member of petitioner pilots' association. He is not joined as a petitioner in

being in the command and navigation of a ship and his orders must be

this case since his whereabouts are unknown.[14]

obeyed in all respects connected with her navigation. Consequently, he

was solely responsible for the damage caused upon the pier apron, and

FESC's comment thereto relied on the competence of the Court of Appeals

not the owners of the vessel. It claims that the master of the boat did not

in construing provisions of law or administrative orders as basis for

commit any act of negligence when he failed to countermand or overrule

ascertaining the liability of MPA, and expressed full accord with the

the orders of the pilot because he did not see any justifiable reason to do

appellate court's holding of solidary liability among itself, MPA and Capt.

so. In other words, the master cannot be faulted for relying absolutely on

Gavino. It further avers that the disputed provisions of Customs

the competence of the compulsory pilot. If the master does not observe

Administrative Order No. 15-65 clearly established MPA's solidary

that a compulsory pilot is incompetent or physically incapacitated, the

liability.[15]

[10]

master is justified in relying on the pilot.

On the other hand, public respondent PPA, likewise through

Respondent PPA, in its comment, predictably in full agreement with the

representations by the Solicitor General, assumes the same supportive

ruling of respondent court on the solidary liability of FESC, MPA and Capt.

stance it took in G.R. No. 130068 in declaring its total accord with the ruling

Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor

of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and

pilot, and Capt. Viktor Kabankov,* shipmaster of MV Pavlodar, as the basis

FESC for damages, and in its application to the fullest extent of the

of their solidary liability for damages sustained by PPA. It posits that the

provisions of Customs Administrative Order No. 15-65 in relation to MPA's

vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him

constitution and by-laws which spell out the conditions of and govern their

all the while on the bridge of the vessel, as the former took over the helm of respective liabilities. These provisions are clear and ambiguous as regards
MV Pavlodar when it rammed and damaged the apron of the pier of Berth

MPA's liability without need for interpretation or construction. Although

14 | P a g e

Torts 5

Customs Administrative Order No. 15-65 is a mere regulation issued by an

contained the following certification against forum shopping[21] signed by

administrative agency pursuant to delegated legislative authority to fix

Atty. Herbert A. Tria as affiant:

CERTIFICATION

details to implement the law, it is legally binding and has the same
statutory force as any valid statute.

[16]

AGAINST FORUM SHOPPING

Upon motion[17] by FESC dated April 24, 1998 in G.R. No. 130150, said

I/we hereby certify that I/we have not commenced any other action or

case was consolidated with G.R. No. 130068. [18]

proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; that to the best of my own

Prefatorily, on matters of compliance with procedural requirements, it must

knowledge, no such action or proceeding is pending in the Supreme Court,

be mentioned that the conduct of the respective counsel for FESC and

the Court of Appeals, or any other tribunal or agency; that if I/we should

PPA leaves much to be desired, to the displeasure and disappointment of

thereafter learn that a similar action or proceeding has been filed or is

this Court.

pending before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, I/we undertake to report that fact within five (5) days

Section 2, Rule 42 of the 1997 Rules of Civil Procedure

[19]

incorporates the

therefrom to this Honorable Court.

former Circular No. 28-91 which provided for what has come to be known

This motion having been granted, FESC subsequently filed its petition on

as the certification against forum shopping as an additional requisite for

September 26, 1997, this time bearing a "verification and certification

petitions filed with the Supreme Court and the Court of Appeals, aside from

against forum-shopping" executed by one Teodoro P. Lopez on September

the other requirements contained in pertinent provisions of the Rules of

24, 1997,[22] to wit:

Court therefor, with the end in view of preventing the filing of multiple

VERIFICATION AND CERTIFICATION

complaints involving the same issues in the Supreme Court, Court of

AGAINST FORUM SHOPPING

Appeals or different divisions thereof or any other tribunal or agency.

in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx

xxx

the Revised Rules of Civil Procedure

xxx
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and

The petitioner shall also submit together with the petition a certification

state:

under oath that he has not therefore commenced any other action involving
the same issues in the Supreme Court, the Court of Appeals or different

1. That I am the Manager, Claims Department of Filsov Shipping

divisions thereof, or any other tribunal or agency; if there is such other

Company, the local agent of petitioner in this case.

action or proceeding, he must state the status of the same; and if he

should thereafter learn that a similar action or proceeding has been filed or

2. That I have caused the preparation of this Petition for Review on

is pending before the Supreme Court, the Court of Appeals or different

Certiorari.

divisions thereof, or any other tribunal or agency, he undertakes to

promptly inform the aforesaid courts and other tribunal or agency thereof

3. That I have read the same and the allegations therein contained are true

within five (5) days therefrom. (Italics supplied.)

and correct based on the records of this case.

For petitions for review filed before the Supreme Court, Section 4(e), Rule
45 specifically requires that such petition shall contain a sworn certification

4. That I certify that petitioner has not commenced any other action or

against forum shopping as provided in the last paragraph of Section 2,

proceeding involving the same issues in the Supreme Court or Court of

Rule 42.

Appeals, or any other tribunal or agency, that to the best of my own

knowledge, no such action or proceeding is pending in the Supreme Court,

The records show that the law firm of Del Rosario and Del Rosario through

the Court of Appeals or any other tribunal or agency, that I should

its associate, Atty. Herbert A. Tria, is the counsel of record for FESC in

thereafter learn that a similar action or proceeding has been filed or is

both G.R. No. 130068 and G.R. No. 130150.

pending before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, I undertake to report the fact within five (5) days

G.R. No. 130068, which is assigned to the Court's Second Division,

therefrom to this Honorable Court. (Italics supplied for emphasis.)

commenced with the filing by FESC through counsel on August 22, 1997 of Reviewing the records, we find that the petition filed by MPA in G.R. No.
a verified motion for extension of time to file its petition for thirty (30) days
from August 28, 1997 or until September 27, 1997.

[20]

Said motion

130150 then pending with the Third Division was duly filed on August 29,
1997 with a copy thereof furnished on the same date by registered mail to
15 | P a g e

Torts 5

counsel for FESC.[23] Counsel of record for MPA, Atty. Jesus P. Amparo, in

good faith to the court.[26] He is an officer of the court exercising a privilege

his verification accompanying said petition dutifully revealed to the Court

which is indispensable in the administration of justice.[27] Candidness,

that--

especially towards the courts, is essential for the expeditious administration

xxx

xxx

xxx

of justice. Courts are entitled to expect only complete honesty from lawyers
appearing and pleading before them.[28] Candor in all dealings is the very

3. Petitioner has not commenced any other action or proceeding involving

essence of honorable membership in the legal profession.[29] More

the same issues in his Honorable Court, the Court of Appeals or different

specifically, a lawyer is obliged to observe the rules of procedure and not to

Divisions thereof, or any other tribunal or agency, but to the best of his

misuse them to defeat the ends of justice.[30] It behooves a lawyer,

knowledge, there is an action or proceeding pending in this Honorable

therefore, to exert every effort and consider it his duty to assist in the

Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports

speedy and efficient administration of justice.[31] Being an officer of the

Authority and Court of Appeals with a Motion for Extension of time to file

court, a lawyer has a responsibility in the proper administration of justice.

Petition for Review by Certiorari filed sometime on August 18, 1997. If

Like the court itself, he is an instrument to advance its ends -- the speedy,

undersigned counsel will come to know of any other pending action or

efficient, impartial, correct and inexpensive adjudication of cases and the

claim filed or pending he undertakes to report such fact within five (5) days

prompt satisfaction of final judgments. A lawyer should not only help attain

to this Honorable Court.[24] (Italics supplied.)

these objectives but should likewise avoid any unethical or improper

Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered

practices that impede, obstruct or prevent their realization, charged as he

mail on August 29, 1997 and taking judicial notice of the average period of

is with the primary task of assisting in the speedy and efficient

time it takes local mail to reach its destination, by reasonable estimation it

administration of justice.[32]

would be fair to conclude that when FESC filed its petition in G.R. No.
130068 on September 26, 1997, it would already have received a copy of

Sad to say, the members of said law firm sorely failed to observe their

the former and would then have knowledge of the pendency of the other

duties as responsible members of the Bar. Their actuations are indicative

petition initially filed with the First Division. It was therefore incumbent upon

of their predisposition to take lightly the avowed duties of officers of the

FESC to inform the Court of that fact through its certification against forum

Court to promote respect for law and for legal processes.[33] We cannot

shopping. For failure to make such disclosure, it would appear that the

allow this state of things to pass judicial muster.

aforequoted certification accompanying the petition in G.R. No. 130068 is

defective and could have been a ground for dismissal thereof.

In view of the fact that at around the time these petitions were commenced,
the 1997 Rules of Civil Procedure had just taken effect, the Court treated

Even assuming that FESC has not yet received its copy of MPA's petition

infractions of the new Rules then with relative liberality in evaluating full

at the time it filed its own petition and executed said certification, its

compliance therewith. Nevertheless, it would do well to remind all

signatory did state "that if I should thereafter learn that a similar action or

concerned that the penal provisions of Circular No. 28-91 which remain

proceeding has been filed or is pending before the Supreme Court, the

operative provides, inter alia:

Court of Appeals or any other tribunal or agency, I undertake to report the

3. Penalties.-

fact within five (5) days therefrom in this Honorable Court."

[25]

Scouring the

records page by page in this case, we find that no manifestation

xxx

xxx

xxx

concordant with such undertaking was then or at any other time thereafter
ever filed by FESC nor was there any attempt to bring such matter to the

(c) The submission of a false certification under Par. 2 of the Circular shall

attention of the Court. Moreover, it cannot feign non-knowledge of the

likewise constitute contempt of court, without prejudice to the filing of

existence of such other petition because FESC itself filed the motion for

criminal action against the guilty party. The lawyer may also be subjected

consolidation in G.R. No. 130150 of these two cases on April 24, 1998.

to disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained

It is disturbing to note that counsel for FESC, the law firm of Del Rosario

under the Rules is to be executed by the petitioner, and not by counsel.

and Del Rosario, displays an unprofessional tendency of taking the Rules

Obviously it is the petitioner, and not always the counsel whose

for granted, in this instance exemplified by its pro forma compliance

professional services have been retained for a particular case, who is in

therewith but apparently without full comprehension of and with less than

the best position to know whether he or it actually filed or caused the filing

faithful commitment to its undertakings to this Court in the interest of just,

of a petition in that case. Hence, a certification against forum shopping by

speedy and orderly administration of court proceedings.

counsel is a defective certification. It is clearly equivalent to noncompliance with the requirement under Section 2, Rule 42 in relation to

As between the lawyer and the courts, a lawyer owes candor, fairness and

Section 4, Rule 45, and constitutes a valid cause for dismissal of the
16 | P a g e

Torts 5

petition.

professional courtesy.[39]

Hence, the initial certification appended to the motion for extension of time

This undeniably dilatory disinclination of the OSG to seasonably file

to file petition n G.R. No. 130068 executed in behalf of FESC by Atty. Tria

required pleadings constitutes deplorable disservice to the tax-paying

is procedurally deficient. But considering that it was a superfluity at that

public and can only be categorized as censurable inefficiency on the part of

stage of the proceeding, it being unnecessary to file such a certification

the government law office. This is most certainly professionally

with a mere motion for extension, we shall disregard such error. Besides,

unbecoming of the OSG.

the certification subsequently executed by Teodoro P. Lopez in behalf of

FESC cures that defect to a certain extent, despite the inaccuracies earlier

Another thing that baffles the Court is why the OSG did not take the

pointed out. In the same vein, we shall consider the verification signed in

initiative of filing a motion for consolidation in either G.R. No. 130068 or

behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as

G.R. No. 130150, considering its familiarity with the background of the

substantial compliance inasmuch as it served the purpose of the Rules of

case and if only to make its job easier by having to prepare and file only

informing the Court of the pendency of another action or proceeding

one comment. It could not have been unaware of the pendency of one or

involving the same issues.

the other petition because, being counsel for respondent in both cases,
petitioner is required to furnish it with a copy of the petition under pain of

It bears stressing that procedural rules are instruments in the speedy and

dismissal of the petition for failure otherwise.[40]

efficient administration of justice. They should be used to achieve such end

Besides, in G.R. 130068, it prefaces its discussions thus --

[34]

and not to derail it.

Incidentally, the Manila Pilots' Association (MPA), one of the defendantsCounsel for PPA did not make matters any better. Despite the fact that,

appellants in the case before the respondent Court of Appeals, has taken a

save for the Solicitor General at the time, the same legal team of the Office

separate appeal from the said decision to this Honorable Court, which was

of the Solicitor General (OSG, for short) composed of Assistant Solicitor

docketed as G.R. No. 130150 and entitled "Manila Pilots' Association,

General Roman G. Del Rosario and Solicitor Luis F. Simon, with the

Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co.,

addition of Assistant Solicitor General Pio C. Guerrero very much later in

Respondents.[41]

the proceedings, represented PPA throughout the appellate proceedings in

Similarly, in G.R. No. 130150, it states -

both G.R. No. 130068 and G.R. No. 130150 and was presumably fully

Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken

acquainted with the facts and issues of the case, it took the OSG an

an appeal from the said decision to this Honorable Court, docketed as G.R.

inordinately and almost unreasonably long period of time to file its

No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and

comment, thus unduly delaying the resolution of these cases. It took

Philippine Ports Authority."[42]

several changes of leadership in the OSG -- from Silvestre H. Bello III to

We find here a lackadaisical attitude and complacency on the part of the

Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- before the comment

OSG in the handling of its cases and an almost reflexive propensity to

in behalf of PPA was finally filed.

move for countless extensions, as if to test the patience of the Court,

before favoring it with the timely submission of required pleadings.

In G.R. No. 130068, it took eight (8) motions for extension of time totaling
210 days, a warning that no further extensions shall be granted, and

It must be emphasized that the Court can resolve cases only as fast as the

personal service on the Solicitor General himself of the resolution requiring

respective parties in a case file the necessary pleadings. The OSG, be

the filing of such comment before the OSG indulged the Court with the long needlessly extending the pendency of these cases through its numerous
required comment on July 10, 1998.[35] This, despite the fact that said office motions for extension, came very close to exhausting this Court's
was required to file its comment way back on November 12, 1997. [36] A

forbearance and has regrettably fallen short of its duties as the People's

closer scrutiny of the records likewise indicates that petitioner FESC was

Tribune.

not even furnished a copy of said comment as required by Section 5, Rule

42. Instead, a copy thereof was inadvertently furnished to MPA which, from

The OSG is reminded that just like other members of the Bar, the canons

the point of view of G.R. No. 130068, was a non-party.[37] The OSG fared

under the Code of Professional Responsibility apply with equal force on

slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a

lawyers in government service in the discharge of their official tasks.[43]

total of 180 days, before the comment was finally filed.[38] And while it

These ethical duties are rendered even more exacting as to them because,

properly furnished petitioner MPA with a copy of its comment, it would have as government counsel, they have the added duty to abide by the policy of
been more desirable and expedient in this case to have furnished its

the State to promote a high standard of ethics in public service. [44]

therein co-respondent FESC with a copy thereof, if only as a matter of

Furthermore, it is incumbent upon the OSG, as part of the government

17 | P a g e

Torts 5

bureaucracy, to perform and discharge its duties with the highest degree of
professionalism, intelligence and skill[45] and to extend prompt, courteous

f) a pilot shall be held responsible for the direction of a vessel from the time

and adequate service to the public.[46]

he assumes his work as a pilot thereof until he leaves it anchored or

berthed safely; Provided, however, that his responsibility shall cease at the

Now, on the merits of the case. After a judicious examination of the records moment the Master neglects or refuses to carry out his order.
of this case, the pleadings filed, and the evidence presented by the parties

Customs Administrative Order No. 15-65 issued twenty years earlier

in the two petitions, we find no cogent reason to reverse and set aside the

likewise provided in Chapter I thereof for the responsibilities of pilots:

questioned decision. While not entirely a case of first impression, we shall

Par. XXXIX. - A Pilot shall be held responsible for the direction of a vessel

discuss the issues seriatim and, correlatively by way of a judicial once-

from the time he assumes control thereof until he leaves it anchored free

over, inasmuch as the matters raised in both petitions beg for validation

from shoal; Provided, That his responsibility shall cease at the moment the

and updating of well worn maritime jurisprudence. Thereby, we shall write

master neglects or refuses to carry out his instructions.

finis to the endless finger-pointing in this shipping mishap which has been
stretched beyond the limits of judicial tolerance.

xxx

The Port of Manila is within the Manila Pilotage District which is under

Par. XLIV. - Pilots shall properly and safely secure or anchor vessels under

compulsory pilotage pursuant to Section 8, Article III of Philippine Ports

their control when requested to do so by the master of such vessels.

Authority Administrative Order No. 03-85,

[47]

xxx

xxx

I. G.R. No. 130068

which provides that:

SEC. 8. Compulsory Pilotage Service.- For entering a harbor and

anchoring thereat, or passing through rivers or straits within a pilotage

Petitioner FESC faults the respondent court with serious error in not

district, as well as docking and undocking at any pier/wharf, or shifting from

holding MPA and Capt. Gavino solely responsible for the damages caused

one berth or another, every vessel engaged in coastwise and foreign trade

to the pier. It avers that since the vessel was under compulsory pilotage at

shall be under compulsory pilotage. x x x

the time with Capt. Gavino in command and having exclusive control of the

In case of compulsory pilotage, the respective duties and responsibilities of

vessel during the docking maneuvers, then the latter should be responsible

the compulsory pilot and the master have been specified by the same

for damages caused to the pier.[48] It likewise holds the appellate court in

regulation in this wise:

error for holding that the master of the ship, Capt. Kabankov, did not

SEC. 11. Control of vessels and liability for damage. - On compulsory

exercise the required diligence demanded by the circumstances.[49]

pilotage grounds, the Harbor Pilot, providing the service to a vessel shall
be responsible for the damage caused to a vessel or to life and property at

We start our discussion of the successive issues bearing in mind the

ports due to his negligence or fault. He can only be absolved from liability if

evidentiary rule in American jurisprudence that there is a presumption of

the accident is caused by force majeure or natural calamities provided he

fault against a moving vessel that strikes a stationary object such as a dock

has exercised prudence and extra diligence to prevent or minimize

or navigational aid. In admiralty, this presumption does more than merely

damage.

require the ship to go forward and produce some evidence on the

presumptive matter. The moving vessel must show that it was without fault

The Master shall retain overall command of the vessel even on pilotage

or that the collision was occasioned by the fault of the stationary object or

grounds whereby he can countermand or overrule the order or command

was the result of inevitable accident. It has been held that such vessel

of the Harbor Pilot on board. In such event, any damage caused to a

must exhaust every reasonable possibility which the circumstances admit

vessel or to life and property at ports by reason of the fault or negligence of

and show that in each, they did all that reasonable care required. [50] In the

the Master shall be the responsibility and liability of the registered owner of

absence of sufficient proof in rebuttal, the presumption of fault attaches to

the vessel concerned without prejudice to recourse against said Master.

a moving vessel which collides with a fixed object and makes a prima facie
case of fault against the vessel.[51] Logic and experience support this

Such liability of the owner or Master of the vessel or its pilots shall be

presumption:

determined by competent authority in appropriate proceedings in the light

The common sense behind the rule makes the burden a heavy one. Such

of the facts and circumstances of each particular case.

accidents simply do not occur in the ordinary course of things unless the
vessel has been mismanaged in some way. It is not sufficient for the

SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association. - The respondent to produce witnesses who testify that as soon as the danger
duties and responsibilities of the Harbor Pilot shall be as follows:

became apparent everything possible was done to avoid an accident. The

question remains, How then did the collision occur? The answer must be

xxx

xxx

xxx

either that, in spite of the testimony of the witnesses, what was done was
18 | P a g e

Torts 5

too little or too late or, if not, then the vessel was at fault for being in a
position in which an unavoidable collision would occur.

standards of care and diligence required of a pilot, whereby he assumes to

[52]

have skill and knowledge in respect to navigation in the particular waters

The task, therefore, in these cases is to pinpoint who was negligent - the

over which his license extends superior to and more to be trusted than that

master of the ship, the harbor pilot or both.

of the master.[57] A pilot should have a thorough knowledge of general and

local regulations and physical conditions affecting the vessel in his charge

A pilot, in maritime law, is a person duly qualified, and licensed, to conduct

and the waters for which he is licensed, such as a particular harbor or river.

a vessel into or out of ports, or in certain waters. In a broad sense, the term He is not held to the highest possible degree of skill and care, but must
"pilot" includes both (1) those whose duty it is to guide vessels into or out

have and exercise the ordinary skill and care demanded by the

of ports, or in particular waters and (2) those entrusted with the navigation

circumstances, and usually shown by an expert in his profession. Under

of vessels on the high seas.

[53]

However, the term "pilot" is more generally

extraordinary circumstances, a pilot must exercise extraordinary care. [58]

understood as a person taken on board at a particular place for the

purpose of conducting a ship through a river, road or channel, or from a

In Atlee vs. The Northwestern Union Packet Company,[59] Mr. Justice Miller

port.[54]

spelled out in great detail the duties of a pilot:

x x x (T)he pilot of a river steamer, like the harbor pilot, is selected for his

Under English and American authorities, generally speaking, the pilot

personal knowledge of the topography through which he steers his vessel.

supersedes the master for the time being in the command and navigation

In the long course of a thousand miles in one of these rivers, he must be

of the ship, and his orders must be obeyed in all matters connected with

familiar with the appearance of the shore on each side of the river as he

her navigation. He becomes the master pro hac vice and should give all

goes along. Its banks, towns, its landings, its houses and trees, are all

directions as to speed, course, stopping and reversing, anchoring, towing

landmarks by which he steers his vessel. The compass is of little use to

and the like. And when a licensed pilot is employed in a place where

him. He must know where the navigable channel is, in its relation to all

pilotage is compulsory, it is his duty to insist on having effective control of

these external objects, especially in the night. He must also be familiar with

the vessel, or to decline to act as pilot. Under certain systems of foreign

all dangers that are permanently located in the course of the river, as sand-

law, the pilot does not take entire charge of the vessel, but is deemed

bars, snags, sunken rocks or trees or abandoned vessels or barges. All

merely the adviser of the master, who retains command and control of the

this he must know and remember and avoid. To do this, he must be

navigation even on localities where pilotage is compulsory.

[55]

constantly informed of the changes in the current of the river, of the sandbars newly made, of logs or snags, or other objects newly presented,

It is quite common for states and localities to provide for compulsory

against which his vessel might be injured.

pilotage, and safety laws have been enacted requiring vessels approaching
their ports, with certain exceptions, to take on board pilots duly licensed

xxx

xxx

xxx

under local law. The purpose of these laws is to create a body of seamen
thoroughly acquainted with the harbor, to pilot vessels seeking to enter or
depart, and thus protect life and property from the dangers of navigation.

[56]

It may be said that this is exacting a very high order of ability in a pilot. But
when we consider the value of the lives and property committed to their
control, for in this they are absolute masters, the high compensation they

In line with such established doctrines, Chapter II of Customs

receive, the care which Congress has taken to secure by rigid and frequent

Administrative Order No. 15-65 prescribes the rules of compulsory pilotage

examinations and renewal of licenses, this very class of skill, we do not

in the covered pilotage districts, among which is the Manila Pilotage

think we fix the standard too high.

District, viz. --

Tested thereby, we affirm respondent court's finding that Capt. Gavino

PARAGRAPH I. - Pilotage for entering a harbor and anchoring thereat, as

failed to measure up to such strict standard of care and diligence required

well as docking and undocking in any pier or shifting from one berth to

of pilots in the performance of their duties. Witness this testimony of Capt.

another shall be compulsory, except Government vessels and vessels of

Gavino:

foreign governments entitled to courtesy, and other vessels engaged solely

in river or harbor work, or in a daily ferry service between ports which shall

Court:

be exempt from compulsory pilotage provisions of these regulations:

You have testified before that the reason why the vessel bumped

provided, however, that compulsory pilotage shall not apply in pilotage

the pier was because the anchor was not released immediately or

districts whose optional pilotage is allowed under these regulations.

as soon as you have given the order. Do you remember having

Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into

stated that?

Berth 4 of the Manila International Port. Upon assuming such office as

Yes, your Honor.

compulsory pilot, Capt. Gavino is held to the universally accepted high

19 | P a g e

Torts 5

And you gave this order to the captain of the vessel?

Yes, your Honor.

others in the same employment, and if his pretensions are unfounded he

commits a species of fraud on every man who employs him in reliance on
his public profession.[64]

By that testimony, you are leading the Court to understand that is

Q

that anchor was released immediately at the time you gave the
Furthermore, there is an obligation on all persons to take the care which,
order, the incident would not have happened. Is that correct?
under ordinary circumstances of the case, a reasonable and prudent man
Yes, sir, but actually it was only a presumption on my part because
there was a commotion between the officers who are in charge of

the dropping of the anchor and the captain. I could not understand
their language, it was in Russian, so I presumed the anchor was
not dropped on time.

Generally, the degree of care required is graduated according to the

danger a person or property attendant upon the activity which the actor
pursues or the instrumentality which he uses. The greater the danger the
greater the degree of care required. What is ordinary under extraordinary

So, you are not sure whether it was really dropped on time or not?

of conditions is dictated by those conditions; extraordinary risk demands

A I am not sure, your Honor.

extraordinary care. Similarly, the more imminent the danger, the higher the

xxxxxxxxx
Q

would take, and the omission of that care constitutes negligence.[65]

degree of care.[66]

You are not even sure what could have caused the incident. What
We give our imprimatur to the bases for the conclusion of the Court of
factor could have caused the incident?
Appeals that Capt. Gavino was indeed negligent in the performance of his
Well, in this case now, because either the anchor was not dropped

on time or the anchor did not hold, that was the cause of the

duties:
xxx

xxx

xxx

incident, your Honor.[60]

It is disconcertingly riddled with too much incertitude and manifests a

x x x As can be gleaned from the logbook, Gavino ordered the left anchor

seeming indifference for the possibly injurious consequences his

and two (2) shackles dropped at 8:30 o'clock in the morning. He ordered

commands as pilot may have. Prudence required that he, as pilot, should

the engines of the vessel stopped at 8:31 o'clock. By then, Gavino must

have made sure that his directions were promptly and strictly followed. As

have realized that the anchor did not hit a hard object and was not clawed

correctly noted by the trial court -

so as to reduce the momentum of the vessel. In point of fact, the vessel

Moreover, assuming that he did indeed give the command to drop the

continued travelling towards the pier at the same speed. Gavino failed to

anchor on time, as pilot he should have seen to it that the order was

react. At 8:32 o'clock, the two (2) tugboats began to push the stern part of

carried out, and he could have done this in a number of ways, one of which

the vessel from the port side but the momentum of the vessel was not

was to inspect the bow of the vessel where the anchor mechanism was

contained. Still, Gavino did not react. He did not even order the other

installed. Of course, Captain Gavino makes reference to a commotion

anchor and two (2) more shackles dropped to arrest the momentum of the

among the crew members which supposedly caused the delay in the

vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four

execution of the command. This account was reflected in the pilot's report

(4) minutes, after the anchor was dropped that Gavino reacted. But his

prepared four hours later, but Capt. Kavankov, while not admitting whether

reaction was even (haphazard) because instead of arresting fully the

or not such a commotion occurred, maintained that the command to drop

momentum of the vessel with the help of the tugboats, Gavino ordered

anchor was followed "immediately and precisely." Hence, the Court cannot

merely "half-astern". It took Gavino another minute to order a "full-astern".

give much weight or consideration to this portion of Gavino's testimony." [61]

By then, it was too late. The vessel's momentum could no longer be

An act may be negligent if it is done without the competence that a

arrested and, barely a minute thereafter, the bow of the vessel hit the

reasonable person in the position of the actor would recognize as

apron of the pier. Patently, Gavino miscalculated. He failed to react and

necessary to prevent it from creating an unreasonable risk of harm to

undertake adequate measures to arrest fully the momentum of the vessel

another.

[62]

Those who undertake any work calling for special skills are

after the anchor failed to claw to the seabed. When he reacted, the same

required not only to exercise reasonable care in what they do but also

was even (haphazard). Gavino failed to reckon the bulk of the vessel, its

possess a standard minimum of special knowledge and ability.[63]

size and its cargo. He erroneously believed that only one (1) anchor would
suffice and even when the anchor failed to claw into the seabed or against

Every man who offers his services to another, and is employed, assumes

a hard object in the seabed, Gavino failed to order the other anchor

to exercise in the employment such skills he possesses, with a reasonable

dropped immediately. His claim that the anchor was dropped when the

degree of diligence. In all these employments where peculiar skill is

vessel was only 1,000 feet from the pier is but a belated attempt to

requisite, if one offers his services he is understood as holding himself out

extricate himself from the quagmire of his own insouciance and negligence.

to the public as possessing the degree of skill commonly possessed by

In sum, then, Appellants' claim that the incident was caused by "force
20 | P a g e

Torts 5

majeure" is barren of factual basis.

must cause the ordinary work of the vessel to be properly carried on and
the usual precaution taken. Thus, in particular, he is bound to see that

xxx

xxx

xxx

there is sufficient watch on deck, and that the men are attentive to their
duties, also that engines are stopped, towlines cast off, and the anchors

The harbor pilots are especially trained for this job. In the Philippines, one

clear and ready to go at the pilot's order.[72]

may not be a harbor pilot unless he passed the required examination and
training conducted then by the Bureau of Custom, under Customs

Perusal of Cat. Kabankov's testimony makes it apparent that

Administrative Order No. 15-65, now under the Philippine Ports Authority

he was remiss in the discharge of his duties as master of the

under PPA Administrative Order 63-85. Paragraph XXXIX of the Customs

ship, leaving the entire docking procedure up to the pilot,

Administrative Order No. 15-65 provides that "the pilot shall be held

instead of maintaining watchful vigilance over this risky

responsible for the direction of the vessel from the time he assumes control

maneuver:

thereof, until he leaves it anchored free from shoal: Provided, that his
responsibility shall cease at the moment the master neglects or refuse(s) to

Will you please tell us whether you have the right to intervene
Q
in docking of your ship in the harbor?

carry out his instructions." The overall direction regarding the procedure for
docking and undocking the vessel emanates from the harbor pilot. In the

No sir, I have no right to intervene in time of docking, only in

A
case there is imminent danger to the vessel and to the pier.

present recourse, Gavino failed to live up to his responsibilities and

exercise reasonable care or that degree of care required by the exigencies

Did you ever intervene during the time that your ship was
Q
being docked by Capt. Gavino?

of the occasion. Failure on his part to exercise the degree of care

demanded by the circumstances is negligence (Reese versus Philadelphia

No sir, I did not intervene at the time when the pilot was
A
docking my ship.

& RR Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]

This affirms the findings of the trial court regarding Capt. Gavino's

Up to the time it was actually docked at the pier, is that

Q
correct'?

negligence:
This discussion should not however, divert the court from the fact that
negligence in manuevering the vessel must be attributed to Capt. Senen

No sir, I did not intervene up to the very moment when the

A
vessel was docked.

Gavino. He was an experienced pilot and by this time should have long
familiarized himself with the depth of the port and the distance he could
keep between the vessel and port in order to berth safely.[68]

xxxxxxxxx
Atty. Del
Rosario

(to the witness)

The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov
is no less responsible for the allision. His unconcerned lethargy as master

Mr. Witness, what happened, if any, or was there anything

Q
unusual that happened during the docking?

of the ship in the face of troublous exigence constitutes negligence.

While it is indubitable that in exercising his functions a pilot-is in sole

[69]

command of the ship

Yes sir, our ship touched the pier and the pier was damaged.

Court

(to the witness)

and supersedes the master for the time being in

the command and navigation of a ship and that he becomes master pro

When you said touched the pier, are you leading the court to
Q
understand that your ship bumped the pier?

hac vice of a vessel piloted by him,[70] there is overwhelming authority to

the effect that the master does not surrender his vessel to the pilot and the

I believe that my vessel only touched the pier but the impact
A
was very weak.

pilot is not the master. The master is still in command of the vessel
notwithstanding the presence of a pilot. There are occasions when the

Do you know whether the pier was damaged as a result of

Q
that slight or weak impact?

master may and should interfere and even displace the pilot, as when the
pilot is obviously incompetent or intoxicated and the circumstances may

Yes sir, after the pier was damaged.

require the master to displace a compulsory pilot because of incompetency

xxxxxxxxx

or physical incapacity. If, however, the master does not observe that a

Being most concerned with the safety of your vessel, in the

compulsory pilot is incompetent or physically incapacitated, the master is

maneuvering of your vessel, to the port, did you observe

justified in relying on the pilot, but not blindly.[71]

anything irregular in the maneuvering by Capt. Gavino at the

time he was trying to cause the vessel to be docked at the

The master is not wholly absolved from his duties while a pilot is on board
his vessel, and may advise with or offer suggestions to him. He is still in

pier?
A

You mean the action of Capt. Gavino or his condition?

command of the vessel, except so far as her navigation is concerned, and

21 | P a g e

Torts 5

Court:
Q

No sir, at the beginning, I did not doubt it because I believe

Not the actuation that conform to the safety maneuver of the

more aware as to the depths of the harbor and the ground

ship to the harbor?

A

and I was confident in his actions.

No sir, it was a usual docking.

xxxxxxxxx

By that statement of yours, you are leading the court to

Q

understand that there was nothing irregular in the docking of

Solicitor

the ship?

Abad

Yes sir, during the initial period, of the docking, there was

(to the witness)

What about in the last portion of the docking of the ship, was
there anything unusual or abnormal that happened?

You want us to understand, Mr. Witness, that the dropping of

point of view?
A
Q

Whatever the pilot can read from the panel of the bridge, you

What is the meaning of panel'?

dropped earlier and with more shackles, there could not have

All indications necessary for men on the bridge to be informed

of the movements of the ship?

A

the anchor was timely because you are not well aware of the

Yes sir, that, is right.

Alright, Capt. Kavankov, did you come to know later whether

A
Q

It is difficult for me to say definitely. I believe that the anchor

And whatever sound the captain... Capt. Gavino would hear

That is right.
Now, you said that when the command to lower the anchor
was given, it was obeyed, is that right?

the anchor held its ground so much so that the vessel could
not travel?

That is right.

from the bridge, you could also hear?

xxxxxxxxx

That is right.

I don't know the depth of this port but I think, if the anchor was A

seabed, is that correct?

And so whatever the pilot saw, you could also see from that

also could read, is that correct?

So you could not precisely tell the court that the dropping of

Yes sir, all the time, I was standing with the pilot.

the anchor of the vessel was not timely?

been an incident.

None Your Honor, I believe that Capt. Gavino thought that the
anchor could keep or hold the vessel.

Now, you were standing with the pilot on the bridge of the
vessel before the incident happened, were you not?

nothing unusual that happened.

Q

Capt. Gavino to be an experienced pilot and he should be

This command was executed by the third mate and

boatswain.

Court

(to the witness)

did not hold the ship.

Mr. Witness, earlier in today's hearing, you said that you did
Q

You mean you don't know whether the anchor blades stuck to
the ground to stop the ship from further moving?

Yes sir, it is possible.

What is possible?

I think, the 2 shackles were not enough to hold the vessel.

Did you know that the 2 shackles were dropped?

Yes sir, I knew that.

Q
A
Q

If you knew that the shackles were not enough to hold the

not intervene with the duties of the pilot and that, in your
opinion, you can only intervene if the ship is placed in
imminent danger, is that correct?

That is right, I did say that.

In your observation before the incident actually happened, did

you observe whether or not the ship, before the actual

incident, the ship was placed in imminent danger?.

No sir, I did not observe.

ship, did you not make any protest to the pilot?

By that answer, are you leading the court to understand that

No sir, after the incident, that was my assumption.

because you did not intervene and because you believed that

Did you come to know later whether that presumption is

it was your duty to intervene when the vessel is placed in

imminent danger to which you did not observe any imminent

correct?

danger thereof, you have not intervened in any manner to the

A
Q

I still don't know the ground in the harbor or the depths.

So from the beginning, you were not competent whether the 2

command of the pilot?

A

That is right, sir.

shackles were also dropped to hold the ship?

22 | P a g e

Torts 5

xxxxxxxxx

familiarity of the seabed and shoals and other surroundings or

Assuming that you disagreed with the pilot regarding the step

conditions under the sea, is that correct?

being taken by the pilot in maneuvering the vessel. whose

command will prevail, in case of imminent danger to the

vessel?
A

I did not consider the situation as having an imminent danger.

xxxxxxxxx
Solicitor
(to the witness)
Abad

I believed that the vessel will dock alongside the pier.

Q

You want us to understand that you did not see an imminent

And so after the anchors were ordered dropped and they did
Q

danger to your ship, is that what you mean?

A

Yes sir, up to the very last moment, I believed that there was

Q
A
Q

As a captain of M/V Pavlodar, you consider docking

correct?

maneuvers a serious matter, is it not?

Yes sir, I was alerted but there was no danger.

Yes sir, that is right.

And you were alerted that somebody was wrong?

Since it affects not only the safety of the port or pier, but also

Yes sir, I was alerted.

That is right.

A
Q
A
Q
A
Q

A
Court

And that is the same alertness when the anchor did not hold
onto the ground, is that correct?

Yes sir, me and Capt. Gavino (thought) that the anchor will
hold the ground.

Yes sir, that is right.

But at no time during the maneuver did you issue order

Yes sir, I mean that it was usual condition of any man in time
of docking to be alert.

And that you were also alert for any possible mistakes he
might commit in the maneuvering of the vessel?

And this alert you assumed was the ordinary alertness that
you have for normal docking?

I was close to him, I was hearing his command and being

executed.

So that, I assume that you were watching Capt. Gavino very

closely at the time he was making his commands?

hold the seabed but not done (sic), as you expected, you
already were alerted that there was danger to the ship, is that

the safety of the vessel and the cargo, is it not?

A

Yes sir, because the anchor dragged on the ground later.

And after a few moments when the anchor should have taken

Solicitor
(to the witness)

to take hold of the bottom and it did not, there was no danger
to the ship?

command of the pilot to be correct.

Abad

No sir, there was no imminent danger to the vessel.

Do you mean to tell us that even if the anchor was supposed

the pilot?
Yes sir, I did not intervene because I believed that the

not take hold of the seabed, you were alerted that there was
danger already on hand?

no imminent danger.
Because of that, did you ever intervene in the command of

Yes sir, that is right.

Since, as you said that you agreed all the while with the
Q

orders of Capt. Gavino, you also therefore agreed with him in

contrary to the orders Capt. Gavino made?

his failure to take necessary precaution against the

No sir.

eventuality that the anchor will not hold as expected?

So that you were in full accord with all of Capt. Gavino's

Atty. Del

orders?

Rosario:
May I ask that the question ...

Yes sir.
Because, otherwise, you would have issued order that would

Solicitor

supersede his own order?

Abad:

In that case, I should take him away from his command or

Never mind, I will reform the question.

remove the command from him.

xxxxxxxxx

(to the witness)

Solicitor

You were in full accord with the steps being taken by Capt.

Abad

Gavino because you relied on his knowledge, on his

(to the witness)

Q

Is it not a fact that the vessel bumped the pier?

23 | P a g e

Torts 5

That is right, it bumped the pier.

Rosario:

For the main reason that the anchor of the vessel did not hold

the ground as expected?

Already answered, he already said yes sir.

Court:

[73]

Yes sir, that is my opinion."

Yes, he has just answered yes sir to the Court that there was

Further, on redirect examination, Capt. Kabankov fortified his apathetic

no disagreement insofar as the bringing of the vessel safely

assessment of the situation:

to the port.
Atty.

Now, after the anchor was dropped, was there any point in time that
Q

Catris:

you felt that the vessel was in imminent danger.

A

But in this instance of docking of the MV Pavlodar, do you

No, at that time, the vessel was not in imminent danger, sir."[74]

remember of a time during the course of the docking that the

This cavalier appraisal of the event by Capt. Kabankov is disturbingly

MV Pavlodar was in imminent danger of bumping the pier?

antipodal to Capt. Gavino's anxious assessment of the situation:

When we were about more than one thousand meters from

the pier. I think, the anchor was not holding, so I immediately

When a pilot is on board a vessel, it is the pilot's command

Q

which should be followed-at that moment until the vessel is,

ordered to push the bow at a fourth quarter, at the back of the

vessel in order to swing the bow away from the pier and at

or goes to port or reaches port?

the same time, I ordered for a full astern of the engine."[75]

Yes, your Honor, but it does not take away from the Captain
A
his prerogative to countermand the pilot.

These conflicting reactions can only imply, at the very least, unmindful
disregard or, worse, neglectful relinquishment of duty by the shipmaster,

In what way?
In any case, which he thinks the pilot is not maneuvering

tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:

correctly, the Captain always has the prerogative to

countermand the pilot's order.

For, while the pilot Gavino may indeed have been charged with the task of

But insofar as competence, efficiency and functional

docking the vessel in the berthing space, it is undisputed that the master of

knowledge of the seabed which are vital or decisive in the

the vessel had the corresponding duty to countermand any of the orders

safety (sic) bringing of a vessel to the port, he is not

made by the pilot, aid even maneuver the vessel himself, in case of

competent?

imminent danger to the vessel and the port.

Yes, your Honor. That is why they hire a pilot in an advisory

A

capacity, but still, the safety of the vessel rest(s) upon the

In fact, in his testimony, Capt. Kavankov admitted that all throughout the

Captain, the Master of the vessel.

man(eu)vering procedures he did not notice anything was going wrong,

In this case, there was not a disagreement between you and

Q
the Captain of the vessel in the bringing of the vessel to port?

and even observed that the order given to drop the anchor, was done at
the proper time. He even ventured the opinion that the accident occurred
because the anchor failed to take hold but that this did not alarm him

No, your Honor.

because there was still time to drop a second anchor.

Court:
May proceed.

Under normal circumstances, the above-mentioned facts would have

Atty.

caused the master of a vessel to take charge of the situation and see to the

Catris:

man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely

In fact, the Master of the vessel testified here that he was all
along in conformity with the orders you gave to him, and, as

blindly upon his pilot, who by this time was proven ill-equipped to cope with
the situation.

matter of fact, as he said, he obeyed all your orders. Can you

tell, if in the course of giving such normal orders for the saf(e)

xxx

xxx

xxx

docking of the MV Pavlodar, do you remember of any

instance that the Master of the vessel did not obey your
command for the safety docking of the MV Pavlodar?

It is apparent that Gavino was negligent but Far Eastern's employee Capt.
Kavankov was no less responsible for as master of the vessel he stood by
the pilot during the man(eu)vering procedures and was privy to every move

Atty. del

the latter made, as well as the vessel's response to each of the commands.

24 | P a g e

Torts 5

His choice to rely blindly upon the pilot's skills, to the point that despite

As early as 1869, the U.S. Supreme Court declared, through Mr. Justice

being appraised of a notice of alert he continued to relinquish control of the

Swayne, in The Steamship China vs. Walsh,[78] that it is the duty of the

vessel to Gavino, shows indubitably that he was not performing his duties

master to interfere in cases of the pilot's intoxication or manifest incapacity,

with the diligence required of him and therefore may be charged with

in cases of danger which he does not foresee, and in all cases of great

negligence along with defendant Gavino.

[76]

necessity. The master has the same power to displace the pilot that he has
to remove any subordinate officer of the vessel, at his discretion.

As correctly affirmed by the Court of Appeals In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown,
We are in full accord with the findings and disquisitions of the Court a quo.

emphatically ruled that:

Nor are we satisfied with the conduct of the master in leaving the pilot in

In the present recourse, Captain Viktor Kavankov had been a mariner for

sole charge of the vessel. While the pilot doubtless supersedes the master

thirty-two years before the incident. When Gavino was (in) the command of

for the time being in the command and navigation of the ship, and his

the vessel, Kavankov was beside Gavino, relaying the commands or

orders must be obeyed in all matters connected with her navigation, the

orders of Gavino to the crewmembers-officers of the vessel concerned. He

master is not wholly absolved from his duties while the pilot is on board,

was thus fully aware of the docking maneuvers and procedure Gavino

and may advise with him, and even displace him in case he is intoxicated

undertook to dock the vessel. Irrefragably, Kavankov was fully aware of the

or manifestly incompetent. He is still in command of the vessel, except so

bulk and size of the vessel and its cargo as well as the weight of the

far as her navigation is concerned, and bound to see that there is a

vessel. Kavankov categorically admitted that, when the anchor and two (2)

sufficient watch on deck, and that the men are attentive to their duties.

shackles were dropped to the sea floor, the claws of the anchor did not
hitch on to any hard object in the seabed. The momentum of the vessel

xxx (N)otwithstanding the pilot has charge, it is the duty of the master to

was not arrested. The use of the two (2) tugboats was insufficient. The

prevent accident, and not to abandon the vessel entirely to the pilot; but

momentum of the vessel, although a little bit arrested, continued (sic) the

that there are certain duties he has to discharge (notwithstanding there is a

vessel going straightforward with its bow towards the port (Exhibit "A-1").

pilot on board) for the benefit of the owners. x x x that in well conducted

There was thus a need for the vessel to move "full-astern" and to drop the

ships the master does not regard the presence of a duly licensed pilot in

other anchor with another shackle or two '(2), for the vessel to avoid hitting

compulsory pilot waters as freeing him from every obligation to attend to

the pier. Kavankov refused to act even as Gavino failed to act. Even as

the safety of the vessel; but that, while the master sees that his officers and

Gavino gave mere "half-astern" order, Kavankov supinely stood by. The

crew duly attend to the pilot's orders, he himself is bound to keep a vigilant

vessel was already about twenty (20) meters away from the pier when

eye on the navigation of the vessel, and, when exceptional circumstances

Gavino gave the 'full-astern" order. Even then, Kavankov did nothing to

exist, not only to urge upon the pilot to use every precaution, but to insist

prevent the vessel from hitting the pier simply because he relied on the

upon, such being taken."[79] (Italics for emphasis.)

competence and plan of Gavino. While the "full-astern" maneuver

In Jure vs. United Fruit Co.,[80] which, like the present petitions, involved

momentarily arrested the momentum of the vessel, it was, by then, too late. compulsory pilotage, with a similar scenario where at and prior to the time
All along, Kavankov stood supinely beside Gavino, doing nothing but relay

of injury, the vessel was in the charge of a pilot with the master on the

the commands of Gavino. Inscrutably, then, Kavankov was negligent.

bridge of the vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while a

xxx

xxx

xxx

pilot, who is required by law to be accepted, is in discharge of his functions.

x x x It is the duty of the master to interfere in cases of the pilot's

The stark incompetence of Kavankov is competent evidence to prove the

intoxication or manifest incapacity, in cases of danger which he does not

unseaworthiness of the vessel. It has been held that the incompetence of

foresee, and in all cases of great necessity . The master has the same

the navigator, the master of the vessel or its crew makes the vessel

power to displace the pilot that he has to remove any subordinate officer of

unseaworthy (Tug Ocean Prince versus United States of America, 584 F.

the vessel. He may exercise it, or not, according to his discretion. There

2nd, page 1151). Hence, the Appellant FESC is likewise liable for the

was evidence to support findings that plaintiff's injury was due to the

damage sustained by the Appellee."[77]

negligent operation of the Atenas, and that the master of that vessel was

We find strong and well-reasoned support in time-tested American

negligent in failing to take action to avoid endangering a vessel situated as

maritime jurisprudence, on which much of our laws and jurisprudence on

the City of Canton was and persons or property thereon.

the matter are based, for the conclusions of the Court of Appeals adjudging
both Capt. Gavino and Capt. Kabankov negligent.

A phase of the evidence furnished support for the inferences x x x that he

negligently failed to suggest to the pilot the danger which was disclosed,
25 | P a g e

Torts 5

and means of avoiding such danger; and that the master's negligence in
failing to give timely admonition to the pilot proximately contributed to the

In general, a pilot is personally liable for damages caused by his own

injury complained of. We are of opinion that the evidence mentioned

negligence or default to the owners of the vessel, and to third parties for

tended to prove conduct of the pilot, known to the master, giving rise to a

damages sustained in a collision. Such negligence of the pilot in the

case of danger or great necessity, calling for the intervention of the master.

performance of duty constitutes a maritime tort. [87] At common law, a

A master of a vessel is not Without fault in acquiescing in conduct of a pilot

shipowner is not liable for injuries inflicted exclusively by the negligence of

which involves apparent and avoidable danger, whether such danger is to

a pilot accepted by a vessel compulsorily.[88] The exemption from liability

the vessel upon which the pilot is, or to another vessel, or persons or

for such negligence shall apply if the pilot is actually in charge and solely in

property thereon or on shore. (Italics ours.)

fault. Since, a pilot is responsible only for his own personal negligence, he

Still in another case involving a nearly identical setting, the captain of a

cannot be held accountable for damages proximately caused by the default

vessel alongside the compulsory pilot was deemed to be negligent, since,

of others,[89] or, if there be anything which concurred with the fault of the

in the words of the court, "he was in a position to exercise his superior

pilot in producing the accident, the vessel master and owners are liable.

authority if he had deemed the speed excessive on the occasion in

question. I think it was clearly negligent of him not to have recognized the

Since the colliding vessel is prima facie responsible, the burden of proof is

danger to any craft moored at Gravell Dock and that he should have

upon the party claiming benefit of the exemption from liability. It must be

directed the pilot to reduce his speed as required by the local governmental shown affirmatively that the pilot was at fault, and that there was no fault on
regulations. His failure amounted to negligence and renders the
respondent liable."

[81]

(Italics supplied.) Though a compulsory pilot might be

regarded as an independent contractor, he is at all times subject to the

ultimate control of the ship's master.

[82]

the part of the officers or crew, which might have been conducive to the
damage. The fact that the law compelled the master to take the pilot does
not exonerate the vessel from liability. The parties who suffer are entitled to
have their remedy against the vessel that occasioned the damage, and are
not under necessity to look to the pilot from whom redress is not always

In sum, where a compulsory pilot is in charge of a ship, the master being

had for compensation. The owners of the vessel are responsible to the

required to permit him to navigate it, if the master observes that the pilot is

injured party for the acts of the pilot, and they must be left to recover the

incompetent or physically incapable, then it is the duty of the master to

amount as well as they can against him. It cannot be maintained that the

refuse to permit the pilot to act. But if no such reasons are present, then

circumstance of having a pilot on board, and acting in conformity to his

the master is justified in relying upon the pilot, but not blindly. Under the

directions operate as a discharge of responsibility of the owners. [90] Except

circumstances of this case, if a situation arose where the master,

insofar as their liability is limited or exempted by statute, the vessel or her

exercising that reasonable vigilance which the master of a ship should

owner are liable for all damages caused by the negligence or other wrongs

exercise, observed, or should have observed, that the pilot was so

of the owners or those in charge of the vessel. Where the pilot of a vessel

navigating the vessel that she was going, or was likely to go, into danger,

is not a compulsory one in the sense that the owner or master of the vessel

and there was in the exercise of reasonable care and vigilance an

are bound to accept him, but is employed voluntarily, the owners of the

opportunity for the master to intervene so as to save the ship from danger,

vessel are, all the more, liable for his negligent act.[91]

the master should have acted accordingly.[83] The master of a vessel must
exercise a degree of vigilance commensurate with the circumstances. [84]

In the United States, the owners of a vessel are not personally liable for the
negligent acts of a compulsory pilot, but by admiralty law, the fault or

Inasmuch as the matter of negligence is a question of fact,

[85]

we defer to

the findings of the trial court, especially as this is affirmed by the Court of
Appeals.

[86]

But even beyond that, our own evaluation is that Capt.

negligence of a compulsory pilot is imputable to the vessel and it may be

held liable therefor in rem. Where, however, by the provisions of the statute
the pilot is compulsory only in the sense that his fee must be paid, and is

Kabankov's shared liability is due mainly to the fact that he failed to act

not in compulsory charge of the vessel, there is no exemption from liability.

when the perilous situation should have spurred him into quick and

Even though the pilot is compulsory, if his negligence was not the sole

decisive action as master of the ship. In the face of imminent or actual

cause of the injury, but the negligence of the master or crew contributed

danger, he did not have to wait for the happenstance to occur before

thereto, the owners are liable.[92] But the liability of the ship in rem does not

countermanding or overruling the pilot. By his own admission, Capt.

release the pilot from the consequences of his own negligence. [93] The

Kabankov concurred with Capt. Gavino's decisions, and this is precisely

rationale for this rule is that the master is not entirely absolved of

the reason why he decided not to countermand any of the latter's orders.

responsibility with respect to navigation when a compulsory pilot is in

Inasmuch as both lower courts found Capt. Gavino negligent, by

charge.[94]

expressing full agreement therewith Capt. Kabankov was just as negligent

as Capt. Gavino.

By way of validation and in light of the aforecited guidepost rulings in

26 | P a g e

Torts 5

American maritime cases, we declare that our rulings during the early
years of this century in City of Manila vs. Gambe,

[95]

China Navigation Co.,

which the injury would not have resulted to as great an extent, and that
such cause is not attributable to the person injured. It is no defense to one

Ltd. vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al.[97] have withstood

of the concurrent tortfeasors that the injury would not have resulted from

the proverbial test of time and remain good and relevant case law to this

his negligence alone, without the negligence or wrongful acts of the other

day.

concurrent tortfeasor.[99] Where several causes producing an injury are

concurrent and each is an efficient cause without which the injury would

City of Manila stands for the doctrine that the pilot who was in command

not have happened, the injury may be attributed to all or any of the causes

and complete control of a vessel, and not the owners, must be held

and recovery may be had against any or all of the responsible persons

responsible for an accident which was solely the result of the mistake of

although under the circumstances of the case, it may appear that one of

the pilot in not giving proper orders, and which did not result from the

them was more culpable, and that the duty owed by them to the injured

failure of the owners to equip the vessel with the most modern and

person was not the same. No actor's negligence ceases to be a proximate

improved machinery. In China Navigation Co., the pilot deviated from the

cause merely because it does not exceed the negligence of other actors.

ordinary and safe course, without heeding the warnings of the ship captain.

Each wrongdoer is responsible for the entire result and is liable as though

It was this careless deviation that caused the vessel to collide with a

his acts were the sole cause of the injury.[100]

pinnacle rock which, though uncharted, was known to pilots and local
navigators. Obviously, the captain was blameless. It was the negligence of

There is no contribution between joint tortfeasors whose liability is solidary

the pilot alone which was the proximate cause of the collision. The Court

since both of them are liable for the total damage. Where the concurrent or

could not but then rule that -

successive negligent acts or omissions of two or more persons, although

The pilot in the case at bar having deviated from the usual and ordinary

acting independently, are in combination the direct and proximate cause of

course followed by navigators in passing through the strait in question,

a single injury to a third person, it is impossible to determine in what

without a substantial reason, was guilty of negligence, and that negligence

proportion each contributed to the injury and either of them is responsible

having been the proximate cause of the damages, he is liable for such

for the whole injury. Where their concurring negligence resulted in injury or

damages as usually and naturally flow therefrom. x x x.

damage to a third party, they become joint tortfeasors and are solidarity
liable for the resulting damage under Article 2194[101] of the Civil Code.[102]

x x x (T)he defendant should have known of the existence and location of

the rock upon which the vessel struck while under his control and

As for the amount of damages awarded by the trial court, we find the same

management. x x x.

to be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on

Consistent with the pronouncements in these two earlier cases, but on a

cross and redirect examination, appears to be grounded on practical

slightly different tack, the Court in Yap Tico & Co. exonerated the pilot from

considerations:

liability for the accident where the order's of the pilot in the handling of the
ship were disregarded by the officers and crew of the ship. According to

So that the cost of the two additional piles as well as the (two)
Q
square meters is already included in this -P1,300,999.77.

the Court, a pilot is "x x x responsible for a full knowledge of the channel
and the navigation only so far as he can accomplish it through the officers

Yes sir, everything. It is (the) final cost already.

and crew of the ship, and I don't see that he can be held responsible for

For the eight piles.

Including the reduced areas and other reductions.

(A)nd the two square meters.

Yes sir.

damage when the evidence shows, as it does in this case, that the officers
and crew of the ship failed to obey his orders." Nonetheless, it is possible
for a compulsory pilot and the master of the vessel to be concurrently
negligent and thus share the blame for the resulting damage as Joint
tortfeasors,

[98]

but only under the circumstances obtaining in and

demonstrated by the instant petitions.

In other words, this P1,300,999.77 does not represent only for the
Q
six piles that was damaged as well as the corresponding two piles.
The area was corresponding, was increased by almost two in the

It may be said, as a general rule, that negligence in order to render a

person liable need not be the sole cause of an injury. It is sufficient that his
negligence, concurring with one or more efficient causes other than

actual payment. That was why the contract was decreased, the real
amount was P1,124,627.40 and the final one is P1300,999.77.

Yes, but that P1,300,999.77 included the additional two new posts.

It was increased.

Why was it increased?

plaintiff's, is the proximate cause of the injury. Accordingly, where several

causes combine to produce injuries, a person is not relieved from liability
because he is responsible for only one of them, it being sufficient that the
negligence of the person charged with injury is an efficient cause without
27 | P a g e

Torts 5

The original was 48 and the actual was 46.

Now, the damage was somewhere in 1980. It took place in 1980

and you started the repair and reconstruction in 1982, that took
almost two years?

Berth 4 of the Manila International Port. Co-defendants Far Eastern

Shipping, Capt. Senen Gavino and Manila Pilots Association are solidarity
liable to pay this amount to plaintiff.[104]
The Solicitor General rightly commented that the adjudicated amount of
damages represents the proportional cost of repair and rehabilitation of the

Yes sir.

damaged section of the pier.[105]

May it not happen that by natural factors, the existing damage in

Q

1980 was aggravated for the 2 year period that the damage portion
was not repaired?

Except insofar as their liability is limited or exempted by statute, the vessel

or her owners are liable for all damages caused by the negligence or other

I don't think so because that area was at once marked and no

wrongs of the owners or those in charge of the vessel. As a general rule,

vehicles can park, it was closed.

the owners or those in possession and control of a vessel and the vessel

Even if or even natural elements cannot affect the damage?

are liable for all natural and proximate damages caused to persons or

Cannot, sir.

property by reason of her negligent management or navigation.[106]

xxxxxxxxx
FESC's imputation of PPA's failure to provide a safe and reliable berthing
You said in the cross-examination that there were six piles
Q

damaged by the accident, but that in the reconstruction of the pier,

PPA drove and constructed 8 piles. Will you explain to us why there
was change in the number of piles from the original number?

place is obtuse, not only because it appears to be a mere afterthought,

being tardily raised only in this petition, but also because there is no
allegation or evidence on record about Berth No. 4 being unsafe and
unreliable, although perhaps it is a modest pier by international standards.

In piers where the piles are withdrawn or pulled out, you cannot re-

There was, therefore, no error on the part of the Court of Appeals in

drive or drive piles at the same point. You have to redesign the

dismissing FESC's counterclaim.

driving of the piles. We cannot drive the piles at the same point
where the piles are broken or damaged or pulled out. We have to

II. G.R. No. 130150

redesign, and you will note that in the reconstruction, we

redesigned such that it necessitated 8 piles.

This consolidated case treats on whether the Court of Appeals erred in

Why not, why could you not drive the same number of piles and on

holding MPA jointly and solidarity liable with its member pilot, Capt.

the same spot?

Gavino, in the absence of employer-employee relationship and in applying

The original location was already disturbed. We cannot get required

bearing capacity. The area is already disturbed.

Customs Administrative Order No. 15-65, as basis for the adjudged

solidary liability of MPA and Capt. Gavino.

Nonetheless, if you drove the original number of piles, six, on

The pertinent provisions in Chapter I of Customs Administrative Order No.
different places, would not that have sustained the same load?
15-65 are:

It will not suffice, sir."[103]

"PAR. XXVII.-- In all pilotage districts where pilotage is compulsory, there

We quote the findings of the lower court with approval:

shall be created and maintained by the pilots or pilots' association, in the

With regards to the amount of damages that is to be awarded to plaintiff,

manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each

the Court finds that the amount of P1,053,300.00 is justified. Firstly, the

pilot thereof for the purpose of paying claims for damages to vessels or

doctrine of res ipsa loquitur best expounded upon in the landmark case of

property caused through acts or omissions of its members while rendered

Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the

in compulsory pilotage service. In Manila, the reserve fund shall be

presumption that in the ordinary course of events the ramming of the dock

P2,000.00 for each pilot.

would not have occurred if proper care was used.

PAR. XXVIII.-- A pilots' association shall not be liable under these
Secondly, the various estimates and plans justify the cost of the port

regulations for damage to any vessel, or other property, resulting from acts

construction price. The new structure constructed not only replaced the

of a member of an association in the actual performance of his duty for a

damaged one but was built of stronger materials to forestall the possibility

greater amount than seventy-five per centum (75%) of its prescribed

of any similar accidents in the future.

reserve fund; it being understood that if the association is held liable for an
amount greater than the amount above-stated, the excess shall be paid by

The Court inevitably finds that the plaintiff is entitled to an award of

the personal funds of the member concerned.

P1,053,300.00 which represents actual damages caused by the damage to

28 | P a g e

Torts 5

PAR. XXXI.-- If a payment is made from the reserve fund of an association

5) If payment is made from the reserve fund of an Association on account

on account of damages caused by a member thereof, and he shall have

of damage caused by a member thereof who is found at fault, he shall

been found at fault, such member shall reimburse the association in the

reimburse the Association in the amount so paid as soon as practicable;

amount so paid as soon as practicable; and for this purpose, not less than

and for this purpose, not less than twenty-five percentum (25%) of his

twenty-five per centum of his dividends shall be retained each month until

dividend shall be retained each month until the full amount has been

the full amount has been returned to the reserve fund.

returned to the reserve fund. Thereafter, the pilot involved shall be entitled
to his full dividend.

PAR. XXXIV. - Nothing in these regulations shall relieve any pilots'

association or members thereof, individually or collectively, from civil

6) When the reimbursement has been completed as prescribed in the

responsibility for damages to life or property resulting from the acts of

preceding paragraph, the ten percentum (10%) and the interest withheld

members in the performance of their duties.

from the shares of the other pilots in accordance with paragraph (4) hereof

Correlatively, the relevant provisions of PPA Administrative Order No. 03-

shall be returned to them.

85, which timely amended this applicable maritime regulation, state:

c) Liability of Pilots' Association -- Nothing in these regulations shall relieve
Article IV

any Pilots' Association or members thereof, individually or collectively, from

SEC. 17. Pilots' Association -- The Pilots in a Pilotage District shall

any civil, administrative and/or criminal responsibility for damages to life or

organize themselves into a Pilots' Association or firm, the members of

property resulting from the individual acts of its members as well as those

which shall promulgate their own By-Laws not in conflict with the rules and

of the Association's employees and crew in the performance of their duties.

regulations promulgated by the Authority. These By-Laws shall be

submitted not later than one (1) month after the organization of the Pilots'
Association for approval by the General Manager of the Authority.
Subsequent amendments thereto shall likewise be submitted for approval.

The Court of Appeals, while affirming the trial court's finding of solidary
liability on the part of FESC, MPA and Capt. Gavino, correctly based
MPA's liability not on the concept of employer-employee relationship
between Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:

SEC. 25. Indemnity Insurance and Reserve Fund--

The Appellant MPA avers that, contrary to the findings and disquisitions of
the Court a quo, the Appellant Gavino was not and has never been an

a) Each Pilots' Association shall collectively insure its membership at the

rate of P50,000.00 each member to cover in whole or in part any liability
arising from any accident resulting in damage to vessel(s), port facilities
and other properties and/or injury to persons or death which any member
may have caused in the course of his performance of pilotage duties. x x x.

employee of the MPA but was only a member thereof. The Court a quo, it
is noteworthy,, did not state the factual basis on which it anchored its
finding that Gavino was the employee of MPA. We are in accord with
MPA's pose. Case law teaches Us that, for an employer-employee
relationship to exist the confluence of the following elements must be
established: (1) selection and engagement of employees; (2) the payment

b) The Pilotage Association shall likewise set up and maintain a reserve

fund which shall answer for any part of the liability referred to in the
immediately preceding paragraph which is left unsatisfied by the insurance

of wages; (3) the power of dismissal; (4) the employer's power to control
the employees with respect to the means and method by which the work is
to be performed (Ruga versus NLRC, 181SCRA 266).

proceeds, in the following manner:

xxx

xxx

xxx

1) Each pilot in the Association shall contribute from his own account an
amount of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the
reserve fund. This fund shall not be considered part of the capital of the
Association nor charged as an expense thereof.

The liability of MPA for damages is not anchored on Article 2180 of the
New Civil Code as erroneously found and declared by the Court a quo but
under the provisions of Customs Administrative Order No. 15-65, supra, in
tandem with the by-laws of the MPA."[107]

2) Seventy-five percent (75%) of the reserve fund shall be set aside for
use, in the payment of damages referred to above incurred in the actual
performance of pilots' duties and the excess shall be paid from the
personal funds of the member concerned.

There being no employer-employee relationship, clearly Article 2180[108] of

the Civil Code is inapplicable since there is no vicarious liability of an
employer to speak of. It is so stated in American law, as follows:
The well-established rule is that pilot associations are immune to vicarious
liability for the tort of their members. They are not the employer of their

xxx

xxx

xxx

members and exercise no control over them once they take the helm of the

29 | P a g e

Torts 5

vessel. They are also not partnerships because the members do not

(75%) of Reserve Fund" is unnecessary because the liability of MPA under

function as agents for the association or for each other. Pilots' associations

Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to

are also not liable for negligently assuring, the competence of their

seventy-five percent (75%) of its prescribed reserve fund, any amount of

members because as professional associations they made no guarantee of liability beyond that being for the personal account of the erring pilot and
the professional conduct of their members to the general public.[109]

subject to reimbursement in case of a finding of fault by the member

Where under local statutes and regulations, pilot associations lack the

concerned. This is clarified by the Solicitor General:

necessary legal incidents of responsibility, they have been held not liable

Moreover, contrary to petitioners pretensions, the provisions of Customs

for damages caused by the default of a member pilot.

[110]

Whether or not

the members of a pilots' association are in legal effect a copartnership

Administrative Order No. 15-65 do not limit the liability of petitioner as a

pilots' association to an absurdly small amount of seventy-five per centum

depends wholly on the powers and duties of the members in relation to one (75%) of the member pilots' contribution of P2,000.00 to the reserve fund.
another under the provisions of the governing statutes and regulations. The The law speaks of the entire reserve fund required to be maintained by the
relation of a pilot to his association is not that of a servant to the master,

pilots' association to answer (for) whatever liability arising from the tortious

but of an associate assisting and participating in a common purpose.

act of its members. And even if the association is held liable for an amount

Ultimately, the rights and liabilities between a pilots' association and an

greater than the reserve fund, the association may not resist the liability by

individual member depend largely upon the constitution, articles or by-laws

claiming to be liable only up to seventy-five per centum (75%) of the

of the association, subject to appropriate government regulations.

[111]

reserve fund because in such instance it has the right to be reimbursed by

the offending member pilot for the excess."[113]

No reliance can be placed by MPA on the cited American rulings as to

WHEREFORE, in view of all of the foregoing, the consolidated petitions for

immunity from liability of a pilots' association in light of existing positive

review are DENIED and the assailed decision of the Court of Appeals is

regulation under Philippine law. The Court of Appeals properly applied the

AFFIRMED in toto.

clear and unequivocal provisions of Customs Administrative Order No. 1565. In doing so, it was just being consistent with its finding of the non-

Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically

existence of employer-employee relationship between MPA and Capt.

its associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that

Gavino precludes the application of Article 2180 of the Civil Code.

a repetition of the same or similar acts of heedless disregard of its

undertakings under the Rules shall be dealt with more severely.

True, Customs Administrative Order No. 15-65 does not categorically

characterize or label MPA's liability as solidary in nature. Nevertheless, a

The original members of the legal team of the Office of the Solicitor

careful reading and proper analysis of the correlated provisions lead to the

General assigned to this case, namely, Assistant Solicitor General Roman

conclusion that MPA is solidarity liable for the negligence of its member

G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and

pilots, without prejudice to subsequent reimbursement from the pilot at

WARNED that a repetition of the same or similar acts of unduly delaying

fault.

proceedings due to delayed filing of required pleadings shall also be dealt

with more stringently.

Article 1207 of the Civil Code provides that there is solidary liability only
when the obligation expressly so states, or when the law or the nature of

The Solicitor General is DIRECTED to look into the circumstances of this

the obligation requires solidarity. Plainly, Customs Administrative Order No. case and to adopt provident measures to avoid a repetition of this incident
15-65, which as an implementing rule has the force and effect of law, can

and which would ensure prompt compliance with orders of this Court

validly provide for solidary liability. We note the Solicitor General's

regarding the timely filing of requisite pleadings, in the interest of just,

comment hereon, to wit:

speedy and orderly administration of justice.

x x x Customs Administrative Order No. 15-65 may be a mere rule and

regulation issued by an administrative agency pursuant to a delegated

Let copies of this decision be spread upon the personal records of the

authority to fix "the details" in the execution or enforcement of a policy set

lawyers named herein in the Office of the Bar Confidant.

out in the law itself. Nonetheless, said administrative order, which adds to
the procedural or enforcing provisions of substantive law, is legally binding

SO ORDERED.

and receives the same statutory force upon going into effect. In that sense,
it has equal, not lower, statutory force and effect as a regular statute
passed by the legislature."[112]
MPA's prayer for modification of the appellate court's decision under review
by exculpating petitioner MPA "from liability beyond seventy-five percent
30 | P a g e

Torts 5

RUKS KONSULT AND CONSTRUCTION, PETITIONER, VS. ADWORLD

*

SIGN AND ADVERTISING CORPORATION AND TRANSWORLD

MEDIA ADS, INC., RESPONDENTS.

For its part, Comark denied liability for the damages caused to Adworlds
billboard structure, maintaining that it does not have any interest on
Transworlds collapsed billboard structure as it only contracted the use of
the same. In this relation, Comark prayed for exemplary damages from

DECISION

Transworld for unreasonably including it as a party-defendant in the

complaint.[8]

PERLAS-BERNABE, J.:
Lastly, Ruks admitted that it entered into a contract with Transworld for the
Assailed in this petition for review on certiorari[1] are the Decision[2] dated

construction of the latters billboard structure, but denied liability for the

November 16, 2011 and the Resolution[3] dated December 10, 2012 of the

damages caused by its collapse. It contended that when Transworld hired

Court of Appeals (CA) in CA-G.R. CV No. 94693 which affirmed the

its services, there was already an existing foundation for the billboard and

[4]

Decision dated August 25, 2009 of the Regional Trial Court of Makati

that it merely finished the structure according to the terms and conditions of

City, Branch 142 (RTC) in Civil Case No. 03-1452 holding, inter alia,

its contract with the latter.[9]

petitioner Ruks Konsult and Construction (Ruks) and respondent

Transworld Media Ads, Inc. (Transworld) jointly and severally liable to

The RTC Ruling

respondent Adworld Sign and Advertising Corporation (Adworld) for

damages.

In a Decision[10] dated August 25, 2009, the RTC ultimately ruled in

Adworlds favor, and accordingly, declared, inter alia, Transworld and Ruks
The Facts

jointly and severally liable to Adworld in the amount of P474,204.00 as

actual damages, with legal interest from the date of the filing of the

The instant case arose from a complaint for damages filed by Adworld

complaint until full payment thereof, plus attorneys fees in the amount of

against Transworld and Comark International Corporation (Comark) before

P50,000.00.[11]

[5]

the RTC. In the complaint, Adworld alleged that it is the owner of a 75 ft.
x 60 ft. billboard structure located at EDSA Tulay, Guadalupe, Barangka

The RTC found both Transworld and Ruks negligent in the construction of

Mandaluyong, which was misaligned and its foundation impaired when, on

the collapsed billboard as they knew that the foundation supporting the

August 11, 2003, the adjacent billboard structure owned by Transworld and same was weak and would pose danger to the safety of the motorists and
used by Comark collapsed and crashed against it. Resultantly, on August

the other adjacent properties, such as Adworlds billboard, and yet, they did

19, 2003, Adworld sent Transworld and Comark a letter demanding

not do anything to remedy the situation.[12] In particular, the RTC explained

payment for the repairs of its billboard as well as loss of rental income. On

that Transworld was made aware by Ruks that the initial construction of the

August 29, 2003, Transworld sent its reply, admitting the damage caused

lower structure of its billboard did not have the proper foundation and

by its billboard structure on Adworlds billboard, but nevertheless, refused

would require additional columns and pedestals to support the structure.

and failed to pay the amounts demanded by Adworld. As Adworlds final

Notwithstanding, however, Ruks proceeded with the construction of the

demand letter also went unheeded, it was constrained to file the instant

billboards upper structure and merely assumed that Transworld would

complaint, praying for damages in the aggregate amount of P474,204.00,

reinforce its lower structure.[13] The RTC then concluded that these

comprised of P281,204.00 for materials, P72,000.00 for labor, and

negligent acts were the direct and proximate cause of the damages

P121,000.00 for indemnity for loss of income.

[6]

suffered by Adworlds billboard.[14]

In its Answer with Counterclaim, Transworld averred that the collapse of its

Aggrieved, both Transworld and Ruks appealed to the CA. In a Resolution

billboard structure was due to extraordinarily strong winds that occurred

dated February 3, 2011, the CA dismissed Transworlds appeal for its

instantly and unexpectedly, and maintained that the damage caused to

failure to file an appellants brief on time.[15] Transworld elevated its case

Adworlds billboard structure was hardly noticeable. Transworld likewise

before the Court, docketed as G.R. No. 197601.[16] However, in a

filed a Third-Party Complaint against Ruks, the company which built the

Resolution[17] dated November 23, 2011, the Court declared the case

collapsed billboard structure in the formers favor. It was alleged therein

closed and terminated for failure of Transworld to file the intended petition

that the structure constructed by Ruks had a weak and poor foundation not

for review on certiorari within the extended reglementary period.

suited for billboards, thus, prone to collapse, and as such, Ruks should

Subsequently, the Court issued an Entry of Judgment[18] dated February

ultimately be held liable for the damages caused to Adworlds billboard

22, 2012 in G.R. No. 197601 declaring the Courts November 23, 2011

structure.[7]

Resolution final and executory.

31 | P a g e

Torts 5

The CA Ruling

the protection of the interest of another person that degree of care,

precaution, and vigilance which the circumstances justly demand, whereby

In a Decision[19] dated November 16, 2011, the CA denied Rukss appeal

such other person suffers injury.[28]

and affirmed the ruling of the RTC. It adhered to the RTCs finding of
negligence on the part of Transworld and Ruks which brought about the

In this case, the CA correctly affirmed the RTCs finding that Transworlds

damage to Adworlds billboard. It found that Transworld failed to ensure

initial construction of its billboards lower structure without the proper

that Ruks will comply with the approved plans and specifications of the

foundation, and that of Rukss finishing its upper structure and just merely

structure, and that Ruks continued to install and finish the billboard

assuming that Transworld would reinforce the weak foundation are the two

structure despite the knowledge that there were no adequate columns to

(2) successive acts which were the direct and proximate cause of the

[20]

support the same.

damages sustained by Adworld. Worse, both Transworld and Ruks were

fully aware that the foundation for the formers billboard was weak; yet,

Dissatisfied, Ruks moved for reconsideration,

[22]

denied in a Resolution

[21]

which was, however,

neither of them took any positive step to reinforce the same. They merely
relied on each others word that repairs would be done to such foundation,

dated December 10, 2012, hence, this petition.

but none was done at all. Clearly, the foregoing circumstances show that
On the other hand, Transworld filed another appeal before the Court,
docketed as G.R. No. 205120.

[23]

both Transworld and Ruks are guilty of negligence in the construction of

the formers billboard, and perforce, should be held liable for its collapse

However, the Court denied outright

Transworlds petition in a Resolution

[24]

and the resulting damage to Adworlds billboard structure. As joint

dated April 15, 2013, holding that

the same was already bound by the dismissal of its petition filed in G.R.

tortfeasors, therefore, they are solidarily liable to Adworld. Verily, [j]oint

No. 197601.

tortfeasors are those who command, instigate, promote, encourage,

advise, countenance, cooperate in, aid or abet the commission of a tort, or
The Issue Before the Court

approve of it after it is done, if done for their benefit. They are also referred
to as those who act together in committing wrong or whose acts, if

The primordial issue for the Courts resolution is whether or not the CA

independent of each other, unite in causing a single injury. Under Article

correctly affirmed the ruling of the RTC declaring Ruks jointly and severally

2194[29] of the Civil Code, joint tortfeasors are solidarily liable for the

liable with Transworld for damages sustained by Adworld.

resulting damage. In other words, joint tortfeasors are each liable as

principals, to the same extent and in the same manner as if they had
performed the wrongful act themselves.[30] The Courts pronouncement in

The Courts Ruling

People v. Velasco[31] is instructive on this matter, to wit:[32]

The petition is without merit.
Where several causes producing an injury are concurrent and each is
an efficient cause without which the injury would not have happened,

At the outset, it must be stressed that factual findings of the RTC, when

the injury may be attributed to all or any of the causes and recovery

affirmed by the CA, are entitled to great weight by the Court and are
deemed final and conclusive when supported by the evidence on record.

[25]

may be had against any or all of the responsible persons although

Absent any exceptions to this rule such as when it is established that the

under the circumstances of the case, it may appear that one of them was

trial court ignored, overlooked, misconstrued, or misinterpreted cogent

more culpable, and that the duty owed by them to the injured person was

facts and circumstances that, if considered, would change the outcome of

not same. No actors negligence ceases to be a proximate cause merely

the case

[26]

such findings must stand.

because it does not exceed the negligence of other actors. Each

wrongdoer is responsible for the entire result and is liable as though his

After a judicious perusal of the records, the Court sees no cogent reason to acts were the sole cause of the injury.
deviate from the findings of the RTC and the CA and their uniform
conclusion that both Transworld and Ruks committed acts resulting in the

There is no contribution between joint [tortfeasors] whose liability is

collapse of the formers billboard, which in turn, caused damage to the

solidary since both of them are liable for the total damage. Where the

adjacent billboard of Adworld.

concurrent or successive negligent acts or omissions of two or more

persons, although acting independently, are in combination the direct

Jurisprudence defines negligence as the omission to do something which a

and proximate cause of a single injury to a third person, it is

reasonable man, guided by those considerations which ordinarily regulate

impossible to determine in what proportion each contributed to the

the conduct of human affairs, would do, or the doing of something which a

injury and either of them is responsible for the whole injury. x x x.

prudent and reasonable man would not do.

[27]

It is the failure to observe for

(Emphases and underscoring supplied)

32 | P a g e

Torts 5

In conclusion, the CA correctly affirmed the ruling of the RTC declaring

Ruks jointly and severally liable with Transworld for damages sustained by
Adworld.

WHEREFORE, the petition is DENIED. The Decision dated November 16,

2011 and the Resolution dated December 10, 2012 of the Court of Appeals
in CA-G.R. CV No. 94693 are hereby AFFIRMED.

SO ORDERED.

33 | P a g e

Torts 5

MANILA ELECTRIC COMPANY, PETITIONER, VS. SOTERO

be kept three feet from the building.' Appellant contends that in applying

REBIOQUILLO, IN HIS OWN BEHALF AND AS GUARDIAN OF THE

said regulations to the case at bar the reckoning should not be from the

MINORS MANUEL, BENJAMIN, NESTOR, MLLAGROS, CORAZON,

edge of the 'media agua' but from the side of the house and that, thus

CLEMENTE AND AURORA, ALL SURNAMED MAGNO, SALUD

measured, the distance was almost 7 feet, or more than the minimum

MAGNO, AND THE COURT OF APPEALS (SECOND DIVISION),

prescribed. This contention is manifestly groundless, for not only is a

RESPONDENTS.

'media agua' an integral part of the building to which it is attached but to

exclude it in measuring the distance would defeat the purpose of the

DECISION

regulation. Appellant points out, nevertheless, that even assuming that the
distance, within the meaning oft the city regulations, should be measured

MONTEMAYOR, J.:

from the edge of the "media agua', the fact that In the case of the house
involved herein such distance was actually less than 3 feet Was due to the

On August 22, 1950, Efren Magno went to the 3-story house of Antonio

fault of the owner of said house, because the city authorities gave him a

Penaloza, his stepbrother, located on Rodriguez Lanuza street, Manila, to

permit to construct a 'media agua' only one meter or 39% inches wide, but

repair a "media agua" said to be in a leaking condition. The "media agua"

instead he built one having a width of 65% inches, 17% inches more than

was just below the window of the third story. Standing on said "media

the width permitted by the authorities, thereby reducing the distance to the

agua", Magno received from his son thru that window a 3' X 6' galvanized

electric wire to less than the prescribed minimum of 3 feet.

iron sheet to cover the leaking portion, turned around and in doing so the
lower end of the iron sheet came into contact with the electric wire of the

"It is a fact that the owner of the house exceeded the limit fixed in the

Manila Electric Company (later referred to as the Company) strung parallel

permit given to him by the city authorities for the construction of the 'media

to the edge of the "media agua" and 21/2 feet from it, causing his death by

agua', and that if he .had not done so appellants wire would have been

electrocution. His widow and children filed suit to recover damages from

11% (inches) more than file required distance of three feet from the edge of

the company. After hearing, the trial court rendered judgment in their

the 'media agua'. It is also a fact, however, that after the 'media agua' was

favorP10,000 as compensatory damages; P784 as actual damages;

constructed the owner was given a final permit of occupancy of the house.

P2,000 as moral and exemplary damages; and P3,000 as attorney's fees,

***

with costs. On appeal to the Court of Appeals, tha latter affirmed the
judgment with slight modification by reducing the attorney's fees from

"* * * The wire was an exposed, high tension wire carrying a load of 3,600

P3,000 to P1,000 with costs. The electric company has appealed said

volts. There was, according to appellant, no insulation that could have

decision to us.

rendered it safe, first, because there is no insulation material in commercial

use for such kind of wire; and secondly, because the only insulation

The findings of fact made by the Court of Appeals which are conclusive are

material that may be effective is still in the experimental stage of

stated in the following portions of its decision which we reproduce below:

development and, anyway, its costs would be prohibitive. * * *."

"The electric wire in question was an exposed, uninsulated primary wire

The theory followed by the appellate court in finding for the plaintiff is that

stretched between poles on the street and carrying a. charge of 3,600

although the owner of the house in constructing the "media agua" in

volts. It was installed there some two years before Penaloza's house was

question exceeded the limits fixed in the permit, still, after making that

constructed. The record shows that during the construction of said house a

"media agua", its construction though illegal, was finally approved because

similar incident took place, although fortunately with much less tragic

he was given a final permit to occupy the house; that it was the company

consequences. A piece of wood which a carpenter was holding happened

that was at fault and was guilty of negligence because although the electric

to come in contact with the same wire, producing some sparks. The owner

wire in question had been installed long before the construction of the

of the house forthwith complained to defendant about the danger which the

house and in accordance with the ordinance fixing a minimum of 3 feet,

wire presented, and as' a result defendant moved one end of the wire

mere compliance with the regulations does ,not satisfy the requirement of

farther from the house by means of a brace, but left the other end where it

due diligence nor avoid the need for adopting such other precautionary

was. '

measures as may be warranted; that negligence cannot be determined by

a simple matter of inches; that all that the city did was to prescribe certain

"At any rate, as revealed by the ocular inspection of the premises ordered

minimum conditions and that just because the ordinance required that

by the trial court, the distance from the electric wire to the edge of the

primary electric wires should be not less than 3 feet from any house, the

'media agua' on which the deceased was making repairs was only 30

obligation of due diligence is not fulfilled by placing such wires at a

inches or 2% feet. Regulations of the City of Manila required that 'all wires

distance of 3 feet and one inch, regardless of other factors. The appellate
34 | P a g e

Torts 5

court, however, refrained from stating or suggesting what other

high voltage and uninsulated as they were, but the claim of the company

precautionary measures could and should have been adopted.

and the reasons given by it for not insulating said wires were unrefuted as
we gather from the findings of the Court of Appeals, and so we have to

After a careful study and discussion of the case and the circumstances

accept them as satisfactory. Consequently, we may not hold said com-

surrounding the same, we are inclined to agree to the contention of

pany as guilty of negligence or wanting in due diligence in failing to insulate

petitioner Company that the death of Magno was primarily caused by his

said wires. As to their proximity to the house it is to be supposed that that

own negligence and in some measure by the too close proximity of the

distance of 3 feet was considered sufficiently safe by the technical men of

"media agua" or rather its edge to the electric wire of the company by

the city such as its electrician or engineer. Of course, a greater distance of

reason of the violation of the original permit given by the city and the

say 6 feet or 12 feet would have increased the margin of safety but other

subsequent approval of said illegal construction of the "media agua". We

factors had to be considered such as that the wires could not be strung or

fail to see how the Company could be held guilty of negligence or as

the posts supporting them could not be located too far toward the middle of

lacking in due diligence. Although the city ordinance called for a distance of the street. Thus, the real cause of the accident or death was the reckless
3 feet of its wires from any building, there was actually a distance of 7 feet

or negligent act of Magno himself. When he was called by his stepbrother

and 2% inches of the wires from the side of the house of Penaloza. Even

to repair the "meclia agua" just below the third story window, it is to be

considering said regulation distance of 3 feet as referring not to the side of

presumed that due to his age and experience he was qualified to do so.

a building, but to any projecting part thereof, such as a "media agua" had

Perhaps he was a tinsmith or carpenter and had had training and

the house owner followed the terms of the permit given him by the city for

experience for the job. So, he could not have been entirely a stranger to

the construction of his "media agua", namely, one meter or 39 3/8 inches

electric wires and the danger lurking in them. But unfortunately, in the

wide, the. distance from the wires to the edge of said "media agua" would

instant care, his training and experience failed him, and forgetting where he

have been 3 feet and 11 3/8 inches. In fixing said one meter width for the

was standing, holding the 6-feet iron sheet with both hands and at arms

"media agua" the city authorities must have wanted to preserve the

length, evidently without looking, and throwing all prudence and discretion

distance of at least 3 feet between the wires and any portion of a building.

to the winds, he turned around swinging his arms with the motion of his

Unfortunately, however, the house owner disregarding the permit,

body, thereby causing his own electrocution.

exceeded the one meter fixed by the same by 17% inches and leaving only
a distance of 24 feet between the "Media agua" as illegally constructed and In support of its theory and holding that defendant-appellant was liable for
the electric wires. And added to this violation of the permit by the house

damages the Court of Appeals cites the case of Astudillo vs. Manila

owner, was its approval by the city through its agent, possibly an inspector.

Electric Co., 55 Phil., 427. We do not think the case is exactly applicable.

Surely we cannot lay these serious violations of a city ordinance and permit There, the premises involved was that elevated portion or top of the walls
at the door of the Company, guiltless of breach of any ordinance or

of Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the

regulation. The Company cannot be expected to be always on the lookout

Court, it was "a public place where persons come to stroll, to rest and to

for any illegal construction which reduces the distance between its wires

enjoy themselves". The electric company was clearly negligent in placing

and said construction, and after finding that said distance of 3 feet had

its wires so near the place that without much difficulty or exertion, a person

been reduced, to change the stringing or installation of its wires so as to

by stretching his hand out could touch them. A boy named Astudillo,

preserve said distance. It would be much easier for the City, or rather it is

placing one foot on a projection,, reached out and actually grasped the

its duty, to be ever on the alert and to see to it that.its ordinances are

electric wire and was electrocuted. The person electrocuted in said case

strictly followed by house owners and to condemn or disapprove all illegal

was a boy who was in no position to realize the danger. In the present

constructions. Of course, in the present case, the viola- tion of the permit

case, however, the wires were well high over the street where there was no

for the construction of the "media agua" was not the direct cause of the

possible danger to pedestrians. The only possible danger was to persons

accident. It merely contributed to it. Had said "media agua" been only one

standing on the "media agua", but a "media agua" can hardly be

meter wide as allowed by the permit, Magno standing on it, would

considered a public place where persons usually gather. Moreover, a

instinctively have stayed closer to or hugged the side of the house in order

person standing on the ''media agua" could not have reached the wires

to keep a safe margin between the edge of the "media agua" and the

with his hands alone. It was necessary , as was done by Magno to hold

yawning , 2-story distance or height from the ground, and possibly if not

something long enough to reach the wire. Furthermore, Magno was not a

probably avoided the fatal contact between the lower end of the iron sheet

boy or a person immature but the father of a family, supposedly a tinsmith

and the wires.

trained and experienced in the repair of galvanized iron roofs and "media
agua". Moreover, in that very case of Astudillo vs. Manila Electric Co.,

We realize that the presence of the wires in question quite close to the

supra, the court said that although it is a well-established rule .that the

house or its "media agua" was always a source of danger considering their

liability of electric companies for damages or personal injuries is governed

35 | P a g e

Torts 5

by the rules of negligence, nevertheless such companies are not insurers

We realize that the stringing of wires of such high voltage (3,600 volts),

of the safety of the public.

uninsulated and so close to houses is a constant source of danger, even

death, especially to persons who having occasion to be near said wires, do

But even assuming for a moment that under the facts of the present case

not adopt the necessary precautions. But may be, the City of Manila

the defendant electric company could be considered negligent in installing

authorities and the ;electric company could get together and devise means

its electric wires so close to the house and "media agua" in question, and

of minimizing this danger to the public. Just as the establishment of

in failing to properly insulate those wires (although according to the

pedestrian lanes in city thoroughfares may greatly minimize danger to

unrefuted claim of said company it was impossible to make the insulation

pedestrians because drivers of motor vehicles may expect danger and

of that kind of wire), nevertheless to hold the defendant liable in damages

slow down or even stop and take other necessary precaution upon

for the death of Magno, such Supposed negligence of the company must

approaching said lanes, so, a similar way may possibly be found. Since

have been the proximate and principal cause of the1 accident, because if

these high voltage wires cannot be properly insulated and at reasonable

the act of Magno in turning around and swinging the galvanized iron sheet

cost, they might perhaps be strung only up to the outskirts of the city where

with his hands was the proximate and principal cause of the electrocution,

there are few houses and few pedestrians and there step down to a

then his heirs may not recover. Such was the holding of this Court in the

voltage where the wires carrying the same to the city could be properly

case of Taylor vs. Manila Electric Railroad and Light Company, 16 Phil., 8.

insulated for the better protection of the public

In that case the electric company was found negligent in leaving scattered
on its premises fulminating caps which Taylor, a 15-year old boy found and

In view, of all the foregoing, the appealed decision of the Court of Appeals

carried home. In the course of experimenting with said fulminating caps, he is hereby reversed and the complaint filed against the Company is hereby
opened one of them, held it out with his hands while another boy applied a

dismissed. No costs.

lighted match to it, causing it to explode and injure one of his eyes
eventually causing blindness in said eye. Said this 'tribunal in denying
recovery for the injury:

"* * *, so that while it may be true that these injuries would not have been
incurred but for the negligent act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the proximate
and principal cause of the accident which inflicted the injury."

To us it is clear that the principal and proximate cause of the electrocution

was not the electric wire, evidently a remote cause, but rather the reckless
and negligent act of Magno in turning around and swinging the galvanized
iron sheet without taking any precaution, such as looking back toward the
street and at the wire to avoid its contacting said iron sheet, considering
the lattery length of 6 feet. For a better understanding of the rule on remote
and proximate cause with respect to injuries, we find the following citation
helpful:

"A prior and remote' cause cannot be made the basis of an action if such
remote cause did nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no danger existed
in the condition except because' of the independent cause, such condition
was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the circumstances which result in
injury because of the prior defective condition, such subsequent act or
condition is the proximate cause." (45 C. J. pp. 931-932.)
36 | P a g e

Torts 5

CONSOLACION GABETO, IN HER OWN RIGHT AND AS GUARDIAN

had proceeded up the street to a point in front of the Mission Hospital, the

AD LITEM OF HER THREE CHILDREN, PLAINTIFF AND APPELLEE,

said Gayetano jumped or fell from the rig, and in so doing received injuries

VS. AGATON ARANETA, DEFENDANT AND APPELLANT.

DECISION

from which he soon died.

As to the facts above stated the evidence cannot be said to be materially in

conflict; but there is decided conflict upon the point of the exact relation of

STREET, J.:

the defendant Agaton Araneta, to the runaway. The evidence for the
plaintiff on this point consists chiefly of the testimony of Julio Pagnaya and

This action was instituted in the Court of First Instance of Iloilo by

of Basilio llano. They both say that while yet in the middle of the street, the

Consolacion Gabeto, in her own right as widow of Proceso Gayetano, and

defendant jerked the bridle, which caused the bit to come out of the horse's

as guardian ad litem of the three children, Conchita Gayetano, Rosita

mouth, and Julio says that at that juncture the throatlatch of the bridle was

Gayetano, and Fermin Gayetano, for the purpose of recovering damages

broken. Be this as it may, we are of the opinion that the mere fact that the

incurred by the plaintiff as a result of the death of the said Proceso

defendant interfered with the carromata by stopping the horse in the

Gayetano, supposedly caused by the wrongful act of the defendant Agaton

manner stated would not make him liable for the death of Proceso

Araneta. Upon hearing the evidence, his Honor, Judge L. M. Southworth,

Gayetano; because it is admitted by Julio Pagnaya that he afterwards got

awarded damages to the plaintiff in the amount of P3,000, from which

out of the carromata and went to the horse's head to fix the bridle. The

judgment the defendant appealed.

evidence is furthermore convincing to the effect that, after Julio Pagnaya

alighted, the horse was conducted to the curb and that an appreciable

It appears in evidence that on August 4, 1918, Basilio llano and Proceso

interval of time elapsedsame witnesses say several minutesbefore the

Gayetano took a carromata near Plaza Gay, in the City of Iloilo, with a view

horse started on his career up the street.

to going to a cockpit on Calle Ledesma in the same City. When the driver
of the carromata had turned his horse and started in the direction indicated, It is therefore evident that the stopping of the rig by Agaton Araneta in the
the defendant, Agaton Araneta, stepped out into the street, and laying his

middle of the street was too remote from the accident that presently

hands on the reins, stopped the horse, at the same time protesting to the

ensued to be considered the legal or proximate cause thereof. Moreover,

driver that he himself had called this carromata first. The driver, one Julio

by getting out and taking his post at the head of the horse, the driver was

Pagnaya, replied to the effect that he had not heard or seen the call of

the person primarily responsible for the control of the animal, and the

Araneta, and that he had taken up the two passengers then in the

defendant cannot be charged with liability for the accident resulting from

carromata as the first who had offered employment. At or about the same

the action of the horse thereafter.

time Pagnaya pulled on the reins of the bridle to free the horse from the
control of Agaton Araneta, in order that the vehicle might pass on. Owing,

Julio Pagnaya testifies to one fact which, if it were fully accredited, would

however, to the looseness of the bridle on the horse's head or to the

possibly put a different complexion on the case; for he says that when the

rottenness of the material of which it was made, the bit came out of the

horse was pulled over to the curb, the defendant, by way of emphasizing

horse's mouth; and it became necessary for the driver to get out, which he

his verbal denunciation of Pagnaya, gesticulated with one of his arms and

did, in order to fix the bridle. The horse was then pulled over to near the

incidentally brought his hand down on the horse's nose. This, according to

curb, by one or the otherit makes no difference whichand Pagnaya

Pagnaya, is what made the horse run away. There is no other witness who

tried to fix the bridle.

testifies to this; and it is noteworthy that Basilio llano does not mention it. A
decided preponderance of the evidence in our opinion is against it.

While he was thus engaged, the horse, being free from the control of the
bit, became disturbed and moved forward, in doing which he pulled one of

The evidence indicates that the bridle was old, and the leather of which it

the wheels of the carromata up on the sidewalk and pushed Julio Pagnaya

was made was probably so weak as to be easily broken. Julio Pagnaya

over. After going a few yards further the side of the carromata struck a

had a natural interest in refuting this fact, as well as in exculpating himself

police telephone box which was fixed to a post on the sidewalk, upon

in other respects; and we are of the opinion that the several witnesses who

which the box came down with a crash and frightened the horse to such an

testified for the defendant gave a more credible account of the affair than

extent that he set out at full speed up the street.

the witnesses for the plaintiff. According to the witnesses for the defendant,
it was Julio who jerked the rein, thereby causing the bit to come out of the

Meanwhile one of the passengers, to wit, Basilio llano, had alighted while

horse's mouth; and they say that Julio, after alighting, led the horse over to

the carromata was as yet alongside the sidewalk; but the other, Proceso

the curb, and proceeded to fix the bridle; and that in so doing the bridle

Gayetano, had unfortunately retained his seat, and after the runaway horse
37 | P a g e

Torts 5

was slipped entirely off, when the horse, feeling himself free from control,
started to go away as previously stated.

Upon the whole we are constrained to hold that the defendant is not legally
responsible for the death of Proceso Gayetano; and though reluctant to
interfere with the findings of fact of a trial court when there is a conflict of
testimony, the evidence in this case so clearly preponderates in favor of
the defendant, that we have no recourse but to reverse the judgment.

The judgment will therefore be reversed, and the defendant will be

absolved from the complaint; and it is so ordered, without express finding
as to costs of either instance. So ordered.

38 | P a g e

Torts 5

AGUSAN DEL NORTE ELECTRIC COOPERATIVE, INC. (ANECO),

REPRESENTED BY ITS MANAGER ROMEO O. DAGANI, PETITIONER,
VS. ANGELITA BALEN AND SPOUSES HERCULES AND RHEA
LARIOSA, RESPONDENTS.

DECISION

b) That [ANECO] pay [respondent] Angelita E. Balen the sum of Seventy

Two Thousand Pesos (PHP72,000.00) for loss of income for three (3)
years;

c) That [ANECO] pay [respondent] Angelita E. Balen the sum of Fifteen

Thousand Pesos (PHP15,000.00) and another Fifteen Thousand Pesos

NACHURA, J.:

(PHP15,000.00) to [respondent] Hercules A. Lariosa as moral damages, or

a total of Thirty Thousand Pesos (PHP30,000.00);

On appeal is the February 21, 2006 Decision[1] of the Court of Appeals

(CA) in CA-G.R. CV No. 66153, affirming the December 2, 1999 Decision[2]

d) That [ANECO] pay [respondents] Angelita E. Balen and Hercules A.

of the Regional Trial Court (RTC) of Butuan City, Branch 2, as well as its

Lariosa Two Thousand Pesos (PHP2,000.00) each or a total of Four

subsequent Resolution,[3] denying petitioner's motion for reconsideration.

Thousand Pesos (PHP4,000.00) as exemplary damages;

Petitioner Agusan del Norte Electric Cooperative, Inc. (ANECO) is a duly

e) That [ANECO] pay [respondents] Angelita E. Balen and Hercules A.

organized and registered consumers cooperative, engaged in supplying

Lariosa Eight Thousand Pesos (PHP8,000.00) each or a total of Sixteen

electricity in the province of Agusan del Norte and in Butuan City. In 1981,

Thousand Pesos [(PHP 16,000.00)] as attorney's fees and the sum of Two

ANECO installed an electric post in Purok 4, Ata-atahon, Nasipit, Agusan

Thousand Pesos (PHP2,000.00) each or a total of Four Thousand Pesos

del Norte, with its main distribution line of 13,000 kilovolts traversing

(PHP4,000.00) for expense of litigation;

Angelita Balen's (Balen's) residence. Balen's father, Miguel, protested the

installation with the District Engineer's Office and with ANECO, but his

f) That [ANECO] pay the costs of this suit;

protest just fell on deaf ears.

g) The dismissal of [ANECO's] counterclaim; [and]
On July 25, 1992, Balen, Hercules Lariosa (Lariosa) and Celestino
Exclamado (Exclamado) were electrocuted while removing the television

h) That the amount of Thirteen Thousand Pesos (PHP13,000.00) given by

antenna (TV antenna) from Balen's residence. The antenna pole touched

ANECO to [respondent] Angelita E. Balen and acknowledged by the latter

ANECO's main distribution line which resulted in their electrocution.

to have been received (pre-trial order, record[s,] pp. 36-37) must be

Exclamado died instantly, while Balen and Lariosa suffered extensive third

deducted from the herein judgment debt.

degree burns.

SO ORDERED.[7]
On appeal, the CA affirmed in toto the RTC ruling. It declared that the

Balen and Lariosa (respondents) then lodged a complaint[4] for damages

proximate cause of the accident could not have been the act or omission of

against ANECO with the RTC of Butuan City.

respondents, who were not negligent in taking down the antenna. The
proximate cause of the injury sustained by respondents was ANECO's

ANECO filed its answer[5] denying the material averments in the complaint,

negligence in installing its main distribution line over Balen's residence.

and raising lack of cause of action as a defense. It posited that the

ANECO should have exercised caution, care and prudence in installing a

complaint did not allege any wrongful act on the part of ANECO, and that

high-voltage line over a populated area, or it should have sought an

respondents acted with gross negligence and evident bad faith. ANECO,

unpopulated area for the said line to traverse. The CA further noted that

thus, prayed for the dismissal of the complaint.

ANECO failed to put a precautionary sign for installation of wires over 600
volts, which is required by the Philippine Electrical Code.[8]

After trial, the RTC rendered a Decision,[6] disposing that:

WHEREFORE, judgment is hereby rendered in favor of [respondents] and

The CA disposed, thus:

against [ANECO], directing, ordaining and ordering -

WHEREFORE, premises considered, the assailed Decision is hereby

AFFIRMED in toto.

a) That [ANECO] pay [respondent] Angelita E. Balen the sum of One

Hundred Thousand Pesos (PHP100,000.00) and [respondent] Hercules A.

SO ORDERED.[9]

Lariosa the sum of Seventy Thousand Pesos (PHP70,000.00) as

ANECO filed a motion for reconsideration, but the CA denied it on May 26,

reimbursement of their expenses for hospitalization, medicines, doctor's

2006.[10]

professional fees, transportation and miscellaneous expenses;

39 | P a g e

Torts 5

Hence, this appeal.

requirement of 3,050 under Part II of the Philippine Electrical Code for the
installation of its main distribution lines above the roofs of buildings or

Indisputably, Exclamado died and respondents sustained injuries from

houses. Although ANECO followed said clearance requirement, the

being electrocuted by ANECO's high-tension wire. These facts are borne

installed lines were high voltage, consisting of open wires, i.e., not covered

out by the records and conceded by the parties.

with insulators, like rubber, and charged with 13, 200 volts. Knowing that it
was installing a main distribution line of high voltage over a populated area,

ANECO, however, denied liability, arguing that the mere presence of the

ANECO should have practiced caution, care and prudence by installing

high-tension wires over Balen's residence did not cause respondents'

insulated wires, or else found an unpopulated area for the said line to

injuries. The proximate cause of the accident, it claims, was respondents'

traverse. The court a quo correctly observed that ANECO failed to show

negligence in removing the TV antenna and in allowing the pole to touch

any compelling reason for the installation of the questioned wires over

the high-tension wires. The findings of the RTC, it argues, patently run

MIGUEL BALEN's house. That the clearance requirements for the

counter to the facts clearly established by the records. ANECO, thus,

installation of said line were met by ANECO does not suffice to exonerate it

contends that the CA committed reversible error in sustaining the findings

from liability. Besides, there is scarcity of evidence in the records showing

of the RTC.

that ANECO put up the precautionary sign: "WARNING-HIGH VOLTAGEKEEP OUT" at or near the house of MIGUEL BALEN as required by the

The argument lacks merit.

Philippine Electrical Code for installation of wires over 600 volts.

Negligence is defined as the failure to observe for the protection of the

Contrary to its stance, it is in fact ANECO which provided the proximate

interests of another person that degree of care, precaution, and vigilance

cause of the injuries of [respondents].

which the circumstances justly demand, by reason of which such other

person suffers injury. The test to determine the existence of negligence in a One of the tests for determining the existence of proximate cause is the
particular case may be stated as follows: Did the defendant in the

foreseeability test, viz.:

performance of the alleged negligent act use reasonable care and caution

x x x - Where the particular harm was reasonably foreseeable at the time of

which an ordinary person would have used in the same situation? If not,

the defendant's misconduct, his act or omission is the legal cause thereof.

then he is guilty of negligence. The existence of negligence in a given case

Foreseeability is the fundamental test of the law of negligence. To be

is not determined by reference to the personal judgment of the actor in the

negligent, the defendant must have acted or failed to act in such a way that

situation before him. The law considers what would be reckless,

an ordinary reasonable man would have realized that certain interests of

blameworthy, or negligent in the man of ordinary intelligence and prudence

certain persons were unreasonably subjected to a general but definite

and determines liability by that norm.

[11]

class of risk which made the actor's conduct negligent, it is obviously the
consequence for the actor must be held legally responsible. Otherwise, the

The issue of who, between the parties, was negligent is a factual issue that

legal duty is entirely defeated. Accordingly, the generalization may be

this Court cannot pass upon, absent any whimsical or capricious exercise

formulated that all particular consequences, that is, consequences which

of judgment by the lower courts or an ample showing that they lacked any

occur in a manner which was reasonably foreseeable by the defendant at

basis for their conclusions.

[12]

The unanimity of the CA and the trial court in

the time of his misconduct are legally caused by his breach of duty x x x.

their factual ascertainment that ANECO's negligence was the proximate

Thus applying aforecited test, ANECO should have reasonably foreseen

cause of the injuries sustained by respondents bars us from supplanting

that, even if it complied with the clearance requirements under the

their findings and substituting them with our own. The function of this Court

Philippine Electrical Code in installing the subject high tension wires above

is limited to the review of the appellate court's alleged errors of law. We are MIGUEL BALEN's house, still a potential risk existed that people would get
not required to weigh all over again the factual evidence already
considered in the proceedings below.

[13]

electrocuted, considering that the wires were not insulated.

ANECO has not shown that it is

entitled to be excepted from this rule. It has not sufficiently demonstrated

Above conclusion is further strengthened by the verity that MIGUEL

any special circumstances to justify a factual review.

BALEN had complained about the installation of said line, but ANECO did
not do anything about it. Moreover, there is scant evidence showing that

That ANECO's negligence was the proximate cause of the injuries

[respondents] knew beforehand that the lines installed by ANECO were live

sustained by respondents was aptly discussed by the CA, which we quote:

wires.

The evidence extant in the record shows that the house of MIGUEL
BALEN already existed before the high voltage wires were installed by

Otherwise stated, the proximate cause of the electrocution of [respondents]

ANECO above it. ANECO had to follow the minimum clearance

was ANECO's installation of its main distribution line of high voltage over
40 | P a g e

Torts 5

the house of MIGUEL BALEN, without which the accident would not have
occurred.

xxxx

x x x the taking down by [respondents] of the antenna in MIGUEL BALEN's

house would not have caused their electrocution were it not for the
negligence of ANECO in installing live wires over the roof of the said
house.[14]
Clearly, ANECO's act of leaving unprotected and uninsulated the main
distribution line over Balen's residence was the proximate cause of the
incident which claimed Exclamado's life and injured respondents Balen and
Lariosa. Proximate cause is defined as any cause that produces injury in a
natural and continuous sequence, unbroken by any efficient intervening
cause, such that the result would not have occurred otherwise.[15]

ANECO's contention that the accident happened only eleven (11) years
after the installation of the high-voltage wire cannot serve to absolve or
mitigate ANECO's liability. As we held in Benguet Electric Cooperative, Inc.
v. Court of Appeals:[16]
[A]s an electric cooperative holding the exclusive franchise in supplying
electric power to the towns of Benguet province, its primordial concern is
not only to distribute electricity to its subscribers but also to ensure the
safety of the public by the proper maintenance and upkeep of its facilities.
It is clear to us then that BENECO was grossly negligent in leaving
unprotected and uninsulated the splicing point between the service drop
line and the service entrance conductor, which connection was only eight
(8) feet from the ground level, in violation of the Philippine Electrical Code.
BENECO's contention that the accident happened only on January 14,
1985, around seven (7) years after the open wire was found existing in
1978, far from mitigating its culpability, betrays its gross neglect in
performing its duty to the public. By leaving an open live wire unattended
for years, BENECO demonstrated its utter disregard for the safety of the
public. Indeed, Jose Bernardo's death was an accident that was bound to
happen in view of the gross negligence of BENECO.
Indeed, both the trial and the appellate courts' findings, which are amply
substantiated by the evidence on record, clearly point to ANECO's
negligence as the proximate cause of the damages suffered by
respondents Balen and Lariosa. No adequate reason has been given to
overturn this factual conclusion. In fine, the CA committed no reversible
error in sustaining the RTC.

WHEREFORE, the petition is DENIED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. CV No. 66153 are
AFFIRMED. Costs against petitioner.

SO ORDERED.

41 | P a g e

Torts 5

PHOENIX CONSTRUCTION, INC. and ARMANDO U.

CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents.

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)

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.

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

Dionisio commenced an action for damages in the Court of First Instance
exemplary damages
of Pampanga basically claiming that the legal and proximate cause of his
and P4,500.00 as attorney's fees
injuries was the negligent manner in which Carbonel had parked the dump
and costs remained untouched.
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
This decision of the Intermediate Appellate Court is now before us on a
under the influence of liquor, without his headlights on and without a curfew petition for review.
pass. Phoenix also sought to establish that it had exercised due rare in the
selection and supervision of the dump truck driver.
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
The trial court rendered judgment in favor of Dionisio and against Phoenix
General Lacuna Street on the basis of which both courts drew the
and Carbonel and ordered the latter:
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
(1) To pay plaintiff jointly and severally the sum of P
15,000.00 for hospital bills and the replacement of the 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
lost dentures of plaintiff;
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
(2) To pay plaintiff jointly and severally the sum of P
Intermediate Appellate Court in its questioned decision casually conceded
1,50,000.-00 as loss of expected income for plaintiff
that Dionisio was "in some way, negligent" but apparently failed to see the
brought about the accident in controversy and which is relevance of Dionisio's negligence and made no further mention of it. We
the result of the negligence of the defendants;
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
(3) To pay the plaintiff jointly and severally the sum of
court could have and should have made findings of fact relating to the
P 10,000. as moral damages for the unexpected and
alleged reckless manner in which Dionisio drove his car that night. The
sudden withdrawal of plaintiff from his lifetime career
petitioners Phoenix and Carbonel contend that if there was negligence in
as a marketing man; mental anguish, wounded feeling,
the manner in which the dump truck was parked, that negligence was
serious anxiety, social humiliation, besmirched
merely a "passive and static condition" and that private respondent
reputation, feeling of economic insecurity, and the
Dionisio's recklessness constituted an intervening, efficient cause
untold sorrows and frustration in life experienced by
determinative of the accident and the injuries he sustained. The need to
plaintiff and his family since the accident in
administer substantial justice as between the parties in this case, without
controversy up to the present time;
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
(4) To pay plaintiff jointly and severally the sum of P
examine for ourselves the record pertaining to Dionisio's alleged
10,000.00 as damages for the wanton disregard of
negligence which must bear upon the liability, or extent of liability, of
defendants to settle amicably this case with the
Phoenix and Carbonel.
42 | P a g e

Torts 5

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 the res 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. 8There 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

43 | P a g e

Torts 5

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:

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
Foreseeable Intervening Causes. If the intervening
role, if any, the common law last clear chance doctrine has to play in a
cause is one which in ordinary human experience is
jurisdiction where the common law concept of contributory negligence as
reasonably to be anticipated or one which the
an absolute bar to recovery by the plaintiff, has itself been rejected, as it
defendant has reason to anticipate under the particular has been in Article 2179 of the Civil Code of the Philippines. 15
circumstances, the defendant may be negligence
among other reasons, because of failure to guard
Is there perhaps a general concept of "last clear chance" that may be
against it; or the defendant may be negligent only for
extracted from its common law matrix and utilized as a general rule in
that reason. Thus one who sets a fire may be required
negligence cases in a civil law jurisdiction like ours? We do not believe so.
to foresee that an ordinary, usual and customary wind
Under Article 2179, the task of a court, in technical terms, is to determine
arising later wig spread it beyond the defendant's own
whose negligence the plaintiff's or the defendant's was the legal or
property, and therefore to take precautions to prevent
proximate cause of the injury. That task is not simply or even primarily an
that event. The person who leaves the combustible or
exercise in chronology or physics, as the petitioners seem to imply by the
explosive material exposed in a public place may
use of terms like "last" or "intervening" or "immediate." The relative location
foresee the risk of fire from some independent source.
in the continuum of time of the plaintiff's and the defendant's negligent acts
... In all of these cases there is an intervening cause
or omissions, is only one of the relevant factors that may be taken into
combining with the defendant's conduct to produce the
account. Of more fundamental importance are the nature of the negligent
result and in each case the defendant's negligence
act or omission of each party and the character and gravity of the risks
consists in failure to protect the plaintiff against that
created by such act or omission for the rest of the community. The
very risk.
petitioners urge that the truck driver (and therefore his employer) should be
absolved from responsibility for his own prior negligence because the
Obviously the defendant cannot be relieved from
unfortunate plaintiff failed to act with that increased diligence which had
liability by the fact that the risk or a substantial and
become necessary to avoid the peril precisely created by the truck driver's
important part of the risk, to which the defendant has
own wrongful act or omission. To accept this proposition is to come too
subjected the plaintiff has indeed come to pass.
close to wiping out the fundamental principle of law that a man must
Foreseeable intervening forces are within the scope
respond for the forseeable consequences of his own negligent act or
original risk, and hence of the defendant's
omission. Our law on quasi-delicts seeks to reduce the risks and burdens
negligence. The courts are quite generally agreed that of living in society and to allocate them among the members of society. To
intervening causes which fall fairly in this category will accept the petitioners' pro-position must tend to weaken the very bonds of
not supersede the defendant's responsibility.
society.
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; ...

Petitioner Carbonel's proven negligence creates a presumption of

negligence on the part of his employer Phoenix 16 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
44 | P a g e

Torts 5

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.
SO ORDERED.

45 | P a g e

Torts 5

DY TEBAN TRADING, INC., Petitioner, vs. JOSE CHING AND/OR

prime mover. The passenger bus hit the rear of the prime mover.[6]

LIBERTY FOREST, INC. and CRESILITO M. LIMBAGA,Respondents.

Ortiz and Catamora only suffered minor injuries. The Nissan van, however,
DECISION

became inoperable as a result of the incident. After the collision, SPO4

Teofilo Pame conducted an investigation and submitted a police traffic

REYES, R.T., J.:

incident investigation report.[7]

THE vehicular collision resulting in damages and injuries in this case could

On October 31, 1995, petitioner Nissan van owner filed a complaint for

have been avoided if the stalled prime mover with trailer were parked

damages[8] against private respondents prime mover owner and driver with

properly and equipped with an early warning device. It is high time We

the RTC in Butuan City. The Joana Paula passenger bus was not

sounded the call for strict enforcement of the law and regulation on traffic

impleaded as defendant in the complaint.

and vehicle registration. Panahon na para mahigpit na ipatupad ang

batas at regulasyon sa trapiko at pagpapatala ng sasakyan.

RTC Disposition

Before Us is a petition for review on certiorari of the Decision[1] of the Court

of Appeals (CA) modifying that[2] of the Regional Trial Court (RTC) in

On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy

Butuan City finding private respondents Liberty Forest, Inc. and Cresilito

Teban Trading, Inc. with a fallo reading:

Limbaga liable to petitioner Dy Teban Trading, Inc. for damages.

WHEREFORE, judgment is hereby rendered directing, ordaining and

ordering:

Facts
a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay, jointly
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo

and solidarily, plaintiff Dy Teban Trading, Inc. the amounts of P279,832.00

Catamora, was driving a Nissan van owned by petitioner Dy Teban

as actual and compensatory damages, P30,000.00 as attorneys fees and

Trading, Inc. along the National Highway in Barangay Sumilihon, Butuan

P5,000.00 as expenses of litigation;

City, going to Surigao City. They were delivering commercial ice to nearby
barangays and municipalities. A Joana Paula passenger bus was cruising

b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;

on the opposite lane towards the van. In between the two vehicles was a
parked prime mover with a trailer, owned by private respondent Liberty

c) That defendant Jose Ching is absolved from any civil liability or the case

Forest, Inc.[3]

against him dismissed;

The night before, at around 10:00 p.m., the prime mover with trailer

d) That the counterclaim of all the defendants is dismissed; and

suffered a tire blowout. The driver, private respondent Cresilito Limbaga,

parked the prime mover askew occupying a substantial portion of the

e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to pay,

national highway, on the lane of the passenger bus. He parked the prime

jointly and solidarily, the costs.

mover with trailer at the shoulder of the road with the left wheels still on the
cemented highway and the right wheels on the sand and gravel shoulder of SO ORDERED.[9]
the highway.[4] The prime mover was not equipped with triangular,

The RTC held that the proximate cause of the three-way vehicular collision

collapsible reflectorized plates, the early warning device required under

was improper parking of the prime mover on the national highway and the

Letter of Instruction No. 229. As substitute, Limbaga placed a banana trunk

absence of an early warning device on the vehicle, thus:

with leaves on the front and the rear portion of the prime mover to warn

The court finds that the proximate cause of the incidents is the negligence

incoming motorists. It is alleged that Limbaga likewise placed kerosene

and carelessness attributable to the defendants. When the trailer being

lighted tin cans on the front and rear of the trailer.[5]

pulled by the prime mover suffered two (2) flat tires at Sumilihon, the prime
mover and trailer were parked haphazardly, as the right tires of the prime

To avoid hitting the parked prime mover occupying its lane, the incoming

mover were the only ones on the sand and gravel shoulder of the highway

passenger bus swerved to the right, onto the lane of the approaching

while the left tires and all the tires of the trailer were on the cemented

Nissan van. Ortiz saw two bright and glaring headlights and the

pavement of the highway, occupying almost the whole of the right lane on

approaching passenger bus. He pumped his break slowly, swerved to the

the direction the prime mover and trailer were traveling. The statement of

left to avoid the oncoming bus but the van hit the front of the stationary

Limbaga that he could not park the prime mover and trailer deeper into the
46 | P a g e

Torts 5

sand and gravel shoulder of the highway to his right because there were

never clarified whether or not Boy Ching and defendant Jose Ching is one

banana plants is contradicted by the picture marked Exhibit F. The picture and the same person.[10] Private respondents appealed to the CA.
CA Disposition

shows that there was ample space on the shoulder. If defendant Limbaga
was careful and prudent enough, he should have the prime mover and

trailer traveled more distance forward so that the bodies of the prime mover On August 28, 2003, the CA reversed the RTC decision, disposing as
and trailer would be far more on the shoulder rather than on the cemented

follows:

highway when they were parked. x x x The court has some doubts on the

WHEREFORE, premises considered, the decision dated August 7, 2001 of

statement of witness-driver Limbaga that there were banana trunks with

the Regional Trial Court, Branch 2, Butuan City in Civil Case No. 4360 is

leaves and lighted tin cans with crude oil placed 3 strides in front of the

hereby PARTLY MODIFIED by absolving the defendants-

prime mover and behind the trailer because the testimonies of witnesses

appellants/appellees of any liability to plaintiffs-appellants/appellees by

Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of the

reason of the incident on July 4, 1995.

ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show that
there were no banana trunks with leaves and lighted tin cans at the scene

The dismissal of the case against Jose Ching, the counterclaim of

of the incident. But even assuming that there were banana trunks with

defendants-appellants/appellees and the money claim of Rogelio Ortiz

leaves but they were placed close to the prime mover and trailer as they

STANDS.

were placed 3 strides away which to the mind of the court is equivalent
approximately to 3 meters and with this distance, approaching vehicles

SO ORDERED.[11]

would have no sufficient time and space to make a complete stop,

In partly reversing or partly modifying the RTC decision, the CA held that

especially if the vehicles are heavy and loaded. If there were lighted tin

the proximate cause of the vehicular collision was the failure of the Nissan

cans, it was not explained by the defendants why the driver, especially

van to give way or yield to the right of way of the passenger bus, thus:

driver witness Ortiz, did not see them.

It was stated that the Joana Paula bus in trying to avoid a head-on collision
with the truck, sideswept the parked trailer loaded with bulldozer.

xxxx
Evidently, the driver of the Joana Paula bus was aware of the presence on
Defendant Liberty Forest, Inc. did not exercise the diligence of a good

its lane of the parked trailer with bulldozer. For this reason, it proceeded to

father of a family in managing and running its business. The evidence on

occupy what was left of its lane and part of the opposite lane. The truck

record shows that it failed to provide its prime mover and trailer with the

occupying the opposite lane failed to give way or yield the right of way to

required early warning devices with reflectors and it did not keep proper

the oncoming bus by proceeding with the same speed. The two vehicles

maintenance and condition of the prime mover and the trailer. The

were, in effect, trying to beat each other in occupying a single lane. The

circumstances show that the trailer were provided with wornout tires and

bus was the first to occupy the said lane but upon realizing that the truck

with only one (1) piece of spare tire. The pictures marked Exhibit 3 and

refused to give way or yield the right of way, the bus, as a precaution,

4 show that two (2) flat tires suffered by the trailer and these two (2) tires

geared to its right where the trailer was parked. Unfortunately, the bus

were attached to one of the two (2) I-beams or axles attached to the rear of

miscalculated its distance from the parked trailer and its rear right side hit

the trailer which axle is very near but behind the other axle and with the

the protruding blade of the bulldozer then on the top of the parked trailer.

location of the 2 I-beams, it would have the other I-beam that would have

The impact of the collision on its right rear side with the blade of the

suffered the flat tires as it has to bear the brunt of weight of the D-8

bulldozer threw the bus further to the opposite lane, landing its rear portion

bulldozer. The bulldozer was not loaded directly above the two (2) I-beams

on the shoulder of the opposite lane.

as 2 I-beams, as a pair, were attached at the far rear end of the trailer.
xxxx
xxxx
Facts of the case reveal that when Ortiz, the driver of the truck, failed to
However, defendant Jose Ching should be absolved of any liability as there give the Joana Paula bus the space on the road it needed, the latter
is no showing that he is the manager or CEO of defendant Liberty Forest,

vehicle scraped its rear right side on the protruded bulldozer blade and the

Inc. Although in the answer, it is admitted that he is an officer of the

impact threw the bus directly on the path of the oncoming truck. This made

defendant corporation, but it is not clarified what kind of position he is

plaintiffs-appellants/appellees conclude that the Joana Paula bus occupied

holding, as he could be an officer as one of the members of the Board of

its lane which forced Ortiz, the driver of the truck, to swerve to its left and

Directors or a cashier and treasurer of the corporation. Witness Limbaga in

ram the front of the parked trailer.

his testimony mentioned a certain Boy Ching as the Manager but it was
47 | P a g e

Torts 5

xxxx

comply with the law is untenable. The aforequoted law clearly allows the
use not only of an early warning device of the triangular reflectorized

The trailer was parked because its two (2) rear-left tires were blown out.

plates variety but also parking lights or flares visible one hundred meters

With a bulldozer on top of the trailer and two (2) busted tires, it would be

away. x x x.

dangerous and quite impossible for the trailer to further park on the

This Court holds that the defendants-appellants/appellees were not

graveled shoulder of the road. To do so will cause the flat car to tilt and

negligent in parking the trailer on the scene of the accident. It would have

may cause the bulldozer to fall from where it was mounted. In fact, it

been different if there was only one flat tire and defendant-

appeared that the driver of the trailer tried its best to park on the graveled

appellant/appellee Limbaga failed to change the same and left

shoulder since the right-front tires were on the graveled shoulder of the

immediately.

road.
As such, defendants-appellants/appellees are not liable for the damages
The lower court erred in stating that the Joana Paula bus swerved to the

suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-

left of the truck because it did not see the parked trailer due to lack of

appellants/appellees suffered, they alone must bear them.[14]

Issues

warning sign of danger of any kind that can be seen from a distance. The
damage suffered by the Joana Paula bus belied this assessment. As
stated before, the Joana Paula bus, with the intention of passing first which

Petitioner raises two issues[15] for Our consideration, to wit:

it did, first approached the space beside the parked trailer, veered too

I.

close to the parked trailer thereby hitting its rear right side on the protruding
bulldozer blade. Since the damage was on the rear right most of the bus, it

THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE

was clearly on the space which was wide enough for a single passing

CONCRETE EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE

vehicle but not sufficient for two (2) passing vehicles. The bus was thrown

WERE EARLY WARNING DEVICES PLACED IN FRONT OF THE

right to the path of the truck by the impact of the collision of its rear right

DEFENDANT-APPELLANTS/APPELLEES TRUCK AND FLAT CAR TO

side with the bulldozer blade.[12]

WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR

The CA disagreed with the RTC that the prime mover did not have an early

PRESENCE.

warning device. The appellate court accepted the claim of private

respondent that Limbaga placed kerosene lighted tin cans on the front and

II.

rear of the trailer which, in Baliwag Transit, Inc. v. Court of Appeals,[13] may
act as substitute early warning device. The CA stated:

WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON

Likewise, it was incorrect for the lower court to state that there was no

EARLY WARNING DEVICES IN THE PUBLIC INTEREST.

Our Ruling

warning sign of danger of any kind, most probably referring to the absence
of the triangular reflectorized plates. The police sketch clearly indicated the
stack of banana leaves placed at the rear of the parked trailer. The trailers

The petition is meritorious.

driver testified that they placed kerosene lighted tin can at the back of the
parked trailer.

The meat of the petition is whether or not the prime mover is liable for the
damages suffered by the Nissan van. The RTC ruled in the affirmative

A pair of triangular reflectorized plates is not the only early warning device

holding that the proximate cause of the vehicular collision was the

allowed by law. The Supreme Court (in Baliwag Transit, Inc. v. Court of

negligence of Limbaga in parking the prime mover on the national highway

Appeals) held that:

without an early warning device on the vehicle. The CA reversed the RTC

x x x Col. Dela Cruz and Romano testified that they did not see any early

decision, holding that the proximate cause of the collision was the

warning device at the scene of the accident. They were referring to the

negligence of Ortiz in not yielding to the right of way of the passenger bus.

triangular reflectorized plates in red and yellow issued by the Land

Transportation Office. However, the evidence shows that Recontique and

Article 2176 of the Civil Code provides that whoever by act or omission

Ecala placed a kerosene lamp or torch at the edge of the road, near the

causes damage to another, there being fault or negligence, is obliged to

rear portion of the truck to serve as an early warning device. This

pay for the damage done. Such fault or negligence, if there is no pre-

substantially complies with Section 34(g) of the Land Transportation and

existing contractual relation between the parties, is called a quasi-delict. To

Traffic Code x x x

sustain a claim based on quasi-delict, the following requisites must concur:

(a) damage suffered by plaintiff; (b) fault or negligence of defendant; and

Baliwags argument that the kerosene lamp or torch does not substantially

(c) connection of cause and effect between the fault or negligence of

48 | P a g e

Torts 5

defendant and the damage incurred by plaintiff.[16]

bulldozer may fall off. The photographs taken after the incident show that
it could have been possible for Limbaga to park the prime mover

There is no dispute that the Nissan van suffered damage. That is borne by

completely on the shoulder of the national road without risk to oncoming

the records and conceded by the parties. The outstanding issues are

motorists. We agree with the RTC observation on this point, thus:

negligence and proximate cause. Tersely put, the twin issues are: (a)

x x x The statement of Limbaga that he could not park the prime mover and

whether or not prime mover driver Limbaga was negligent in parking the

trailer deeper into the sand and gravel shoulder of the highway to his right

vehicle; and (b) whether or not his negligence was the proximate cause of

because there were banana plants is contradicted by the picture marked

the damage to the Nissan van.

Exhibit F. The picture shows that there was ample space on the shoulder.
If defendant Limbaga was careful and prudent enough, he should have the

Limbaga was negligent in parking the prime mover on the national

prime mover and trailer traveled more distance forward so that the bodies

highway; he failed

of the prime mover and trailer would be far more on the shoulder rather

to prevent or minimize the risk to oncoming motorists.

than on the cemented highway when they were parked. Although at the
time of the incident, it was about 4:45 in the morning and it was drizzling

Negligence is defined as the failure to observe for the protection of the

but there is showing that it was pitch dark that whoever travels along the

interests of another person that degree of care, precaution, and vigilance

highway must be extra careful. If the Joana Paula bus swerved to the lane

which the circumstances justly demand, whereby such other person suffers on which the Nissan ice van was properly traveling, as prescribed by
injury.[17] The Supreme Court stated the test of negligence in the landmark
case Picart v. Smith

[18]

as follows:

Traffic Rules and Regulations, it is because the driver of the bus did not
see at a distance the parked prime mover and trailer on the bus proper

The test by which to determine the existence or negligence in a particular

lane because there was no warning signs of danger of any kind that can be

case may be stated as follows: Did the defendant in doing the alleged

seen from a distance.[19]

negligent act use that reasonable care and caution which an ordinary

Limbaga also failed to take proper steps to minimize the risk posed by the

person would have used in the same situation? If not, then he is guilty of

improperly parked prime mover. He did not immediately inform his

negligence. The law here in effect adopts the standard supposed to be

employer, private respondent Liberty Forest, Inc., that the prime mover

supplied by the imaginary conduct of the discreet paterfamilias of the

suffered two tire blowouts and that he could not have them fixed because

Roman law. The existence of negligence in a given case is not determined

he had only one spare tire. Instead of calling for help, Limbaga took it upon

by reference to the personal judgment of the actor in the situation before

himself to simply place banana leaves on the front and rear of the prime

him. The law considers what would be reckless, blameworthy, or negligent

mover to serve as warning to oncoming motorists. Worse, Limbaga slept

in the man of ordinary intelligence and prudence and determines liability by

on the prime mover instead of standing guard beside the vehicle. By his

that. (Underscoring supplied)

own account, Limbaga was sleeping on the prime mover at the time of the

The test of negligence is objective. We measure the act or omission of the

collision and that he was only awakened by the impact of the Nissan van

tortfeasor with that of an ordinary reasonable person in the same situation.

and the passenger bus on the prime mover.[20]

The test, as applied to this case, is whether Limbaga, in parking the prime
mover, used that reasonable care and caution which an ordinary

Limbaga also admitted on cross-examination that it was his first time to

reasonable person would have used in the same situation.

drive the prime mover with trailer loaded with a D-8 caterpillar bulldozer.[21]
We find that private respondent Liberty Forest, Inc. was utterly negligent in

We find that Limbaga was utterly negligent in parking the prime mover

allowing a novice driver, like Limbaga, to operate a vehicle, such as a truck

askew on the right side of the national highway. The vehicle occupied a

loaded with a bulldozer, which required highly specialized driving skills.

substantial portion of the national road on the lane of the passenger bus. It

Respondent employer clearly failed to properly supervise Limbaga in

was parked at the shoulder of the road with its left wheels still on the

driving the prime mover.

cemented highway and the right wheels on the sand and gravel shoulder of
the highway. It is common sense that the skewed parking of the prime

The RTC noted that private respondent Liberty Forest, Inc. also failed to

mover on the national road posed a serious risk to oncoming motorists. It

keep the prime mover in proper condition at the time of the collision. The

was incumbent upon Limbaga to take some measures to prevent that risk,

prime mover had worn out tires. It was only equipped with one spare tire. It

or at least minimize it.

was for this reason that Limbaga was unable to change the two blown out
tires because he had only one spare. The bulldozer was not even loaded

We are unable to agree with the CA conclusion it would have been

properly on the prime mover, which caused the tire blowouts.

dangerous and quite impossible to further park the prime mover on the
graveled shoulder of the road because the prime mover may tilt and the

All told, We agree with the RTC that private respondent Limbaga was
49 | P a g e

Torts 5

negligent in parking the prime mover on the national highway. Private

in their Answer to the complaint for damages. Petitioners counsel promptly

respondent Liberty Forest, Inc. was also negligent in failing to supervise

objected to the testimony of Limbaga, thus:

Limbaga and in ensuring that the prime mover was in proper condition.

ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and at the

The case of Baliwag Transit, Inc. v. Court of Appeals is inapplicable;

rear of the prime mover with trailer, will you please describe to us what this

Limbaga did not

word signs are?

put lighted kerosene tin cans on the front and rear of the prime

A. We placed a piece of cloth on tin cans and filled them with crude oil.

mover.

And these tin cans were lighted and they are like torches. These two lights
or torches were placed in front and at the rear side of the prime mover with

Anent the absence of an early warning device on the prime mover, the CA

trailer. After each torch, we placed banana trunk. The banana trunk is

erred in accepting the bare testimony of Limbaga that he placed kerosene

placed between the two (2) torches and the prime mover, both on the rear

lighted tin cans on the front and rear of the prime mover. The evidence on

and on the front portion of the prime mover.

records belies such claim. The CA reliance on Baliwag Transit, Inc. v.

Court of Appeals[22] as authority for the proposition that kerosene lighted tin

Q. How far was the lighted tin cans with wick placed in front of the prime

cans may act as substitute early warning device is misplaced.

mover.

First, the traffic incident report did not mention any lighted tin cans on the

ATTY. ASIS:

prime mover or within the immediate vicinity of the accident. Only banana

At this point, we will be objecting to questions particularly referring to the

leaves were placed on the prime mover. The report reads:

alleged tin cans as some of the warning-sign devices, considering that

VIII RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No.

there is no allegation to that effect in the answer of the defendants. The

7788, with Plate No. LVA-137, driven by one Temestocles Relova v.

answer was just limited to the numbers 4 & 5 of the answer. And, therefore,

Antero, of legal age, married and a resident of San Roque, Kitcharao,

if we follow the rule of the binding effect of an allegation in the complaint,

Agusan del Norte, while traveling along the National Highway, coming from

then the party will not be allowed to introduce evidence to attack jointly or

the east going to the west direction, as it moves along the way and upon

rather the same, paragraph 5 states, warning device consisting of 3

reaching Brgy. Sumilihon, Butuan City to evade bumping to the

banana trunks, banana items and leaves were filed. He can be cross-

approaching Nissan Ice Van with Plate No. PNT-247, driven by one

examined in the point, Your Honor.

Rogelio Cortez y Ceneza. As the result, the Joana Paula Bus accidentally
busideswept (sic) to the parked Prime Mover with Trailer loaded with

COURT:

Bulldozer without early warning device, instead placing only dry banana

Q. Put that on record that as far as this tin cans are concerned, the

leaves three (3) meters at the rear portion of the Trailer, while failure to

plaintiffs are interposing continuing objections. But the Court will allow the

place at the front portion, and the said vehicle occupied the whole lane. As

question.[25]

the result, the Joana Paula Bus hit to the left edge blade of the Bulldozer.

We thus agree with the RTC that Limbaga did not place lighted tin cans on

Thus, causing the said bus swept to the narrow shouldering, removing the

the front and rear of the prime mover. We give more credence to the traffic

rear four (4) wheels including the differential and injuring the above-stated

incident report and the testimony of SPO4 Pame that only banana leaves

twelve (12) passengers and damaged to the right side fender above the

were placed on the vehicle. Baliwag Transit, Inc. v. Court of Appeals[26]

rear wheel. Thus, causing damage on it. While the Nissan Ice Van in

thus finds no application to the case at bar.

evading, accidentally swerved to the left lane and accidentally bumped to

the front bumper of the parked Prime Mover with Trailer loaded with

The skewed parking of the prime mover was the proximate cause of

Bulldozer. Thus, causing heavy damage to said Nissan Ice Van including

the collision.

the cargoes of the said van.

[23]

Second, SPO4 Pame, who investigated the collision, testified[24] that only

Proximate cause is defined as that cause, which, in natural and continuous

banana leaves were placed on the front and rear of the prime mover. He

sequence, unbroken by any efficient intervening cause, produces the

did not see any lighted tin cans in the immediate vicinity of the collision.

injury, and without which the result would not have occurred. More
comprehensively, proximate cause is that cause acting first and producing

Third, the claim of Limbaga that he placed lighted tin cans on the front and

the injury, either immediately or by setting other events in motion, all

rear of the prime mover belatedly surfaced only during his direct

constituting a natural and continuous chain of events, each having a close

examination. No allegation to this effect was made by private respondents

causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as natural and probable result of the
50 | P a g e

Torts 5

cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and

Private respondents Liberty Forest, Inc. and Limbaga are liable for all

intelligent person, have reasonable ground to expect at the moment of his

damages that resulted from the skewed parking of the prime mover. Their

act or default that an injury to some person might probably result

liability includes those damages resulting from precautionary measures

[27]

therefrom.

taken by other motorist in trying to avoid collision with the parked prime
mover. As We see it, the passenger bus swerved to the right, onto the lane

There is no exact mathematical formula to determine proximate cause. It is

of the Nissan van, to avoid colliding with the improperly parked prime

based upon mixed considerations of logic, common sense, policy and

mover. The driver of the Nissan van, Ortiz, reacted swiftly by swerving to

precedent.

[28]

Plaintiff must, however, establish a sufficient link between the

the left, onto the lane of the passenger bus, hitting the parked prime mover.

act or omission and the damage or injury. That link must not be remote or

Ortiz obviously would not have swerved if not for the passenger bus

far-fetched; otherwise, no liability will attach. The damage or injury must be

abruptly occupying his vans lane. The passenger bus, in turn, would not

a natural and probable result of the act or omission. In the precedent-

have swerved to the lane of the Nissan van if not for the prime mover

setting Vda. de Bataclan v. Medina,

[29]

this Court discussed the necessary

link that must be established between the act or omission and the damage

improperly parked on its lane. The skewed parking is the proximate cause
of the damage to the Nissan van.

or injury, viz.:
It may be that ordinarily, when a passenger bus overturns, and pins down a In Phoenix Construction, Inc. v. Intermediate Appellate Court,[30] this Court
passenger, merely causing him physical injuries, if through some event,

held that a similar vehicular collision was caused by the skewed parking of

unexpected and extraordinary, the overturned bus is set on fire, say, by

a dump truck on the national road, thus:

lightning, or if some highwaymen after looting the vehicle sets it on fire, and The conclusion we draw from the factual circumstances outlined above is
the passenger is burned to death, one might still contend that the

that private respondent Dionisio was negligent the night of the accident. He

proximate cause of his death was the fire and not the overturning of the

was hurrying home that night and driving faster than he should have been.

vehicle. But in the present case and under the circumstances obtaining in

Worse, he extinguished his headlights at or near the intersection of

the same, we do not hesitate to hold that the proximate cause of the death

General Lacuna and General Santos Streets and thus did not see the

of Bataclan was the overturning of the bus, this for the reason that when

dump truck that was parked askew and sticking out onto the road lane.

the vehicle turned not only on its side but completely on its back, the
leaking of the gasoline from the tank was not unnatural or unexpected; that

Nonetheless, we agree with the Court of First Instance and the

the coming of the men with a lighted torch was in response to the call for

Intermediate Appellate Court that the legal and proximate cause of the

help, made not only by the passengers, but most probably, by the driver

accident and of Dionisios injuries was the wrongful or negligent manner in

and the conductor themselves, and that because it was very dark (about

which the dump truck was parked in other words, the negligence of

2:30 in the morning), the rescuers had to carry a light with them; and

petitioner Carbonel. That there was a reasonable relationship between

coming as they did from a rural area where lanterns and flashlights were

petitioner Carbonels negligence on the one hand and the accident and

not available, they had to use a torch, the most handy and available; and

respondents injuries on the other hand, is quite clear. Put in a slightly

what was more natural than that said rescuers should innocently approach

different manner, the collision of Dionisios car with the dump truck was a

the overturned vehicle to extend the aid and effect the rescue requested

natural and foreseeable consequence of the truck drivers negligence.

from them. In other words, the coming of the men with the torch was to be
expected and was natural sequence of the overturning of the bus, the

xxxx

trapping of some of its passengers bus, the trapping of some of its

passengers and the call for outside help.

We believe, secondly, that the truck drivers negligence far from being a

The ruling in Bataclan has been repeatedly cited in subsequent cases as

passive and static condition was rather an indispensable and efficient

authority for the proposition that the damage or injury must be a natural or

cause. The collision between the dump truck and the private respondents

probable result of the act or omission. Here, We agree with the RTC that

car would in all probability not have occurred had the dump truck not been

the damage caused to the Nissan van was a natural and probable result of

parked askew without any warning lights or reflector devices. The improper

the improper parking of the prime mover with trailer. As discussed, the

parking of the dump truck created an unreasonable risk of injury for anyone

skewed parking of the prime mover posed a serious risk to oncoming

driving down General Lacuna Street and for having so created this risk, the

motorists. Limbaga failed to prevent or minimize that risk. The skewed

truck driver must be held responsible. In our view, Dionisios negligence,

parking of the prime mover triggered the series of events that led to the

although later in point of time than the truck drivers negligence and,

collision, particularly the swerving of the passenger bus and the Nissan

therefore, closer to the accident, was not an efficient intervening or

van.

independent cause. What the Petitioner describes as an intervening

51 | P a g e

Torts 5

cause was no more than a foreseeable consequence of the risk created

negligence, concurring with one or more efficient causes other than

by the negligent manner in which the truck driver had parked the dump

plaintiffs, is the proximate cause of the injury. Accordingly, where several

truck. In other words, the petitioner truck driver owed a duty to private

causes combine to produce injuries, a person is not relieved from liability

respondent Dionisio and others similarly situated not to impose upon them

because he is responsible for only one of them, it being sufficient that the

the very risk the truck driver had created. Dionisios negligence was not of

negligence of the person charged with injury is an efficient cause without

an independent and overpowering nature as to cut, as it were, the chain of

which the injury would not have resulted to as great an extent, and that

causation in fact between the improper parking of the dump truck and the

such cause is not attributable to the person injured. It is no defense to one

accident, nor to sever the juris vinculum of liability. x x x (Underscoring

of the concurrent tortfeasors that the injury would not have resulted from

supplied)

his negligence alone, without the negligence or wrongful acts of the other

We cannot rule on the proportionate or contributory liability of the

concurrent tortfeasors. Where several causes producing an injury are

passenger bus, if any, because it was not a party to the case; joint

concurrent and each is an efficient cause without which the injury would

tortfeasors are solidarily liable.

not have happened, the injury may be attributed to all or any of the causes
and recovery may be had against any or all of the responsible persons

The CA also faults the passenger bus for the vehicular collision. The

although under the circumstances of the case, it may appear that one of

appellate court noted that the passenger bus was aware of the presence

them was more culpable, and that the duty owed by them to the injured

of the prime mover on its lane, but it still proceeded to occupy the lane of

person was not the same. No actors negligence ceases to be a proximate

the Nissan van. The passenger bus also miscalculated its distance from

cause merely because it does not exceed the negligence of other actors.

the prime mover when it hit the vehicle.

Each wrongdoer is responsible for the entire result and is liable as though
his acts were the sole cause of the injury.

We cannot definitively rule on the proportionate or contributory liability of

the Joana Paula passenger bus vis--vis the prime mover because it was

There is no contribution between joint tortfeasors whose liability is solidary

not a party to the complaint for damages. Due process dictates that the

since both of them are liable for the total damage. Where the concurrent or

passenger bus must be given an opportunity to present its own version of

successive negligent acts or omissions of two or more persons, although

events before it can be held liable. Any contributory or proportionate liability acting independently, are in combination with the direct and proximate
of the passenger bus must be litigated in a separate action, barring any

cause of a single injury to a third person, it is impossible to determine in

defense of prescription or laches. Insofar as petitioner is concerned, the

what proportion each contributed to the injury and either of them is

proximate cause of the collision was the improper parking of the prime

responsible for the whole injury. Where their concurring negligence

mover. It was the improper parking of the prime mover which set in motion

resulted in injury or damage to a third party, they become joint tortfeasors

the series of events that led to the vehicular collision.

and are solidarily liable for the resulting damage under Article 2194 of the
Civil Code. (Underscoring supplied)

Even granting that the passenger bus was at fault, its fault will not

All told, all the elements of quasi delict have been proven by clear and

necessarily absolve private respondents from liability. If at fault, the

convincing evidence. The CA erred in absolving private respondents from

passenger bus will be a joint tortfeasor along with private respondents. The

liability for the vehicular collision.

liability of joint tortfeasors is joint and solidary. This means that petitioner
may hold either of them liable for damages from the collision. In Philippine
National Construction Corporation v. Court of Appeals,

[31]

Final Note

this Court held:

According to the great weight of authority, where the concurrent or

It is lamentable that the vehicular collision in this case could have been

successive negligent acts or omission of two or more persons, although

easily avoided by following basic traffic rules and regulations and road

acting independently of each other, are, in combination, the direct and

safety standards. In hindsight, private respondent Limbaga could have

proximate cause of a single injury to a third person and it is impossible to

prevented the three-way vehicular collision if he had properly parked the

determine in what proportion each contributed to the injury, either is

prime mover on the shoulder of the national road. The improper parking of

responsible for the whole injury, even though his act alone might not have

vehicles, most especially along the national highways, poses a serious and

caused the entire injury, or the same damage might have resulted from the

unnecessary risk to the lives and limbs of other motorists and passengers.

acts of the other tort-feasor x x x.

Drivers owe a duty of care to follow basic traffic rules and regulations and

In Far Eastern Shipping Company v. Court of Appeals, the Court declared

to observe road safety standards. They owe that duty not only for their own

that the liability of joint tortfeasors is joint and solidary, to wit:

safety, but also for that of other motorists. We can prevent most vehicular

It may be said, as a general rule, that negligence in order to render a

accidents by simply following basic traffic rules and regulations.

person liable need not be the sole cause of an injury. It is sufficient that his
52 | P a g e

Torts 5

We also note a failure of implementation of basic safety standards,

particularly the law on early warning devices. This applies even more to
trucks and big vehicles, which are prone to mechanical breakdown on the
national highway. The law, as crafted, requires vehicles to be equipped
with triangular reflectorized plates.[32] Vehicles without the required early
warning devices are ineligible for registration.[33] Vehicle owners may also
be arrested and fined for non-compliance with the law.[34]

The Land Transportation Office (LTO) owes a duty to the public to ensure
that all vehicles on the road meet basic and minimum safety features,
including that of early warning devices. It is most unfortunate that We still
see dilapidated and rundown vehicles on the road with substandard safety
features. These vehicles not only pose a hazard to the safety of their
occupants but that of other motorists. The prime mover truck in this case
should not have been granted registration because it failed to comply with
the minimum safety features required for vehicles on the road.

It is, indeed, time for traffic enforcement agencies and the LTO to strictly
enforce all pertinent laws and regulations within their mandate.

WHEREFORE, the petition is GRANTED. The Court of Appeals decision

dated August 28, 2003 is hereby SET ASIDE. The RTC decision dated
August 7, 2001 is REINSTATED IN FULL.

SO ORDERED.

53 | P a g e

Torts 5

GLAN PEOPLES LUMBER AND HARDWARE, GEORGE LIM, FABIO S. For failure to file its answer to the third party complaint, third party
AGAD, FELIX LIM AND PAUL ZACARIAS Y INFANTE, PETITIONERS,

defendant, which insured the cargo truck involved, was declared in

VS. INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE default."

CALIBO, MINORS ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE,
JACQUELINE BRIGITTE, JOCELINE CORAZON, JULIET GERALDINE,

The case filed by the heirs of Engineer Calibo -- his widow and minor

JENNIFER JILL, ALL SURNAMED CALIBO, REPRESENTED BY THEIR

children, private respondents herein -- was docketed as Civil Case No.

MOTHER, CECILIA A. VDA. DE CALIBO, RESPONDENTS.

3283 of the Court of First Instance of Bohol.[3] Named defendants in the

complaint were "Felix S. Agad, George Lim and Felix Lim ** (who) appear

DECISION

to be the co-owners of the Glan People's Lumber and Hardware ** (and)

Paul Zacarias y Infante."[4] The defendants' answer however alleged that

NARVASA, J.:

the lumber and hardware business was exclusively owned by George Y.

Lim, this being evidenced by the Certificate of Registration issued by the

There is a two-fold message in this judgment that bears stating at the

Bureau of Domestic Trade; Fabio S. Agad was not a co-owner thereof but

outset. The first, an obvious one, is that it is the objective facts established

"merely employed by ** George Y. Lim as bookkeeper"; and Felix Lim had

by proofs presented in a controversy that determine the verdict, not the

no connection whatever with said business, "he being a child only eight (8)

plight of the persons involved, no matter how deserving of sympathy and

years of age."[5]

commiseration because, for example, an accident of which they are the

innocent victims has brought them to reduced circumstances or otherwise

"After (trial, and) a careful evaluation of the evidence, both testimonial and

tragically altered their lives. The second is that the doctrine laid down

documentary," the Court reached the conclusion "that the plaintiffs failed to

[1]

many, many years ago in Picart vs. Smith, continues to be good law to

establish by preponderance of evidence the negligence, and thus the

this day.

liability, of the defendants." Accordingly, the Court dismissed the complaint

(and defendants' counterclaim) "for insufficiency of evidence." Likewise

The facts giving rise to the controversy at bar are tersely and quite

dismissed was third-party complaint presented by the defendants against

accurately recounted by the Trial Court as follows:[2]

the insurer of the truck. The circumstances leading to the Court's

conclusion just mentioned, are detailed in the Court's decision, as follows:

"Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were

on the jeep owned by the Bacnotan Consolidated Industries, Inc., with

1. Moments before its collision with the truck being operated by Zacarias,

Calibo at the wheel, as it approached from the South Lizada Bridge going

the jeep of the deceased Calibo was "zigzagging."[6]

towards the direction of Davao City at about 1:45 in the afternoon of July 4,
1979. At about that time, the cargo truck, loaded with cement bags, GI

2. Unlike Zacarias who readily submitted himself to investigation by the

sheets, plywood, driven by defendant Paul Zacarias y Infante, coming from

police, Calibo's companions, Roranes (an accountant), and Patos, who

the opposite direction of Davao City and bound for Glan, South Cotabato,

suffered injuries on account of the collision, refused to be so investigated

had just crossed said bridge. At about 59 yards after crossing the bridge,

or give statements to the police officers. This, plus Roranes waiver of the

the cargo truck and the jeep collided as a consequence of which Engineer

right to institute criminal proceedings against Zacarias, and the fact that

Calibo died while Roranes and Patos sustained physical injuries. Zacarias

indeed no criminal case was ever instituted in Court against Zacarias, were

was unhurt. As a result of the impact, the left side of the truck was slightly

"telling indications that they did not attribute the happening to defendant

damaged while the left side of the jeep, including its fender and hood, was

Zacarias' negligence or fault."[7]

extensively damaged. After the impact, the jeep fell and rested on its right
side on the asphalted road a few meters to the rear of the truck, while the
truck stopped on its wheels on the road.
On November 27, 1979, the instant case for damages was filed by the
surviving spouse and children of the late Engineer Calibo who are
residents of Tagbilaran City against the driver and owners of the cargo
truck.

54 | P a g e

Torts 5

3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and

3) the waiver of the right to file criminal charges against Zacarias should

detailed as that of ** Zacarias," and was "uncertain and even contradicted

not be taken against "plaintiffs" Roranes and Patos who had the right,

by the physical facts and the police investigators Dimaano and Esparcia."[8]

under the law, to opt merely to bring a civil suit.[15]

4. That there were skid marks left by the truck's tires at the scene, and

The Appellate Court opined that Zacarias' negligence "gave rise to the

none by the jeep, demonstrates that the driver of the truck had applied the

presumption of negligence on the part of his employer, and their liability is

brakes and the jeep's driver had not; and that the jeep had on impact fallen

both primary and solidary." It therefore ordered the defendants jointly and

on its right side is indication that it was running at high speed. Under the

solidarily to indemnify the plaintiffs the following amounts:

circumstances, according to the Court, given "the curvature of the road and
the descending grade of the jeep's lane, it was negligence on the part of

(1) P30,000.00 for the death of Orlando Calibo;

the driver of the jeep, Engr. Calibo, for not reducing his speed upon sight of (2) P378,000.00 for the loss of earning capacity of the deceased
the truck and failing to apply the brakes as he got within collision range
(3) P15,000.00 for attorney's fees;
with the truck."
(4) Cost of suit."[16]
5. Even if it be considered that there was some antecedent negligence on
the part of Zacarias shortly before the collision, in that he had caused his

The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias

truck to run some 25 centimeters to the left of the center of the road, Engr.

have appealed to this Court on certiorari and pray for a reversal of the

Calibo had the last clear chance of avoiding the accident because he still

judgment of the Intermediate Appellate Court which, it is claimed, ignored

had ample room in his own lane to steer clear of the truck, or he could

or ran counter to the established facts. A review of the record confirms the

simply have braked to a full stop.

merit of this assertion and persuades this Court that said judgment indeed
disregarded facts clearly and undisputably demonstrated by the proofs.
[9]

The Court of Appeals saw things differently. It rendered judgment on the

[10]

plaintiffs' appeal,

The appealed judgment, consequently, will have to be reversed.

reversing the decision of the Trial Court. It found

Zacarias to be negligent on the basis of the following circumstances, to wit:

The finding that "the truck driven by defendant Paul Zacarias occupied the
lane of the jeep when the collision occurred" is a loose one, based on

1) "the truck driven by defendant Zacarias occupied the lane of the jeep

nothing more than the showing that at the time of the accident, the truck

when the collision occurred," and although Zacarias saw the jeep from a

driven by Zacarias had edged over the painted center line of the road into

distance of about 150 meters, he "did not drive his truck back to his lane in

the opposite lane by a width of twenty-five (25) centimeters. It ignores the

order to avoid collision with the oncoming jeep **;"

[11]

what is worse, "the

fact that by the uncontradicted evidence, the actual center line of the road

truck driver suddenly applied his brakes even as he knew that he was still

was not that indicated by the painted stripe but, according to

within the lane of the jeep;"[12] had both vehicles stayed in their respective

measurements made and testified to by Patrolman Juanito Dimaano, one

lanes, the collision would never have occurred, they would have passed

of the two officers who investigated the accident, correctly lay thirty-six (36)

[13]

"alongside each other safely;"

centimeters farther to the left of the truck's side of said stripe.

2) Zacarias had no license at the time; what he handed to Pfc. Esparcia,

on the latter's demand, was the "driver's license of his co-driver Leonardo
Baricuatro;"[14]

The unimpugned testimony of Patrolman Dimaano, a witness for the

private respondents, is to the effect that the jeep's lane was three (3)
meters and seventy-five (75) centimeters wide, and that of the truck three
(3) meters and three (3) centimeters, measured from the center stripe to
the corresponding side lines or outer edges of the road.[17] The total width
of the road being, therefore, six (6) meters and seventy-eight (78)
centimeters, the true center line equidistant from both side lines would
divide the road into two lanes each three (meters) and thirty-nine (39)
centimeters wide. Thus, although it was not disputed that the truck

55 | P a g e

Torts 5

overrode the painted stripe by twenty-five (25) centimeters, it was still at

renewed just the day before the accident, on July 3, 1979.[21] The Court

least eleven (11) centimeters away from its side of the true center line of

was apparently misled by the circumstance that when said driver was first

the road and well inside its own lane when the accident occurred. By this

asked to show his license by the investigators at the scene of the collision,

same reckoning, since it was unquestionably the jeep that rammed into the

he had first inadvertently produced the license of a fellow driver, Leonardo

stopped truck, it may also be deduced that it (the jeep) was at the time

Baricuatro, who had left said license in Davao City and had asked Zacarias

travelling beyond its own lane and intruding into the lane of the truck by at

to bring it back to him in Glan, Cotabato.[22]

least the same 11-centimeter width of space.

The evidence not only acquits Zacarias of any negligence in the matter;
Not only was the truck's lane, measured from the incorrectly located center

there are also quite a few significant indicators that it was rather Engineer

stripe uncomfortably narrow, given that vehicle's width of two (2) meters

Calibo's negligence that was the proximate cause of the accident.

and forty-six (46) centimeters; the adjacent road shoulder was also virtually Zacarias had told Patrolman Dimaano at the scene of the collision and later
impassable, being about three (3) inches lower than the paved surface of

confirmed in his written statement at the police headquarters [23] that the

the road and "soft" -- not firm enough to offer traction for safe passage --

jeep had been "zigzagging," which is to say that it was travelling or being

besides which, it sloped gradually down to a three foot-deep ravine with a

driven erratically at the time. The other investigator, Patrolman Jose

river below.

[18]

The truck's lane as erroneously demarcated by the center

Esparcia, also testified that eyewitnesses to the accident had remarked on

stripe gave said vehicle barely half a meter of clearance from the edge of

the jeep's "zigzagging."[24] There is moreover more than a suggestion that

the road and the dangerous shoulder and little room for maneuver, in case

Calibo had been drinking shortly before the accident. The decision of the

this was made necessary by traffic contingencies or road conditions, if it

Trial Court adverts to further testimony of Esparcia to the effect that three

always kept to said lane. It being also shown that the accident happened

of Calibo's companions at the beach party he was driving home from when

[19]

at or near the point of the truck's approach to a curve,

which called for

the collision occurred, who, having left ahead of him went to the scene

extra precautions against driving too near the shoulder, it could hardly be

when they heard about the accident, had said that there had been a

accounted negligent on the part of its driver to intrude temporarily, and by

drinking spree at the party and, referring to Calibo, had remarked: "Sabi

only as small as a twenty-five centimeter-wide space (less than ten

na huag nang mag drive . . . . pumipilit," (loosely translated, "He was

inches), into the opposite lane in order to insure his vehicle's safety. This,

advised not to drive, but he insisted.").

even supposing that said maneuver was in fact an intrusion into the
opposite lane, which was not the case at all as just pointed out.

It was Calibo whose driver's license could not be found on his person at
the scene of the accident, and was reported by his companions in the jeep

Nor was the Appellate Court correct in finding that Paulino Zacarias had

as having been lost with his wallet at said scene, according to the traffic

acted negligently in applying his brakes instead of getting back inside his

accident report, Exhibit "J". Said license unexplainedly found its way into

lane upon espying the approaching jeep. Being well within his own Iane,

the record some two years later.

as has already been explained, he had no duty to swerve out of the jeep's
way as said Court would have had him do. And even supposing that he

Reference has already been made to the finding of the Trial Court that

was in fact partly inside the opposite lane, coming to a full stop with the

while Zacarias readily submitted to interrogation and gave a detailed

jeep still thirty (30) meters away cannot be considered an unsafe or

statement to the police investigators immediately after the accident,

imprudent action, there also being uncontradicted evidence that the jeep

Calibo's two companions in the jeep and supposed eyewitnesses, Agripino

was zigzagging

[20]

and hence no way of telling in which direction it would

go as it approached the truck.

Roranes and Maximo Patos, refused to give any statements. Furthermore,

Roranes who, together with Patos, had sustained injuries as a result of the
collision, waived his right to file a criminal case against Zacarias.[25]

Also clearly erroneous is the finding of the Intermediate Appellate Court

that Zacarias had no driver's license at the time. The traffic accident report
attests to the proven fact that Zacarias voluntarily surrendered to the
investigating officers his driver's license, valid for 1979, that had been

56 | P a g e

Torts 5

Even, however, ignoring these telltale, indicia of negligence on the part of

the immediate and determining cause of the accident and that of the

Calibo, and assuming some antecedent negligence on the part of Zacarias

plaintiff "*** the more remote factor in the case":

in failing to keep within his designated lane, incorrectly demarcated as it

"It goes without saying that the plaintiff himself was not free from fault, for

was, the physical facts, either expressly found by the Intermediate

Appellate Court or which may be deemed conceded for lack of any dispute, he was guilty of antecedent negligence in planting himself on the wrong
would still absolve the latter of any actionable responsibility for the accident 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

under the rule of the last clear chance.

is immediately and directly responsible. It will be noted that the negligent

Both drivers, as the Appellate Court found, had had a full view of each

acts of the two parties were not contemporaneous, since the negligence of

other's vehicle from a distance of one hundred fifty meters. Both vehicles

the defendant succeeded the negligence of the plaintiff by an appreciable

were travelling at a speed of approximately thirty kilometers per hour.

[26]

interval. Under these circumstances the law is that the person who has the

The private respondents have admitted that the truck was already at a full

last fair chance to avoid the impending harm and fails to do so is

stop when the jeep plowed into it. And they have not seen fit to deny or

chargeable with the consequences, without reference to the prior

impugn petitioners' imputation that they also admitted the truck had been

negligence of the other party."

brought to a stop while the jeep was still thirty meters away.

[27]

From these

facts the logical conclusion emerges that the driver of the jeep had what

Since said ruling clearly applies to exonerate petitioner Zacarias and his

judicial doctrine has appropriately called the last clear chance to avoid the

employer (and co-petitioner) George Lim, an inquiry into whether or not the

accident, while still at that distance of thirty meters from the truck, by

evidence supports the latter's additional defense of due diligence in the

stopping in his turn or swerving his jeep away from the truck, either of

selection and supervision of said driver is no longer necessary and will not

which he had sufficient time to do while running at a speed of only thirty

be undertaken. The fact is that there is such evidence in the record which

kilometers per hour. In those circumstances, his duty was to seize that

has not been controverted.

opportunity of avoidance, not merely rely on a supposed right to expect, as

the Appellate Court would have it, the truck to swerve and leave him a

It must be pointed out, however, that the Intermediate Appellate Court also

clear path.

seriously erred in holding the petitioners Pablo S. Agad and Felix Lim
solidarily liable for the damages awarded in its appealed decision, as

The doctrine of the last clear chance provides as valid and complete a

alleged owners, with petitioner George Lim, of Glan People's Lumber and

defense to accident liability today as it did when invoked and applied in the

Hardware, employer of petitioner Zacarias. This manifestly disregarded,

1918 case of Picart vs. Smith, supra, which involved a similar state of facts. not only the certificate of registration issued by the Bureau of Domestic
Of those facts, which should be familiar to every student of law, it is only

Trade identifying Glan People's Lumber and Hardware as a business name

necessary to recall the summary made in the syllabus of this Court's

registered by George Lim,[28] but also unimpugned allegations in the

decision that:

petitioners' answer to the complaint that Pablo S. Agad was only an

employee of George Lim and that Felix Lim, then a child of only eight (8)

"(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead

years, was in no way connected with the business.

he improperly pulled his horse over to the railing on the right. The driver of
the automobile, however, guided his car toward the plaintiff without

In conclusion, it must also be stated that there is no doubt of this Court's

diminution of speed until he was only a few feet away. He then turned to

power to review the assailed decision of the Intermediate Appellate Court

the right but passed so closely to the horse that the latter being frightened,

under the authority of precedents recognizing exceptions to the familiar

jumped around and was killed by the passing car. ***."

rule binding it to observe and respect the latter's findings of fact. Many of
those exceptions may be cited to support the review here undertaken, but

Plaintiff Picart was thrown off his horse and suffered contusions which

only the most obvious -- that said findings directly conflict with those of the

required several days of medical attention. He sued the defendant Smith

Trial Court -- will suffice.[29] In the opinion of this Court and after a careful

for the value of his animal, medical expenses and damage to his apparel

review of the record, the evidence singularly fails to support the findings of

and obtained judgment from this Court which, while finding that there was

the Intermediate Appellate Court which, for all that appears, seem to have

negligence on the part of both parties, held that that of the defendant was

been prompted rather by sympathy for the heirs of the deceased Engineer

57 | P a g e

Torts 5

Calibo than by an objective appraisal of the proofs and a correct

application of the law to the established facts. Compassion for the plight of
those whom an accident has robbed of the love and support of a husband
and father is an entirely natural and understandable sentiment. It should
not, however, be allowed to stand in the way of, much less to influence, a
just verdict in a suit at law.

WHEREFORE, the appealed judgment of the Intermediate Appellate Court

is hereby REVERSED, and the complaint against herein petitioners in Civil
Case No. 3283 of the Court of First Instance of Bohol, Branch IV, is
DISMISSED. No pronouncement as to costs.

SO ORDERED.

58 | P a g e

Torts 5

OSMUNDO S. CANLAS AND ANGELINA CANLAS, PETITIONER, VS.

COURT OF APPEALS, ASIAN SAVINGS BANK, MAXIMO C.

the help of impostors who misrepresented themselves as the spouses,

Osmundo Canlas and Angelina Canlas.[5]

CONTRERAS AND VICENTE MAOSCA, RESPONDENTS.

On September 29, 1982, private respondent Vicente Maosca was granted
DECISION

a loan by the respondent Asian Savings Bank (ASB) in the amount of

P500,000.00, with the use of subject parcels of land as security, and with

PURISIMA, J.:

the involvement of the same impostors who again introduced themselves

as the Canlas spouses.[6] When the loan it extended was not paid,

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of

respondent bank extrajudicially foreclosed the mortgaged.

Court, seeking to review and set aside the Decision[1] of the Court of
Appeals in CA-G.R. CV No. 25242, which reversed the Decision[2] of

On January 15, 1983, Osmundo Canlas wrote a letter informing the

Branch 59 of the Regional Trial Court of Makati City in Civil Case No. M-

respondent bank that the execution of subject mortgage over the two

028; the dispositive portion of which reads:

parcels of land in question was without their (Canlas spouses) authority,

"WHEREFORE, the decision appealed from is hereby REVERSED and

and request that steps be taken to annul and/or revoke the questioned

SET ASIDE and a new one is hereby entered DISMISSING the complaint

mortgage. On January 18, 1983, petitioner Osmundo Canlas also wrote the

of the spouses Osmundo and Angelina Canlas. On the counterclaim of

office of Sheriff Maximo C. Contreras, asking that the auction sale

defendant Asian Savings Bank, the plaintiffs Canlas spouses are hereby

scheduled on February 3, 1983 be cancelled or held in abeyance. But

ordered to pay the defendant Asian Savings Bank the amount of

respondents Maximo C. Contreras and Asian Savings Bank refused to

P50,000.00 as moral and exemplary damages plus P15,000.00 as and for

heed petitioner Canlas' stance and proceeded with the scheduled auction

attorney's fees.

sale.[7]

With costs against appellees.

Consequently, on February 3, 1983 the herein petitioners instituted the

present case for annulment of deed of real estate mortgage with prayer for

SO ORDERED."

[3]

The facts that matter:

the issuance of a writ of preliminary injunction; and on May 23, 1983, the
trial court issued an Order restraining the respondent sheriff from issuing
the corresponding Certificate of Sheriffs Sale.[8]

Sometime in August, 1982, the petitioner, Osmundo S. Canlas, and private

respondent, Vicente Maosca, decided to venture in business and to raise

For failure to file his answer, despite several motions for extension of time

the capital needed therefor. The former then executed a Special Power of

for the filing thereof, Vicente Maosca was declared in default.[9]

Attorney authorizing the latter to mortgage two parcels of land situated in

San Dionisio, (BF Homes) Paranaque, Metro Manila, each lot with semi-

On June 1, 1989, the lower court a quo came out with a decision annulling

concrete residential house existing thereon, and respectively covered by

subject deed of mortgage and disposing, thus:

Transfer Certificate of Title No. 54366 in his (Osmundo's) name and

"Premises considered, judgment is hereby rendered as follows:

Transfer Certificate of Title No. S-78498 in the name of his wife Angelina
Canlas.

1. Declaring the deed of real estate mortgage (Exhibit 'L') involving the
properties of the plaintiffs as null and void;

Subsequently, Osmundo Canlas agreed to sell the said parcels of land to

Vicente Manosca, for and in consideration of P850,000.00, P500,000.00 of

2. Declaring the public auction sale conducted by the defendant Sheriff,

which payable within one week, and the balance of P350,000.00 to serve

involving the same properties as illegal and without binding effect;

as his (Osmundo's) investment in the business. Thus, Osmundo Canlas

delivered to Vicente Maosca the transfer certificates of title of the parcels

3. Ordering the defendants, jointly and severally, to pay the plaintiffs the

of land involved. Vicente Maosca, as his part of the transaction, issued

sum of P20,000.00 representing attorney's fees;

two postdated checks in favor of Osmundo Canlas in the amounts of

P40,000.00 and P460,000.00, respectively, but it turned out that the check

4. On defendant ASB's crossclaim: ordering the cross-defendant Vicente

covering the bigger amount was not sufficiently funded.[4]

Maosca to pay the defendant ASB the sum of P350,000.00, representing

the amount which he received as proceeds of the loan secured by the void

On September 3, 1982, Vicente Maosca was able to mortgage the same

mortgage, plus interest at the legal rate, starting February 3, 1983, the date

parcels of land for P100,000.00 to a certain Attorney Manuel Magno, with

when the original complaint was filed, until the amount is fully paid;
59 | P a g e

Torts 5

the performance, that which is expected of a good father of a family shall

5. With costs against the defendants.

be required. (1104)"
The degree of diligence required of banks is more than that of a good

SO ORDERED."

[10]

father of a family;[12] in keeping with their responsibility to exercise the

From such Decision below, Asian Savings Bank appealed to the Court of

necessary care and prudence in dealing even on a register or titled

Appeals, which handed down the assailed judgment of reversal, dated

property. The business of a bank is affected with public interest, holding in

September 30, 1983, in CA-G.R. CV No. 25242. Dissatisfied therewith, the

trust the money of the depositors, which bank deposits the bank should

petitioners found their way to this Court via the present Petition; theorizing

guard against loss due to negligence or bad faith, by reason of which the

that:

bank would be denied the protective mantle of the land registration law,
"I

accorded only to purchases or mortgagees for value and in good faith. [13]

RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE

In the case under consideration, from the evidence on hand it can be

MORTGAGE OF THE PROPERTIES SUBJECT OF THIS CASE WAS

gleaned unerringly that respondent bank did not observe the requisite

VALID.

diligence in ascertaining or verifying the real identity of the couple who

introduced themselves as the spouses Osmundo Canlas and Angelina
II

Canlas. It is worthy to note that not even a single identification card was
exhibited by the said impostors to show their true identity; and yet, the

RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT

bank acted on their representations simply on the basis of the residence

PETITIONERS ARE NOT ENTITLED TO RELIEF BECAUSE THEY WERE certificates bearing signatures which tended to match the signatures
NEGLIGENT AND THEREFORE MUST BEAR THE LOSS.

affixed on a previous deed of mortgage to a certain Atty. Magno, covering

the same parcels of land in question. Felizado Mangubat, Assistant Vice

III

RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT

President of Asian Savings Bank, thus testified inter alia:

"xxx xxx xxx

RESPONDENT ASB EXERCISED DUE DILIGENCE IN GRANTING THE

LOAN APPLICATION OF RESPONDENT.

Q: According to you, the basis for your having recommended for the
approval of MANASCO's (sic) loan particularly that one involving the

IV

property of plaintiff in this case, the spouses OSMUNDO CANLAS and

ANGELINA CANLAS, the basis for such approval was that according to

RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT

RESPONDENT ASB DID NOT ACT WITH BAD FAITH IN PROCEEDING

you all the signatures and other things taken into account matches with
that of the document previously executed by the spouses CANLAS?

WITH THE FORECLOSURE SALE OF THE PROPERTIES.

A: That is the only basis for accepting the signature on the mortgage, the
V

basis for the recommendation of the approval of the loan are the
financial statement of MAOSCA?

RESPONDENT COURT OF APPEALS ERRED IN AWARDING

RESPONDENT ASB MORAL DAMAGES."[11]
The Petition is impressed with merit.

A: Yes, among others the signature and TAX Account Number, Residence
Certificate appearing on the previous loan executed by the spouses
CANLAS, I am referring to EXHIBIT 5, mortgage to ATTY. MAGNO,

Article 1173 of the Civil Code, provides:

those were made the basis.

"Article 1173. The fault or negligence of the obligor consist in 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. When negligence shows bad faith, the provisions of articles 1171
and 2201, paragraph 2, shall apply.

A: That is just the basis of accepting the signature, because at that time
the loan have been approved already on the basis of the financial
statement of the client the Bank Statement. Wneh (sic) it was approved
we have to base it on the Financial statement of the client, the
signatures were accepted only for the purpose of signing the mortgage

If the law or contract does not state the diligence which is to be observed in

not for the approval, we don't (sic) approve loans on the signature.

60 | P a g e

Torts 5

ATTY. CLAROS:

proof of their true identity.

Would you agree that as part of ascertaining the identify of the parties

Under the doctrine of last clear chance, which is applicable here, the

particularly the mortgage, you don't consider also the signature, the

respondent bank must suffer the resulting loss. In essence, the doctrine of

Residence Certificate, the particular address of the parties involved.

last clear chance is to the effect that where both parties are negligent but
the negligent act of one is appreciably later in point of time than that of the

A: I think the question defers (sic) from what you asked a while ago.

other, or where it is impossible to determine whose fault or negligence

brought about the occurrence of the incident, the one who had the last

Q: Among others?

clear opportunity to avoid the impending harm but failed to do so, is

chargeable with the consequences arising therefrom. Stated differently, the

A: We have to accept the signature on the basis of the other signatures

given to us it being a public instrument.

rule is that the antecedent negligence of a person does not preclude

recovery of damages caused by the supervening negligence of the latter,
who had the last fair chance to prevent the impending harm by the exercise
of due diligence.[17]

ATTY. CARLOS:

You mean to say the criteria of ascertaining the identity of the

Assuming that Osmundo Canlas was negligent in giving Vicente Maosca

mortgagor does not depend so much on the signature on the residence

the opportunity to perpetrate the fraud, by entrusting to latter the owner's

certificate they have presented.

copy of the transfer certificates of title of subject parcels of land, it cannot

be denied that the bank had the last clear chance to prevent the fraud, by

A: We have to accept that

the simple expedient of faithfully complying with the requirements for banks
to ascertain the identity of the persons transacting with them.

xxx xxx xxx

For not observing the degree of diligence required of banking institutions,
A: We accepted the signature on the basis of the mortgage in favor of
ATTY. MAGNO duly notarized which I have been reiterrting (sic)

whose business is impressed with public interest, respondent Asian

Savings Bank has to bear the loss sued upon.

entitled to full faith considering that it is a public instrument.

In ruling for respondent bank, the Court of Appeals concluded that the
ATTY. CARLOS:

petitioner Osmundo Canlas was a party to the fraudulent scheme of

Maosca and therefore, estopped from impugning the validity of subject

What other requirement did you take into account in ascertaining the

deed of mortgage; ratiocinating thus:

identification of the parties particularly the mortgagor in this case.

"xxx xxx xxx

A: Residence Certificate.

Thus, armed with the titles and the special power of attorney, Manosca
went to the defendant bank and applied for a loan. And when Maosca

Q: Is that all, is that the only requirement?

came over to the bank to submit additional documents pertinent to his loan
application, Osmundo Canlas was with him, together with a certain Rogelio

A: We requested for others but they could not produce, and because they
presented to us the Residence Certificate which matches on the

Viray. At that time, Osmundo Canlas was introduced to the bank personnel
as 'Leonardo Rey.

signature on the Residence Certificate in favor of Atty. Magno."[14]

Evidently, the efforts exerted by the bank to verify the identity of the couple

When he was introduced as 'Leonardo Rey for the first time Osmundo

posing as Osmundo Canlas and Angelina Canlas fell short of the

should have corrected Maosca right away. But he did not. Instead, he

responsibility of the bank to observe more than the diligence of a good

even allowed Maosca to avail of his (Osmundo's) membership privileges

father of a family. The negligence of respondent bank was magnified by the at the Metropolitan Club when Maosca invited two officers of the
fact that the previous deed of mortgage (which was used as the basis for

defendant bank to a luncheon meeting which Osmundo also attended. And

checking the genuineness of the signatures of the suppose Canlas

during that meeting, Osmundo did not say who he really is, but even let

spouses) did not bear the tax account number of the spouses,

[15]

as well as

the Community Tax Certificate of Angelina Canlas.[16] But such fact

Maosca introduced him again as 'Leonardo Rey, which all the more
indicates that he connived with Maosca in deceiving the defendant bank.

notwithstanding, the bank did not require the impostors to submit additional
61 | P a g e

Torts 5

Finally after the loan was finally approved, Osmundo accompanied

of Mr. Maosca.

Maosca to the bank when the loan was released. At that time a manger's
check for P200,000.00 was issued in the name of Oscar Motorworks,

QUESTION:I see ... other than the business of Mr. Maosca, were there

which Osmundo admits he owns and operates.

Collectively, the foregoing circumstances cannot but conjure to a single

any other topic discussed?

ANSWER: YES.

conclusion that Osmundo actively participated in the loan application of

defendant Asian Savings Bank, which culminated in his receiving a portion
of the process thereof."

QUESTION:And what was the topic?

[18]

A meticulous and painstaking scrutiny of the Records on hand, reveals,

ANSWER: General Economy then.

however, that the findings arrived at by the Court of Appeals are barren of
xxx xxx xxx"[22]

any sustainable basis. For instance, the execution of the deeds of

mortgages constituted by Maosca on subject pieces of property of

Verily, Osmundo Canlas was left unaware of the illicit plan of Maosca,

petitioners were made possible not by the Special Power of Attorney

explaining thus why he (Osmundo) did not bother to correct what Maosca

executed by Osmundo Canlas in favor of Maosca but through the use of

misrepresented and to assert ownership over the two parcels of land in

impostors who misrepresented themselves as the spouses Angelina

question.

Canlas and Osmundo Canlas. It cannot be said therefore, that the

petitioners authorized Vicente Maosca to constitute the mortgage on their

Not only that; while it is true that Osmundo Canlas was with Vicente

parcels of land.

Maosca when the latter submitted the documents needed for his loan
application, and when the check of P200,000.000 was released, the former

What is more, Osmundo Canlas was introduced as "Leonardo Rey" by

did not know that the collateral used by Maosca for the said loan were

Vicente Maosca, only on the occasion of the luncheon meeting at the

their (Canlas spouses) properties. Osmundo happened to be with

Metropolitan Club.[19] Thereat, the failure of Osmundo Canlas to rectify

Maosca at the time because he wanted to make sure that Maosca would

Maosca's misrepresentations could not be taken as a fraudulent act. As

make good his promise to pay the balance of the purchase price of the said

well explained by the former, he just did not want to embarrass Maosca,

lots out of the proceeds of the loan.[23]

so that he waited for the end of the meeting to correct Maosca.[20]

The receipt by Osmundo Canlas of the P200,000.00 check from ASB could
Then, too, Osmundo Canlas recounted that during the said luncheon

not estop him from assailing the validity of the mortgage because the said

meeting, they did not talk about the security or collateral for the loan of

amount was in payment of the parcels of land he sold to Maosca. [24]

Maosca with ASB.[21] So also, Mrs. Josefina Rojo, who was the Account
Officer of Asian Savings Bank when Maosca applied for subject loan,

What is decisively clear on record is that Maosca managed to keep

corroborated the testimony of Osmundo Canlas, she testified:

Osmundo Canlas uninformed of his (Maosca's) intention to use the

parcels of land of the Canlas spouses as security for the loan obtained

"xxx xxx xxx

from Asian Savings Bank. Since Vicente Maosca showed Osmundo

Canlas several certificates of title of lots which, according to Maosca were

QUESTION:Now could you please describe out the lunch conference at

the Metro Club in Makati?

the collaterals, Osmundo Canlas was confident that their (Canlases)

parcels of land were not involved in the loan transaction with the Asian
Savings Bank.[25] Under the attendant facts and circumstances, Osmundo

ANSWER: Mr. Mangubat, Mr. Maosca and I did not discuss with respect
to the loan application and discuss primarily his business.

xxx xxx xxx

Canlas was undoubtedly negligent, which negligence made them

(petitioners) undeserving of an award of Attorneys fees.

Settled is the rule that a contract of mortgage must be constituted only by

the absolute owner on the property mortgaged;[26] a mortgage, constituted

QUESTION:So, what is the main topic of your discussion during the

meeting?

by an impostor is void.[27] Considering that it was established indubitably

that the contract of mortgage sued upon was entered into and signed by
impostors who misrepresented themselves as the spouses Osmundo

ANSWER: The main topic was then, about his business although, Mr,
Leonardo Rey, who actually turned out as Mr. Canlas, supplier

Canlas and Angelina Canlas, the Court is of the ineluctible conclusion and
finding that subject contract of mortgage is a complete nullity.
62 | P a g e

Torts 5

WHEREFORE, the Petition is GRANTED and the Decision of the Court of

Appeals, dated September 30, 1993, in CA-G.R. CV No. 25242 SET
ASIDE. The Decision of Branch 59 of the Regional Trial Court of Makati
City in Civil Case No. M-028 is hereby REINSTATED. No pronouncement
as to costs.

SO ORDERED.

63 | P a g e

Torts 5

LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION

pick-up.[6] Deocampo alleged that he tried to avoid the pick-up but he was

(LADECO), HENRY BERENGUEL, AND APOLONIO R. DEOCAMPO,

unable to avoid the collision. Deocampo stated that he did not apply the

PETITIONERS, VS. MICHAEL RAYMOND ANGALA, RESPONDENT.

brakes because he knew the collision was unavoidable. Deocampo

admitted that he stepped on the brakes only after the collision.

DECISION
The Ruling of the Trial Court
CARPIO, J.:
In its 3 March 1995 Decision,[7] the Regional Trial Court of Davao City,
The Case

Branch 15 (trial court) ruled:

WHEREFORE, judgment is hereby rendered ordering the defendants

Before the Court is a petition for review[1] assailing the 25 July 2001
[2]

[3]

Decision and 11 March 2002 Resolution of the Court of Appeals in CA-

LADECO and Apolonio Deocampo to solidarily pay the plaintiffs the

following sums:

G.R. CV No. 51134.

1.
The Antecedent Facts

Twenty three thousand two hundred (P23,200.00)

pesos as actual damages.

On 4 May 1993, at about 2:45 p.m., a Datsun crewcab with plate no. PEC-

2.

Ten thousand (P10,000.00) pesos as moral damages.

3.

Ten thousand (P10,000.00) pesos as attorney's fees.

4.

Costs of suit.

903 driven by Apolonio Deocampo (Deocampo) bumped into a 1958 Chevy

pick-up with plate no. MAM-475 owned by Michael Raymond Angala
(respondent) and driven by Bernulfo Borres (Borres). Lapanday Agricultural
and Development Corporation (LADECO) owned the crewcab which was
assigned to its manager Manuel Mendez (Mendez). Deocampo was the
driver and bodyguard of Mendez. Both vehicles were running along Rafael

SO ORDERED.[8]

Castillo St., Agdao, Davao City heading north towards Lanang, Davao City.

The trial court found that the crewcab was running very fast while following

The left door, front left fender, and part of the front bumper of the pick-up

the pick-up and that the crewcab's speed was the proximate cause of the

were damaged.

accident. The trial court observed that the crewcab stopped 21 meters
away from the point of impact despite Deocampo's claim that he stepped

Respondent filed an action for Quasi-Delict, Damages, and Attorney's Fees on the brakes moments after the collision. The trial court ruled that
against LADECO, its administrative officer Henry Berenguel[4] (Berenguel)

Deocampo had the last opportunity to avoid the accident.

and Deocampo. Respondent alleged that his pick-up was slowing down to
about five to ten kilometers per hour (kph) and was making a left turn

The trial court found that Berenguel was not liable because he was not the

preparatory to turning south when it was bumped from behind by the

owner of the crewcab.

crewcab which was running at around 60 to 70 kph. The crewcab stopped

21 meters from the point of impact. Respondent alleged that he heard a

LADECO and Deocampo (petitioners)[9] filed a motion for reconsideration.

screeching sound before the impact. Respondent was seated beside the

The trial court denied petitioners' motion in its 13 June 1995 Order.[10]

driver and was looking at the speedometer when the accident took place.
Respondent testified that Borres made a signal because he noticed a
blinking light while looking at the speedometer.

Petitioners filed an appeal before the Court of Appeals.

[5]

The Ruling of the Court of Appeals

Respondent sent a demand letter to LADECO for the payment of the
damages he incurred because of the accident but he did not receive any

The Court of Appeals affirmed in toto the trial court's decision.

reply. Thus, respondent filed the case against LADECO, Berenguel, and
Deocampo.

The Court of Appeals sustained the finding of the trial court that Deocampo
was negligent. The Court of Appeals applied the doctrine of last clear

Deocampo alleged that the pick-up and the crewcab he was driving were

chance and ruled that Deocampo had the responsibility of avoiding the

both running at about 40 kph. The pick-up was running along the outer

pick-up.

lane. The pick-up was about 10 meters away when it made a U-turn
towards the left. Deocampo testified that he did not see any signal from the

The Court of Appeals also sustained the solidary liability of LADECO and
64 | P a g e

Torts 5

Deocampo. The Court of Appeals ruled that under Article 2180 of the Civil

intersection in the lane for traffic to the right of and nearest to the center

Code, the negligence of the driver is presumed to be the negligence of the

line of the highway, and, in turning, shall pass to the left of the center of the

owner of the vehicle.

intersection, except that, upon highways laned for traffic and upon one-way
highways, a left turn shall be made from the left lane of traffic in the

The dispositive portion of the Court of Appeals' Decision reads:

direction in which the vehicle is proceeding.

WHEREFORE, premises considered, the appeal is DISMISSED for lack of

Petitioners further allege that since Borres was violating a traffic rule at the

merit, and the assailed Decision of the Court a quo in Civil Case No.

time of the accident, respondent and Borres were the parties at fault.

22067-93 is AFFIRMED in toto. Costs against defendants-appellants.

Petitioners cite Article 2185 of the Civil Code, thus:

Art. 2185. Unless there is proof to the contrary, it is presumed that a

[11]

SO ORDERED.

person driving a motor vehicle has been negligent if at the time of the

Petitioners filed a motion for reconsideration. In its 11 March 2002

mishap, he was violating any traffic regulation.

Resolution, the Court of Appeals denied the motion for lack of merit.

We rule that both parties were negligent in this case. Borres was at the
outer lane when he executed a U-turn. Following Section 45(b) of RA 4136,

Hence, the petition before this Court.

Borres should have stayed at the inner lane which is the lane nearest to
the center of the highway. However, Deocampo was equally negligent.

The Issues

Borres slowed down the pick-up preparatory to executing the U-turn.

Deocampo should have also slowed down when the pick-up slowed down.

The issues before the Court are the following:

Deocampo admitted that he noticed the pick-up when it was still about 20
meters away from him.[13] Vehicular traffic was light at the time of the

1.

Whether the provisions of Section 45(b) of Republic

[12]

Act No. 4136

incident. The pick-up and the crewcab were the only vehicles on the

(RA 4136) and Article 2185 of the Civil road.[14] Deocampo could have avoided the crewcab if he was not driving

Code apply to this case; and

very fast before the collision, as found by both the trial court and the Court
of Appeals. We sustain this finding since factual findings of the Court of

2.

Whether respondent is entitled to the damages

Appeals affirming those of the trial court are conclusive and binding on this

awarded.

Court.[15] Further, the crewcab stopped 21 meters from the point of impact.
It would not have happened if Deocampo was not driving very fast.

The Ruling of this Court

Doctrine of Last Clear Chance Applies
The petition is partly meritorious.
Since both parties are at fault in this case, the doctrine of last clear chance
Both Drivers are Negligent

applies.

Both the trial court and the Court of Appeals found that Deocampo was at

The doctrine of last clear chance states that where both parties are

fault because he was driving very fast prior to the collision. The Court of

negligent but the negligent act of one is appreciably later than that of the

Appeals sustained the trial court's finding that Deocampo was running

other, or where it is impossible to determine whose fault or negligence

more than the normal cruising speed. Both the trial court and the Court of

caused the loss, the one who had the last clear opportunity to avoid the

Appeals noted that the crewcab stopped 21 meters away from the point of

loss but failed to do so is chargeable with the loss.[16] In this case,

impact. Deocampo admitted that he stepped on the brakes only after the

Deocampo had the last clear chance to avoid the collision. Since

collision.

Deocampo was driving the rear vehicle, he had full control of the situation
since he was in a position to observe the vehicle in front of him.[17]

Petitioners allege that Borres did not take the proper lane before executing

Deocampo had the responsibility of avoiding bumping the vehicle in front of

the U-turn. Petitioners allege that Borres violated Section 45(b) of RA 4136

him.[18] A U-turn is done at a much slower speed to avoid skidding and

and it was his recklessness that was the proximate cause of the accident.

overturning, compared to running straight ahead.[19] Deocampo could have

avoided the vehicle if he was not driving very fast while following the pick-

Section 45(b) of RA 4136 states:

up. Deocampo was not only driving fast, he also admitted that he did not

Sec. 45. Turning at intersections. x x x

step on the brakes even upon seeing the pick-up. He only stepped on the
brakes after the collision.

(b) The driver of a vehicle intending to turn to the left shall approach such
65 | P a g e

Torts 5

Petitioners are Solidarily Liable

LADECO alleges that it should not be held jointly and severally liable with
Deocampo because it exercised due diligence in the supervision and
selection of its employees. Aside from this statement, LADECO did not
proffer any proof to show how it exercised due diligence in the supervision
and selection of its employees. LADECO did not show its policy in hiring its
drivers, or the manner in which it supervised its drivers. LADECO failed to
substantiate its allegation that it exercised due diligence in the supervision
and selection of its employees.

Hence, we hold LADECO solidarily liable with Deocampo.

Respondent is Entitled to Moral Damages

We sustain the award of moral damages. Moral damages are awarded to

allow a plaintiff to obtain means, diversion, or amusement that will serve to
alleviate the moral suffering he has undergone due to the defendant's
culpable action.[20] The trial court found that respondent, who was on board
the pick-up when the collision took place, suffered shock, serious anxiety,
and fright when the crewcab bumped his pick-up. We sustain the trial court
and the Court of Appeals in ruling that respondent sufficiently showed that
he suffered shock, serious anxiety, and fright which entitle him to moral
damages.

Both the trial court and the Court of Appeals failed to give any justification
for the award of attorney's fees. Awards of attorney's fees must be based
on findings of fact and of law and stated in the decision of the trial court.[21]
Further, no premium should be placed on the right to litigate.[22] Hence, we
delete the award of attorney's fees.

WHEREFORE, we AFFIRM the 25 July 2001 Decision and 11 March 2002

Resolution of the Court of Appeals in CA-G.R. CV No. 51134 with
MODIFICATION by deleting the award of attorney's fees.

SO ORDERED.

66 | P a g e

Torts 5

PHILIPPINE BANK OF COMMERCE, NOW ABSORBED BY PHILIPPINE

deposits, on all occasions, were not credited to RMC's account but were

COMMERCIAL INTERNATIONAL BANK, ROGELIO LACSON, DIGNA

instead deposited to Account No. 53-01734-7 of Yabut's husband,

DE LEON, MARIA ANGELITA PASCUAL, ET AL., PETITIONERS, VS.

Bienvenido Cotas who likewise maintains an account with the same bank.

THE COURT OF APPEALS, ROMMEL'S MARKETING CORP.,

During this period, petitioner bank had, however, been regularly furnishing

REPRESENTED BY ROMEO LIPANA, ITS PRESIDENT & GENERAL

private respondent with monthly statements showing its current accounts

MANAGER, RESPONDENTS.

balances. Unfortunately, it had never been the practice of Romeo Lipana to

check these monthly statements of account reposing complete trust and

DECISION

HERMOSISIMA, JR., J.:

confidence on petitioner bank.

Irene Yabut's modus operandi is far from complicated. She would

accomplish two (2) copies of the deposit slip, an original and a duplicate.

Challenged in this petition for review is the Decision dated February 28,

The original showed the name of her husband as depositor and his current

1991[1] rendered by public respondent Court of Appeals which affirmed the

account number. On the duplicate copy was written the account number of

Decision dated November 15, 1985 of the Regional Trial Court, National

her husband but the name of the account holder was left blank. PBC's

Capital Judicial Region, Branch CLX (160), Pasig City, in Civil Case No.

teller, Azucena Mabayad, would, however, validate and stamp both the

27288 entitled Rommel's Marketing Corporation, etc. v. Philippine Bank of

original and the duplicate of these deposit slips retaining only the original

Commerce, now absorbed by Philippine Commercial and Industrial Bank.

copy despite the lack of information on the duplicate slip. The second copy
was kept by Irene Yabut allegedly for record purposes. After validation,

The case stemmed from a complaint filed by the private respondent

Yabut would then fill up the name of RMC in the space left blank in the

Rommel's Marketing Corporation (RMC for brevity), represented by its

duplicate copy and change the account number written thereon, which is

President and General Manager Romeo Lipana, to recover from the former

that of her husband's, and make it appear to be RMC's account number,

Philippine Bank of Commerce (PBC for brevity), now absorbed by the

i.e., C.A. No. 53-01980-3. With the daily remittance records also prepared

Philippine Commercial International Bank, the sum of P304,979.74

by Ms. Yabut and submitted to private respondent RMC together with the

representing various deposits it had made in its current account with said

validated duplicate slips with the latter's name and account number, she

bank but which were not credited to its account, and were instead

made her company believe that all the while the amounts she deposited

deposited to the account of one Bienvenido Cotas, allegedly due to the

were being credited to its account when, in truth and in fact, they were

gross and inexcusable negligence of the petitioner bank.

being deposited by her and credited by the petitioner bank in the account
of Cotas. This went on in a span of more than one (1) year without private

RMC maintained two (2) separate current accounts, Current Account Nos.

respondent's knowledge.

53-01980-3 and 53-01748-7, with the Pasig Branch of PBC in connection

with its business of selling appliances.

Upon discovery of the loss of its funds, RMC demanded from petitioner
bank the return of its money, but as its demand went unheeded, it filed a

In the ordinary and usual course of banking operations, current account

collection suit before the Regional Trial Court of Pasig, Branch 160. The

deposits are accepted by the bank on the basis of deposit slips prepared

trial court found petitioner bank negligent and ruled as follows:

and signed by the depositor, or the latter's agent or representative, who

indicates therein the current account number to which the deposit is to be

"WHEREFORE, judgment is hereby rendered sentencing defendant

credited, the name of the depositor or current account holder, the date of

Philippine Bank of Commerce, now absorbed by defendant Philippine

the deposit, and the amount of the deposit either in cash or checks. The

Commercial & Industrial Bank, and defendant Azucena Mabayad to pay

deposit slip has an upper portion or stub, which is detached and given to

the plaintiff, jointly and severally, and without prejudice to any criminal

the depositor or his agent; the lower portion is retained by the bank. In

action which may be instituted if found warranted:

some instances, however, the deposit slips are prepared in duplicate by

the depositor. The original of the deposit slip is retained by the bank, while

1.

the duplicate copy is returned or given to the depositor.

interest thereon at the legal rate from the filing of the complaint;

From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to

2.

A sum equivalent to 14% thereof, as exemplary damages;

secretary, Irene Yabut, for the purpose of depositing said funds in the

3.

A sum equivalent to 25% of the total amount due, as and for

current accounts of RMC with PBC. It turned out, however, that these

attorney's fees; and

The sum of P304,979.72, representing plaintiff's lost deposit, plus

have entrusted RMC funds in the form of cash totalling P304,979.74 to his

67 | P a g e

Torts 5

Yabut will be depositing cash to its account. Thus, it was impossible for the
4.

Costs.

bank to know the fraudulent design of Yabut considering that her husband,
Bienvenido Cotas, also maintained an account with the bank For the bank

Defendants' counterclaim is hereby dismissed for lack of merit."

[2]

to inquire into the ownership of the cash deposited by Ms. Irene Yabut
would be irregular. Otherwise stated, it was RMC's negligence in entrusting

On appeal, the appellate court affirmed the foregoing decision with

cash to a dishonest employee which provided Ms. Irene Yabut the

modifications, viz:

opportunity to defraud RMC.[6]

"WHEREFORE, the decision appealed from herein is MODIFIED in the

Private respondent, on the other hand, maintains that the proximate cause

sense that the awards of exemplary damages and attorney's fees specified

of the loss was the negligent act of the bank, thru its teller Ms. Azucena

therein are eliminated and instead, appellants are ordered to pay plaintiff,

Mabayad, in validating the deposit slips, both original and duplicate,

in addition to the principal sum of P304,979.74 representing plaintiff's lost

presented by Ms. Yabut to Ms. Mabayad, notwithstanding the fact that one

deposit plus legal interest thereon from the filing of the complaint,

of the deposit slips was not completely accomplished.

P25,000.00 attorney's fees and costs in the lower court as well as in this
Court."[3]

We sustain the private respondent.

Hence, this petition anchored on the following grounds:

Our law on quasi-delicts states:

1) The proximate cause of the loss is the negligence of respondent

"Art. 2176.

Rommel Marketing Corporation and Romeo Lipana in entrusting cash to a

there being fault or negligence, is obliged to pay for the damage done.

dishonest employee.

Such fault or negligence if there is no pre-existing contractual relation

Whoever by act or omission causes damage to another,

between the parties, is called a quasi-delict and is governed by the

2) The failure of respondent Rommel Marketing Corporation to cross-check

provisions of this Chapter."

the bank's statements of account with its own records during the entire
period of more than one (1) year is the proximate cause of the commission

There are three elements of a quasi-delict: (a) damages suffered by the

of subsequent frauds and misappropriation committed by Ms. Irene Yabut.

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

3) The duplicate copies of the deposit slips presented by respondent

between the fault or negligence of the defendant and the damages

Rommel Marketing Corporation are falsified and are not proof that the

incurred by the plaintiff.[7]

amounts appearing thereon were deposited to respondent Rommel

Marketing Corporation's account with the bank.

In the case at bench, there is no dispute as to the damage suffered by the

private respondent (plaintiff in the trial court) RMC in the amount of P304,

4) The duplicate copies of the deposit slips were used by Ms. Irene Yabut

979.74. It is in ascribing fault or negligence which caused the damage

to cover up her fraudulent acts against respondent Rommel Marketing

where the parties point to each other as the culprit.

Corporation, and not as records of deposits she made with the bank.[4]
Negligence is the omission to do something which a reasonable man,
The petition has no merit.

guided by those considerations which ordinarily regulate the conduct of

human affairs, would do, or the doing of something which a prudent and

Simply put, the main issue posited before us is: What is the proximate

reasonable man would do. The seventy-eight (78)-year-old, yet still

cause of the loss, to the tune of P304,979.74, suffered by the private

relevant, case of Picart v. Smith,[8] provides the test by which to determine

respondent RMC -- petitioner bank's negligence or that of private

the existence of negligence in a particular case which may be stated as

respondent's?

follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would

Petitioners submit that the proximate cause of the loss is the negligence of

have used in the same situation? If not, then he is guilty of negligence. The

respondent RMC and Romeo Lipana in entrusting cash to a dishonest

law here in effect adopts the standard supposed to be supplied by the

[5]

employee in the person of Ms. Irene Yabut. According to them, it was

imaginary conduct of the discreet paterfamilias of the Roman law. The

impossible for the bank to know that the money deposited by Ms. Irene

existence of negligence in a given case is not determined by reference to

Yabut belong to RMC; neither was the bank forewarned by RMC that

the personal judgment of the actor in the situation before him. The law
68 | P a g e

Torts 5

considers what would be reckless, blameworthy, or negligent in the man of

Q: Now is the depositor's stub which you issued to your clients validated?

ordinary intelligence and prudence and determines liability by that.

A:

Yes, sir. "[10] [Emphasis ours.]

Clearly, Ms. Mabayad failed to observe this very important procedure. The
Applying the above test, it appears that the bank's teller, Ms. Azucena

fact that the duplicate slip was not compulsorily required by the bank in

Mabayad, was negligent in validating, officially stamping and signing all the

accepting deposits should not relieve the petitioner bank of responsibility.

deposit slips prepared and presented by Ms. Yabut, despite the glaring fact

The odd circumstance alone that such duplicate copy lacked one vital

that the duplicate copy was not completely accomplished contrary to the

information -- that of the name of the account holder -- should have already

self-imposed procedure of the bank with respect to the proper validation of

put Ms. Mabayad on guard. Rather than readily validating the incomplete

deposit slips, original or duplicate, as testified to by Ms. Mabayad herself,

duplicate copy, she should have proceeded more cautiously by being more

thus:

probing as to the true reason why the name of the account holder in the
duplicate slip was left blank while that in the original was filled up. She

"Q: Now, as teller of PCIB, Pasig Branch, will you please tell us Mrs.

should not have been so naive in accepting hook, line and sinker the too

Mabayad your important duties and functions?

shallow excuse of Ms. Irene Yabut to the effect that since the duplicate

A:

copy was only for her personal record, she would simply fill up the blank

I accept current and savings deposits from depositors and

space later on.[11] A "reasonable man of ordinary prudence"[12] would not

encashments.

have given credence to such explanation and would have insisted that the
Q: Now in the handling of current account deposits of bank clients, could

space left blank be filled up as a condition for validation. Unfortunately, this

you tell us the procedure you follow?

was not how bank teller Mabayad proceeded thus resulting in huge losses

A:

to the private respondent.

The client or depositor or the authorized representative prepares a

deposit slip by filling up the deposit slip with the name, the account
number, the date, the cash breakdown, if it is deposited for cash, and the

Negligence here lies not only on the part of Ms. Mabayad but also on the

check number, the amount and then he signs the deposit slip.

part of the bank itself in its lackadaisical selection and supervision of Ms.
Mabayad. This was exemplified in the testimony of Mr. Romeo Bonifacio,

Q: Now, how many deposit slips do you normally require in accomplishing

then Manager of the Pasig Branch of the petitioner bank and now its Vice-

current account deposit, Mrs. Mabayad?

President, to the effect that, while he ordered the investigation of the

A:

incident, he never came to know that blank deposit slips were validated in

The bank requires only one copy of the deposit although some of our

clients prepare the deposit slip in duplicate.

total disregard of the bank's validation procedures, viz:

"Q: Did he ever tell you that one of your cashiers affixed the stamp mark of

Q: Now in accomplishing current account deposits from your clients, what

the bank on the deposit slips and they validated the same with the

do you issue to the depositor to evidence the deposit made?

machine, the fact that those deposit slips were unfilled up, is there any

A:

report similar to that?

We issue or we give to the clients the depositor's stub as a receipt of

the deposit.

A:

Q: And who prepares the deposit slip?

Q: The teller validated the blank deposit slip?

A:

A:

The depositor or the authorized representative sir.

No, it was not the cashier but the teller.

No it was not reported.

Q: Where does the depositor's stub comes (sic) from Mrs. Mabayad, is it

Q: You did not know that any one in the bank tellers or cashiers validated

with the deposit slip?

the blank deposit slip?

A:

A:

The depositor's stub is connected with the deposit slip or the bank's

I am not aware of that.

copy. In a deposit slip, the upper portion is the depositor's stub and the
lower portion is the bank's copy, and you can detach the bank's copy from

Q: It is only now that you are aware of that?

the depositor's stub by tearing it sir.

A:

Q: Now what do you do upon presentment of the deposit slip by the

Prescinding from the above, public respondent Court of Appeals aptly

depositor or the depositor's authorized representative?

observed:

A:

We see to it that the deposit slip

[9]

Yes, sir."[13]

is properly accomplished and then

we count the money and then we tally it with the deposit slip sir.

xxx
xxx

xxx
69 | P a g e

Torts 5

It was in fact only when he testified in this case in February, 1983, or after

last fair chance, could have avoided the impending harm by the exercise of

the lapse of more than seven (7) years counted from the period when the

due diligence.[20] Here, assuming that private respondent RMC was

funds in question were deposited in plaintiffs accounts (May, 1975 to July,

negligent in entrusting cash to a dishonest employee, thus providing the

1976) that bank manager Bonifacio admittedly became aware of the

latter with the opportunity to defraud the company, as advanced by the

practice of his teller Mabayad of validating blank deposit slips.

petitioner, yet it cannot be denied that the petitioner bank, thru its teller,

Undoubtedly, this is gross, wanton, and inexcusable negligence in the

had the last clear opportunity to avert the injury incurred by its client, simply

appellant bank's supervision of its employees."[14]

by faithfully observing their self-imposed validation procedure.

It was this negligence of Ms. Azucena Mabayad, coupled by the negligence At this juncture, it is worth to discuss the degree of diligence ought to be
of the petitioner bank in the selection and supervision of its bank teller,

exercised by banks in dealing with their clients.

which was the proximate cause of the loss suffered by the private
respondent, and not the latter's act of entrusting cash to a dishonest

The New Civil Code provides:

employee, as insisted by the petitioners.

"ART. 1173. The fault or negligence of the obligor consists in the

omission of that diligence which is required by the nature of the obligation

Proximate cause is determined on the facts of each case upon mixed

considerations of logic, common sense, policy and precedent.
Bataclan v. Medina,
Court of Appeals,

[17]

[16]

[15]

Vda. de

reiterated in the case of Bank of the Phil. Islands v.

and corresponds with the circumstances of the persons, of the time and of
the place. When negligence shows bad faith, the provisions of articles
1171 and 2201, paragraph 2, shall apply.

defines proximate cause as "that cause, which, in

natural and continuous sequence, unbroken by any efficient intervening

If the law or contract does not state the diligence which is to be observed in

cause, produces the injury, and without which the result would not have

the performance, that which is expected of a good father of a family shall

occurred. x x x." In this case, absent the act of Ms. Mabayad in negligently

be required. (1104a)"

validating the incomplete duplicate copy of the deposit slip, Ms. Irene

In the case of banks, however, the degree of diligence required is more

Yabut would not have the facility with which to perpetrate her fraudulent

than that of a good father of a family. Considering the fiduciary nature of

scheme with impunity. Apropos, once again, is the pronouncement made

their relationship with their depositors, banks are duty bound to treat the

by the respondent appellate court, to wit:

accounts of their clients with the highest degree of care. [21]

" x x x. Even if Yabut had the fraudulent intention to misappropriate the

funds entrusted to her by plaintiff, she would not have been able to deposit

As elucidated in Simex International (Manila), Inc. v. Court of Appeals,[22] in

those funds in her husband's current account, and then make plaintiff

every case, the depositor expects the bank to treat his account with the

believe that it was in the latter's accounts wherein she had deposited them,

utmost fidelity, whether such account consists only of a few hundred pesos

had it not been for bank teller Mabayad's aforesaid gross and reckless

or of millions. The bank must record every single transaction accurately,

negligence. The latter's negligence was thus the proximate, immediate and

down to the last centavo, and as promptly as possible. This has to be done

efficient cause that brought about the loss claimed by plaintiff in this case,

if the account is to reflect at any given time the amount of money the

and the failure of plaintiff to discover the same soon enough by failing to

depositor can dispose as he sees fit, confident that the bank will deliver it

scrutinize the monthly statements of account being sent to it by appellant

as and to whomever he directs. A blunder on the part of the bank, such as

bank could not have prevented the fraud and misappropriation which Irene

the failure to duly credit him his deposits as soon as they are made, can

Yabut had already completed when she deposited plaintiff's money to the

cause the depositor not a little embarrassment if not financial loss and

account of her husband instead of to the latter's accounts."

[18]

perhaps even civil and criminal litigation.

Furthermore, under the doctrine of "last clear chance" (also referred to, at
times as "supervening negligence" or as "discovered peril"), petitioner bank

The point is that as a business affected with public interest and because of

was indeed the culpable party. This doctrine, in essence, states that where

the nature of its functions, the bank is under obligation to treat the accounts

both parties are negligent, but the negligent act of one is appreciably later

of its depositors with meticulous care, always having in mind the fiduciary

in time than that of the other, or when it is impossible to determine whose

nature of their relationship. In the case before us, it is apparent that the

fault or negligence should be attributed to the incident, the one who had

petitioner bank was remiss in that duty and violated that relationship.

the last clear opportunity to avoid the impending harm and failed to do so is
chargeable with the consequences thereof.[19] Stated differently, the rule

Petitioners nevertheless aver that the failure of respondent RMC to cross-

would also mean that an antecedent negligence of a person does not

check the bank's statements of account with its own records during the

preclude the recovery of damages for the supervening negligence of, or

entire period of more than one (1) year is the proximate cause of the

bar a defense against liability sought by another, if the latter, who had the

commission of subsequent frauds and misappropriation committed by Ms.

70 | P a g e

Torts 5

Irene Yabut.

Proportionate costs.
SO ORDERED.

We do not agree.

While it is true that had private respondent checked the monthly

statements of account sent by the petitioner bank to RMC, the latter would
have discovered the loss early on, such cannot be used by the petitioners
to escape liability. This omission on the part of the private respondent does
not change the fact that were it not for the wanton and reckless negligence
of the petitioners' employee in validating the incomplete duplicate deposit
slips presented by Ms. Irene Yabut, the loss would not have occurred.
Considering, however, that the fraud was committed in a span of more than
one (1) year covering various deposits, common human experience
dictates that the same would not have been possible without any form of
collusion between Ms. Yabut and bank teller Mabayad. Ms. Mabayad was
negligent in the performance of her duties as bank teller nonetheless.
Thus, the petitioners are entitled to claim reimbursement from her for
whatever they shall be ordered to pay in this case.

The foregoing notwithstanding, it cannot be denied that, indeed, private

respondent was likewise negligent in not checking its monthly statements
of account. Had it done so, the company would have been alerted to the
series of frauds being committed against RMC by its secretary. The
damage would definitely not have ballooned to such an amount if only
RMC, particularly Romeo Lipana, had exercised even a little vigilance in
their financial affairs. This omission by RMC amounts to contributory
negligence which shall mitigate the damages that may be awarded to the
private respondent[23] under Article 2179 of the New Civil Code, to wit:
"x x x. When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of
the injury being the defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded."
In view of this, we believe that the demands of substantial justice are
satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the
damage awarded by the respondent appellate court, except the award of
P25,000.00 attorney's fees, shall be borne by private respondent RMC;
only the balance of 60% needs to be paid by the petitioners. The award of
attorney's fees shall be borne exclusively by the petitioners.

WHEREFORE, the decision of the respondent Court of Appeals is modified

by reducing the amount of actual damages private respondent is entitled to
by 40%. Petitioners may recover from Ms. Azucena Mabayad the amount
they would pay the private respondent. Private respondent shall have
recourse against Ms. Irene Yabut. In all other respects, the appellate
court's decision is AFFIRMED.

71 | P a g e

Torts 5

THE CONSOLIDATED BANK AND TRUST CORPORATION,

and presented to Teller No. 6 the deposit slip and check. The teller

PETITIONER, VS. COURT OF APPEALS AND L.C. DIAZ AND

stamped the words "DUPLICATE" and "SAVING TELLER 6 SOLIDBANK

COMPANY, CPA'S, RESPONDENTS.

HEAD OFFICE" on the duplicate copy of the deposit slip. When Macaraya
asked for the passbook, Teller No. 6 told Macaraya that someone got the

DECISION

passbook but she could not remember to whom she gave the passbook.
When Macaraya asked Teller No. 6 if Calapre got the passbook, Teller No.

CARPIO, J.:

6 answered that someone shorter than Calapre got the passbook. Calapre
was then standing beside Macaraya.
The Case
Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 for

Before us is a petition for review of the Decision[1] of the Court of Appeals

the deposit of a check for P90,000 drawn on Philippine Banking

dated 27 October 1998 and its Resolution dated 11 May 1999. The

Corporation ("PBC"). This PBC check of L.C. Diaz was a check that it had

assailed decision reversed the Decision[2] of the Regional Trial Court of

"long closed."[4] PBC subsequently dishonored the check because of

Manila, Branch 8, absolving petitioner Consolidated Bank and Trust

insufficient funds and because the signature in the check differed from

Corporation, now known as Solidbank Corporation ("Solidbank"), of any

PBC's specimen signature. Failing to get back the passbook, Macaraya

liability. The questioned resolution of the appellate court denied the motion

went back to her office and reported the matter to the Personnel Manager

for reconsideration of Solidbank but modified the decision by deleting the

of L.C. Diaz, Emmanuel Alvarez.

award of exemplary damages, attorney's fees, expenses of litigation and

cost of suit.

The following day, 15 August 1991, L.C. Diaz through its Chief Executive
Officer, Luis C. Diaz ("Diaz"), called up Solidbank to stop any transaction
The Facts

using the same passbook until L.C. Diaz could open a new account. [5] On
the same day, Diaz formally wrote Solidbank to make the same request. It

Solidbank is a domestic banking corporation organized and existing under

was also on the same day that L.C. Diaz learned of the unauthorized

Philippine laws. Private respondent L.C. Diaz and Company, CPA's ("L.C.

withdrawal the day before, 14 August 1991, of P300,000 from its savings

Diaz"), is a professional partnership engaged in the practice of accounting.

account. The withdrawal slip for the P300,000 bore the signatures of the
authorized signatories of L.C. Diaz, namely Diaz and Rustico L. Murillo.

Sometime in March 1976, L.C. Diaz opened a savings account with

The signatories, however, denied signing the withdrawal slip. A certain

Solidbank, designated as Savings Account No. S/A 200-16872-6.

Noel Tamayo received the P300,000.

On 14 August 1991, L.C. Diaz through its cashier, Mercedes Macaraya

In an Information[6] dated 5 September 1991, L.C. Diaz charged its

("Macaraya"), filled up a savings (cash) deposit slip for P990 and a savings

messenger, Emerano Ilagan ("Ilagan") and one Roscon Verdazola with

(checks) deposit slip for P50. Macaraya instructed the messenger of L.C.

Estafa through Falsification of Commercial Document. The Regional Trial

Diaz, Ismael Calapre ("Calapre"), to deposit the money with Solidbank.

Court of Manila dismissed the criminal case after the City Prosecutor filed a

Macaraya also gave Calapre the Solidbank passbook.

Motion to Dismiss on 4 August 1992.

Calapre went to Solidbank and presented to Teller No. 6 the two deposit

On 24 August 1992, L.C. Diaz through its counsel demanded from

slips and the passbook. The teller acknowledged receipt of the deposit by

Solidbank the return of its money. Solidbank refused.

returning to Calapre the duplicate copies of the two deposit slips. Teller No.
6 stamped the deposit slips with the words "DUPLICATE" and "SAVING

On 25 August 1992, L.C. Diaz filed a Complaint[7] for Recovery of a Sum of

TELLER 6 SOLIDBANK HEAD OFFICE." Since the transaction took time

Money against Solidbank with the Regional Trial Court of Manila, Branch

and Calapre had to make another deposit for L.C. Diaz with Allied Bank, he 8. After trial, the trial court rendered on 28 December 1994 a decision
left the passbook with Solidbank. Calapre then went to Allied Bank. When

absolving Solidbank and dismissing the complaint.

Calapre returned to Solidbank to retrieve the passbook, Teller No. 6

informed him that "somebody got the passbook."[3] Calapre went back to

L.C. Diaz then appealed[8] to the Court of Appeals. On 27 October 1998,

L.C. Diaz and reported the incident to Macaraya.

the Court of Appeals issued its Decision reversing the decision of the trial
court.

Macaraya immediately prepared a deposit slip in duplicate copies with a

check of P200,000. Macaraya, together with Calapre, went to Solidbank

On 11 May 1999, the Court of Appeals issued its Resolution denying the
72 | P a g e

Torts 5

motion for reconsideration of Solidbank. The appellate court, however,

unauthorized person; and (3) the possession by an unauthorized person of

modified its decision by deleting the award of exemplary damages and

a PBC check "long closed" by L.C. Diaz, which check was deposited on the

attorney's fees.

day of the fraudulent withdrawal.

The Ruling of the Trial Court

The trial court debunked L.C. Diaz's contention that Solidbank did not
follow the precautionary procedures observed by the two parties whenever

In absolving Solidbank, the trial court applied the rules on savings account

L.C. Diaz withdrew significant amounts from its account. L.C. Diaz claimed

written on the passbook. The rules state that "possession of this book shall

that a letter must accompany withdrawals of more than P20,000. The letter

raise the presumption of ownership and any payment or payments made

must request Solidbank to allow the withdrawal and convert the amount to

by the bank upon the production of the said book and entry therein of the

a manager's check. The bearer must also have a letter authorizing him to

withdrawal shall have the same effect as if made to the depositor

withdraw the same amount. Another person driving a car must accompany

personally."

[9]

the bearer so that he would not walk from Solidbank to the office in making
the withdrawal. The trial court pointed out that L.C. Diaz disregarded these

At the time of the withdrawal, a certain Noel Tamayo was not only in

precautions in its past withdrawal. On 16 July 1991, L.C. Diaz withdrew

possession of the passbook, he also presented a withdrawal slip with the

P82,554 without any separate letter of authorization or any communication

signatures of the authorized signatories of L.C. Diaz. The specimen

with Solidbank that the money be converted into a manager's check.

signatures of these persons were in the signature cards. The teller

stamped the withdrawal slip with the words "Saving Teller No. 5." The teller

The trial court further justified the dismissal of the complaint by holding that

then passed on the withdrawal slip to Genere Manuel ("Manuel") for

the case was a last ditch effort of L.C. Diaz to recover P300,000 after the

authentication. Manuel verified the signatures on the withdrawal slip. The

dismissal of the criminal case against Ilagan.

withdrawal slip was then given to another officer who compared the
signatures on the withdrawal slip with the specimen on the signature cards.

The dispositive portion of the decision of the trial court reads:

The trial court concluded that Solidbank acted with care and observed the

IN VIEW OF THE FOREGOING, judgment is hereby rendered

rules on savings account when it allowed the withdrawal of P300,000 from

DISMISSING the complaint.

the savings account of L.C. Diaz.

The Court further renders judgment in favor of defendant bank pursuant to
The trial court pointed out that the burden of proof now shifted to L.C. Diaz

its counterclaim the amount of Thirty Thousand Pesos (P30,000.00) as

to prove that the signatures on the withdrawal slip were forged. The trial

attorney's fees.

court admonished L.C. Diaz for not offering in evidence the National
Bureau of Investigation ("NBI") report on the authenticity of the signatures

With costs against plaintiff.

on the withdrawal slip for P300,000. The trial court believed that L.C. Diaz
did not offer this evidence because it is derogatory to its action.

SO ORDERED.[12]
The Ruling of the Court of Appeals

Another provision of the rules on savings account states that the depositor
must keep the passbook "under lock and key."[10] When another person

The Court of Appeals ruled that Solidbank's negligence was the proximate

presents the passbook for withdrawal prior to Solidbank's receipt of the

cause of the unauthorized withdrawal of P300,000 from the savings

notice of loss of the passbook, that person is considered as the owner of

account of L.C. Diaz. The appellate court reached this conclusion after

the passbook. The trial court ruled that the passbook presented during the

applying the provision of the Civil Code on quasi-delict, to wit:

questioned transaction was "now out of the lock and key and presumptively Article 2176. Whoever by act or omission causes damage to another,
ready for a business transaction."[11]

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

Solidbank did not have any participation in the custody and care of the

between the parties, is called a quasi-delict and is governed by the

passbook. The trial court believed that Solidbank's act of allowing the

provisions of this chapter.

withdrawal of P300,000 was not the direct and proximate cause of the loss.

The appellate court held that the three elements of a quasi-delict are

The trial court held that L.C. Diaz's negligence caused the unauthorized

present in this case, namely: (a) damages suffered by the plaintiff; (b) fault

withdrawal. Three facts establish L.C. Diaz's negligence: (1) the

or negligence of the defendant, or some other person for whose acts he

possession of the passbook by a person other than the depositor L.C.

must respond; and (c) the connection of cause and effect between the fault

Diaz; (2) the presentation of a signed withdrawal receipt by an

or negligence of the defendant and the damage incurred by the plaintiff.

73 | P a g e

Torts 5

negligence. Since Solidbank was guilty of simple negligence only, the

The Court of Appeals pointed out that the teller of Solidbank who received

award of exemplary damages was not justified. Consequently, the award of

the withdrawal slip for P300,000 allowed the withdrawal without making the

attorney's fees was also disallowed pursuant to Article 2208 of the Civil

necessary inquiry. The appellate court stated that the teller, who was not

Code. The expenses of litigation and cost of suit were also not imposed on

presented by Solidbank during trial, should have called up the depositor

Solidbank.

because the money to be withdrawn was a significant amount. Had the

teller called up L.C. Diaz, Solidbank would have known that the withdrawal

The dispositive portion of the Resolution reads as follows:

was unauthorized. The teller did not even verify the identity of the impostor

WHEREFORE, foregoing considered, our decision dated October 27, 1998

who made the withdrawal. Thus, the appellate court found Solidbank liable

is affirmed with modification by deleting the award of exemplary damages

for its negligence in the selection and supervision of its employees.

and attorney's fees, expenses of litigation and cost of suit.

The appellate court ruled that while L.C. Diaz was also negligent in

SO ORDERED.[15]

entrusting its deposits to its messenger and its messenger in leaving the

Hence, this petition.

passbook with the teller, Solidbank could not escape liability because of
The Issues

the doctrine of "last clear chance." Solidbank could have averted the injury
suffered by L.C. Diaz had it called up L.C. Diaz to verify the withdrawal.

Solidbank seeks the review of the decision and resolution of the Court of
The appellate court ruled that the degree of diligence required from

Appeals on these grounds:

Solidbank is more than that of a good father of a family. The business and
functions of banks are affected with public interest. Banks are obligated to

I.

THE COURT OF APPEALS ERRED IN HOLDING

treat the accounts of their depositors with meticulous care, always having

THAT PETITIONER BANK SHOULD SUFFER THE

in mind the fiduciary nature of their relationship with their clients. The Court

LOSS BECAUSE ITS TELLER SHOULD HAVE

of Appeals found Solidbank remiss in its duty, violating its fiduciary

FIRST CALLED PRIVATE RESPONDENT BY

relationship with L.C. Diaz.

TELEPHONE BEFORE IT ALLOWED THE

WITHDRAWAL OF P300,000.00 TO

The dispositive portion of the decision of the Court of Appeals reads:

RESPONDENT'S MESSENGER EMERANO ILAGAN,

WHEREFORE, premises considered, the decision appealed from is hereby

SINCE THERE IS NO AGREEMENT BETWEEN THE

REVERSED and a new one entered.

PARTIES IN THE OPERATION OF THE SAVINGS

ACCOUNT, NOR IS THERE ANY BANKING LAW,

1.

Ordering defendant-appellee Consolidated Bank and

WHICH MANDATES THAT A BANK TELLER

Trust Corporation to pay plaintiff-appellant the sum of

SHOULD FIRST CALL UP THE DEPOSITOR

Three Hundred Thousand Pesos (P300,000.00), with

BEFORE ALLOWING A WITHDRAWAL OF A BIG

interest thereon at the rate of 12% per annum from

AMOUNT IN A SAVINGS ACCOUNT.

the date of filing of the complaint until paid, the sum of

P20,000.00 as exemplary damages, and P20,000.00

II.

THE COURT OF APPEALS ERRED IN APPLYING

as attorney's fees and expenses of litigation as well as

THE DOCTRINE OF LAST CLEAR CHANCE AND IN

the cost of suit; and

HOLDING THAT PETITIONER BANK'S TELLER HAD

THE LAST OPPORTUNITY TO WITHHOLD THE

2.

Ordering the dismissal of defendant-appellee's

WITHDRAWAL WHEN IT IS UNDISPUTED THAT

counterclaim in the amount of P30,000.00 as

THE TWO SIGNATURES OF RESPONDENT ON

attorney's fees.

THE WITHDRAWAL SLIP ARE GENUINE AND

PRIVATE RESPONDENT'S PASSBOOK WAS DULY

[13]

SO ORDERED.

PRESENTED, AND CONTRARIWISE RESPONDENT

Acting on the motion for reconsideration of Solidbank, the appellate court

WAS NEGLIGENT IN THE SELECTION AND

affirmed its decision but modified the award of damages. The appellate

SUPERVISION OF ITS MESSENGER EMERANO

court deleted the award of exemplary damages and attorney's fees.

ILAGAN, AND IN THE SAFEKEEPING OF ITS

Invoking Article 2231

[14]

of the Civil Code, the appellate court ruled that

CHECKS AND OTHER FINANCIAL DOCUMENTS.

exemplary damages could be granted if the defendant acted with gross

74 | P a g e

Torts 5

III.

IV.

THE COURT OF APPEALS ERRED IN NOT

performance."[19] This new provision in the general banking law, introduced

FINDING THAT THE INSTANT CASE IS A LAST

in 2000, is a statutory affirmation of Supreme Court decisions, starting with

DITCH EFFORT OF PRIVATE RESPONDENT TO

the 1990 case of Simex International v. Court of Appeals,[20] holding that

RECOVER ITS P300,000.00 AFTER FAILING IN ITS

"the bank is under obligation to treat the accounts of its depositors with

EFFORTS TO RECOVER THE SAME FROM ITS

meticulous care, always having in mind the fiduciary nature of their

EMPLOYEE EMERANO ILAGAN.

relationship."[21]

THE COURT OF APPEALS ERRED IN NOT

This fiduciary relationship means that the bank's obligation to observe

MITIGATING THE DAMAGES AWARDED AGAINST

"high standards of integrity and performance" is deemed written into every

PETITIONER UNDER ARTICLE 2197 OF THE CIVIL

deposit agreement between a bank and its depositor. The fiduciary nature

CODE, NOTWITHSTANDING ITS FINDING THAT

of banking requires banks to assume a degree of diligence higher than that

PETITIONER BANK'S NEGLIGENCE WAS ONLY

of a good father of a family. Article 1172 of the Civil Code states that the

[16]

CONTRIBUTORY.

degree of diligence required of an obligor is that prescribed by law or

contract, and absent such stipulation then the diligence of a good father of

The Ruling of the Court

a family.[22] Section 2 of RA 8791 prescribes the statutory diligence

required from banks - that banks must observe "high standards of integrity

The petition is partly meritorious.

and performance" in servicing their depositors. Although RA 8791 took

effect almost nine years after the unauthorized withdrawal of the P300,000

Solidbank's Fiduciary Duty under the Law

from L.C. Diaz's savings account, jurisprudence[23] at the time of the

withdrawal already imposed on banks the same high standard of diligence

The rulings of the trial court and the Court of Appeals conflict on the

required under RA No. 8791.

application of the law. The trial court pinned the liability on L.C. Diaz based
on the provisions of the rules on savings account, a recognition of the

However, the fiduciary nature of a bank-depositor relationship does not

contractual relationship between Solidbank and L.C. Diaz, the latter being

convert the contract between the bank and its depositors from a simple

a depositor of the former. On the other hand, the Court of Appeals applied

loan to a trust agreement, whether express or implied. Failure by the bank

the law on quasi-delict to determine who between the two parties was

to pay the depositor is failure to pay a simple loan, and not a breach of

ultimately negligent. The law on quasi-delict or culpa aquiliana is generally

trust.[24] The law simply imposes on the bank a higher standard of integrity

applicable when there is no pre-existing contractual relationship between

and performance in complying with its obligations under the contract of

the parties.

simple loan, beyond those required of non-bank debtors under a similar

contract of simple loan.

We hold that Solidbank is liable for breach of contract due to negligence, or

culpa contractual.

The fiduciary nature of banking does not convert a simple loan into a trust
agreement because banks do not accept deposits to enrich depositors but

The contract between the bank and its depositor is governed by the

to earn money for themselves. The law allows banks to offer the lowest

provisions of the Civil Code on simple loan.[17] Article 1980 of the Civil

possible interest rate to depositors while charging the highest possible

Code expressly provides that "x x x savings x x x deposits of money in

interest rate on their own borrowers. The interest spread or differential

banks and similar institutions shall be governed by the provisions

belongs to the bank and not to the depositors who are not cestui que trust

concerning simple loan." There is a debtor-creditor relationship between

of banks. If depositors are cestui que trust of banks, then the interest

the bank and its depositor. The bank is the debtor and the depositor is the

spread or income belongs to the depositors, a situation that Congress

creditor. The depositor lends the bank money and the bank agrees to pay

certainly did not intend in enacting Section 2 of RA 8791.

the depositor on demand. The savings deposit agreement between the

bank and the depositor is the contract that determines the rights and

Solidbank's Breach of its Contractual Obligation

obligations of the parties.

Article 1172 of the Civil Code provides that "responsibility arising from
The law imposes on banks high standards in view of the fiduciary nature of

negligence in the performance of every kind of obligation is demandable."

banking. Section 2 of Republic Act No. 8791 ("RA 8791"),[18] which took

For breach of the savings deposit agreement due to negligence, or culpa

effect on 13 June 2000, declares that the State recognizes the "fiduciary

contractual, the bank is liable to its depositor.

nature of banking that requires high standards of integrity and

75 | P a g e

Torts 5

Calapre left the passbook with Solidbank because the "transaction took

The bank must not only exercise "high standards of integrity and

time" and he had to go to Allied Bank for another transaction. The

performance," it must also insure that its employees do likewise because

passbook was still in the hands of the employees of Solidbank for the

this is the only way to insure that the bank will comply with its fiduciary

processing of the deposit when Calapre left Solidbank. Solidbank's rules

duty. Solidbank failed to present the teller who had the duty to return to

on savings account require that the "deposit book should be carefully

Calapre the passbook, and thus failed to prove that this teller exercised the

guarded by the depositor and kept under lock and key, if possible." When

"high standards of integrity and performance" required of Solidbank's

the passbook is in the possession of Solidbank's tellers during withdrawals,

employees.

the law imposes on Solidbank and its tellers an even higher degree of
diligence in safeguarding the passbook.

Proximate Cause of the Unauthorized Withdrawal

Likewise, Solidbank's tellers must exercise a high degree of diligence in

Another point of disagreement between the trial and appellate courts is the

insuring that they return the passbook only to the depositor or his

proximate cause of the unauthorized withdrawal. The trial court believed

authorized representative. The tellers know, or should know, that the rules

that L.C. Diaz's negligence in not securing its passbook under lock and key

on savings account provide that any person in possession of the passbook

was the proximate cause that allowed the impostor to withdraw the

is presumptively its owner. If the tellers give the passbook to the wrong

P300,000. For the appellate court, the proximate cause was the teller's

person, they would be clothing that person presumptive ownership of the

negligence in processing the withdrawal without first verifying with L.C.

passbook, facilitating unauthorized withdrawals by that person. For failing

Diaz. We do not agree with either court.

to return the passbook to Calapre, the authorized representative of L.C.

Diaz, Solidbank and Teller No. 6 presumptively failed to observe such high

Proximate cause is that cause which, in natural and continuous sequence,

degree of diligence in safeguarding the passbook, and in insuring its return

unbroken by any efficient intervening cause, produces the injury and

to the party authorized to receive the same.

without which the result would not have occurred.[26] Proximate cause is
determined by the facts of each case upon mixed considerations of logic,

In culpa contractual, once the plaintiff proves a breach of contract, there is

common sense, policy and precedent.[27]

a presumption that the defendant was at fault or negligent. The burden is

on the defendant to prove that he was not at fault or negligent. In contrast,

L.C. Diaz was not at fault that the passbook landed in the hands of the

in culpa aquiliana the plaintiff has the burden of proving that the defendant

impostor. Solidbank was in possession of the passbook while it was

was negligent. In the present case, L.C. Diaz has established that

processing the deposit. After completion of the transaction, Solidbank had

Solidbank breached its contractual obligation to return the passbook only to the contractual obligation to return the passbook only to Calapre, the
the authorized representative of L.C. Diaz. There is thus a presumption

authorized representative of L.C. Diaz. Solidbank failed to fulfill its

that Solidbank was at fault and its teller was negligent in not returning the

contractual obligation because it gave the passbook to another person.

passbook to Calapre. The burden was on Solidbank to prove that there

was no negligence on its part or its employees.

Solidbank's failure to return the passbook to Calapre made possible the

withdrawal of the P300,000 by the impostor who took possession of the

Solidbank failed to discharge its burden. Solidbank did not present to the

passbook. Under Solidbank's rules on savings account, mere possession

trial court Teller No. 6, the teller with whom Calapre left the passbook and

of the passbook raises the presumption of ownership. It was the negligent

who was supposed to return the passbook to him. The record does not

act of Solidbank's Teller No. 6 that gave the impostor presumptive

indicate that Teller No. 6 verified the identity of the person who retrieved

ownership of the passbook. Had the passbook not fallen into the hands of

the passbook. Solidbank also failed to adduce in evidence its standard

the impostor, the loss of P300,000 would not have happened. Thus, the

procedure in verifying the identity of the person retrieving the passbook, if

proximate cause of the unauthorized withdrawal was Solidbank's

there is such a procedure, and that Teller No. 6 implemented this

negligence in not returning the passbook to Calapre.

procedure in the present case.

We do not subscribe to the appellate court's theory that the proximate
Solidbank is bound by the negligence of its employees under the principle

cause of the unauthorized withdrawal was the teller's failure to call up L.C.

of respondeat superior or command responsibility. The defense of

Diaz to verify the withdrawal. Solidbank did not have the duty to call up

exercising the required diligence in the selection and supervision of

L.C. Diaz to confirm the withdrawal. There is no arrangement between

employees is not a complete defense in culpa contractual, unlike in culpa

Solidbank and L.C. Diaz to this effect. Even the agreement between

aquiliana.[25]

Solidbank and L.C. Diaz pertaining to measures that the parties must
observe whenever withdrawals of large amounts are made does not direct
76 | P a g e

Torts 5

Solidbank to call up L.C. Diaz.

The doctrine of last clear chance states that where both parties are
There is no law mandating banks to call up their clients whenever their

negligent but the negligent act of one is appreciably later than that of the

representatives withdraw significant amounts from their accounts. L.C.

other, or where it is impossible to determine whose fault or negligence

Diaz therefore had the burden to prove that it is the usual practice of

caused the loss, the one who had the last clear opportunity to avoid the

Solidbank to call up its clients to verify a withdrawal of a large amount of

loss but failed to do so, is chargeable with the loss.[29] Stated differently, the

money. L.C. Diaz failed to do so.

antecedent negligence of the plaintiff does not preclude him from

recovering damages caused by the supervening negligence of the

Teller No. 5 who processed the withdrawal could not have been put on

defendant, who had the last fair chance to prevent the impending harm by

guard to verify the withdrawal. Prior to the withdrawal of P300,000, the

the exercise of due diligence.[30]

impostor deposited with Teller No. 6 the P90,000 PBC check, which later
bounced. The impostor apparently deposited a large amount of money to

We do not apply the doctrine of last clear chance to the present case.

deflect suspicion from the withdrawal of a much bigger amount of money.

Solidbank is liable for breach of contract due to negligence in the

The appellate court thus erred when it imposed on Solidbank the duty to

performance of its contractual obligation to L.C. Diaz. This is a case of

call up L.C. Diaz to confirm the withdrawal when no law requires this from

culpa contractual, where neither the contributory negligence of the plaintiff

banks and when the teller had no reason to be suspicious of the

nor his last clear chance to avoid the loss, would exonerate the defendant

transaction.

from liability.[31] Such contributory negligence or last clear chance by the

plaintiff merely serves to reduce the recovery of damages by the plaintiff

Solidbank continues to foist the defense that Ilagan made the withdrawal.

but does not exculpate the defendant from his breach of contract. [32]

Solidbank claims that since Ilagan was also a messenger of L.C. Diaz, he
was familiar with its teller so that there was no more need for the teller to

Mitigated Damages

verify the withdrawal. Solidbank relies on the following statements in the

Booking and Information Sheet of Emerano Ilagan:

Under Article 1172, "liability (for culpa contractual) may be regulated by the

xxx Ilagan also had with him (before the withdrawal) a forged check of PBC courts, according to the circumstances." This means that if the defendant
and indicated the amount of P90,000 which he deposited in favor of L.C.

exercised the proper diligence in the selection and supervision of its

Diaz and Company. After successfully withdrawing this large sum of

employee, or if the plaintiff was guilty of contributory negligence, then the

money, accused Ilagan gave alias Rey (Noel Tamayo) his share of the

courts may reduce the award of damages. In this case, L.C. Diaz was

loot. Ilagan then hired a taxicab in the amount of P1,000 to transport him

guilty of contributory negligence in allowing a withdrawal slip signed by its

(Ilagan) to his home province at Bauan, Batangas. Ilagan extravagantly

authorized signatories to fall into the hands of an impostor. Thus, the

and lavishly spent his money but a big part of his loot was wasted in

liability of Solidbank should be reduced.

cockfight and horse racing. Ilagan was apprehended and meekly admitted
his guilt.[28] (Emphasis supplied.)

In Philippine Bank of Commerce v. Court of Appeals,[33] where the

L.C. Diaz refutes Solidbank's contention by pointing out that the person

Court held the depositor guilty of contributory negligence, we allocated the

who withdrew the P300,000 was a certain Noel Tamayo. Both the trial and

damages between the depositor and the bank on a 40-60 ratio. Applying

appellate courts stated that this Noel Tamayo presented the passbook with

the same ruling to this case, we hold that L.C. Diaz must shoulder 40% of

the withdrawal slip.

the actual damages awarded by the appellate court. Solidbank must pay
the other 60% of the actual damages.

We uphold the finding of the trial and appellate courts that a certain Noel
Tamayo withdrew the P300,000. The Court is not a trier of facts. We find

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with

no justifiable reason to reverse the factual finding of the trial court and the

MODIFICATION. Petitioner Solidbank Corporation shall pay private

Court of Appeals. The tellers who processed the deposit of the P90,000

respondent L.C. Diaz and Company, CPA's only 60% of the actual

check and the withdrawal of the P300,000 were not presented during trial

damages awarded by the Court of Appeals. The remaining 40% of the

to substantiate Solidbank's claim that Ilagan deposited the check and

actual damages shall be borne by private respondent L.C. Diaz and

made the questioned withdrawal. Moreover, the entry quoted by Solidbank

Company, CPA's. Proportionate costs. SO ORDERED.

does not categorically state that Ilagan presented the withdrawal slip and
the passbook.

Doctrine of Last Clear Chance

77 | P a g e

Torts 5

EMMA ADRIANO BUSTAMANTE, IN HER OWN BEHALF AS

GUARDIAN-AD-LITEM OF MINORS: ROSSEL, GLORIA, YOLANDA,

"4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion
Himaya; and

ERICSON AND EDERIC, ALL SURNAMED BUSTAMANTE, SPOUSES

SALVADOR JOCSON AND ATRIA BONE-JOCSON, SPOUSES JOSE
RAMOS AND ENRIQUETA CEBU-RAMOS, SPOUSES NARCISO

"5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma.
Commemoracion Bersamina. (Rollo, p. 48)

HIMAYA AND ADORACION MARQUEZ-HIMAYA, AND SPOUSES JOSE During the incident, the cargo truck was driven by defendant Montesiano
BERSAMINA AND MA. COMMEMORACION PEREA-BUSTAMANTE,
PETITIONER, VS. THE HONORABLE COURT OF APPEALS,
FEDERICO DEL PILAR AND EDILBERTO MONTESIANO,
RESPONDENTS.

and owned by defendant Del Pilar; while the passenger bus was driven by
defendant Susulin. The vehicle was registered in the name of defendant
Novelo but was owned and/or operated as a passenger bus jointly by
defendants Magtibay and Serrado, under a franchise, with a line from Naic,
Cavite, to Baclaran, Paraaque, Metro Manila, and vice-versa, which

DECISION

Novelo sold to Magtibay on November 8, 1981, and which the latter

transferred to Serrado (Cerrado) on January 18, 1983.

MEDIALDEA, J.:
Immediately before the collision, the cargo truck and the passenger bus
This is a petition for review on certiorari seeking the reversal of the

were approaching each other, coming from the opposite directions of the

decision of the respondent Court of Appeals dated February 15, 1989

highway. While the truck was still about 30 meters away, Susulin the bus

which reversed and set aside the decision of the Regional Trial Court of

driver, saw the front wheels of the vehicle wiggling. He also observed that

Cavite, Branch XV ordering the defendants to pay jointly and severally the

the truck was heading towards his lane. Not minding this circumstance

plaintiffs indemnity for death and damages; and in further dismissing the

due to his belief that the driver of the truck was merely joking. Susulin

complaint insofar as defendants-appellants Federico del Pilar and Edilberto shifted from fourth to third gear in order to give more power and speed to
Montesiano are concerned; and its resolution dated August 17, 1989

the bus, which was ascending the inclined part of the road, in order to

denying the motion for reconsideration for lack of merit.

overtake or pass a Kubota hand tractor being pushed by a person along

the shoulder of the highway. While the bus was in the process of

The facts giving rise to the controversy at bar are recounted by the trial

overtaking or passing the hand tractor and the truck was approaching the

court as follows:

bus, the two vehicles sideswiped each other at each other's left side. After

"At about 6:30 in the morning of April 20, 1983, a collision occurred

the impact, the truck skidded towards the other side of the road and landed

between a gravel and sand truck, with Plate No. DAP 717, and a Mazda

on a nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp.

passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the

48-50)

national road at Calibuyo, Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck sideswiped the left side wall of the

After a careful perusal of the circumstances of the case, the trial court

passenger bus, ripping off the said wall from the driver's seat to the last

reached the conclusion "that the negligent acts of both drivers contributed

rear seat.

to or combined with each other in directly causing the accident which led to
the death of the aforementioned persons. It could not be determined from

"Due to the impact, several passengers of the bus were thrown out and

the evidence that it was only the negligent act of one of them which was

died as a result of the injuries they sustained. Among those killed were the

the proximate cause of the collision. In view of thus, the liability of the two

following:

drivers for their negligence must be solidary. (Rollo, pp. 50-51)

Accordingly, the trial court rendered a decision on March 7, 1986, the

"1. Rogelio Bustamante, 40; husband of plaintiff Emma Adriano

dispositive portion is hereunder quoted as follows:

Bustamante and father of plaintiffs Rossel, Gloria, Yolanda, Ericson, and

"WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado,

Ederic, all surnamed Bustamante;

Ricardo Susulin, Efren Novelo, Federico del Pilar and Edilberto Montesiano
are hereby ordered to pay jointly and severally to the plaintiffs, as follows:

"2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and
Patria Jocson;

"1. To plaintiffs Emma Adriano Bustamante and her minor children, the
sum of P30,000.00 as indemnity for the death of Rogelio Bustamante; U.S.

"3. Jolet Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta

$127,680.00 as indemnity for the loss of the earning capacity of the said

Ramos;

deceased, at its prevailing rate in pesos at the time this decision shall have
become final and executory; P10,000.00 as moral damages; and
78 | P a g e

Torts 5

P5,000.00 as exemplary damages;

"First. Whether the respondent Court can legally and validly absolve
defendants-appellants from liability despite its own finding, as well as that

"2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as

of the trial court that defendant-appellant Edilberto Montesiano, the cargo

indemnity for the death of their daughter, Maria Corazon Jocson;

truck driver, was driving an old vehicle very fast, with its wheels already

P10,000.00 as moral damages; and P5,000.00 as exemplary damages;

wiggling, such that he had no more control of his truck.

"3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as

"Second. Whether the respondent court can validly and legally disregard

indemnity for the death of their daughter, Jolet Ramos; P10,000.00 as

the findings of fact made by the trial court which was in a better position to

moral damages; and P5,000.00 as exemplary damages; and

observe the conduct and demeanor of the witnesses, particularly appellant

Edilberto Montesiano, cargo truck driver, and which conclusively found

"4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00

appellant Montesiano as jointly and severally negligent in driving his truck

as indemnity for the death of their son, Enrico Himaya; P10,000.00 as

very fast and had lost control of his truck.

moral damages; and P5,000.00 as exemplary damages; and

"Third. Whether the respondent court has properly and legally applied the
"5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of

doctrine of last clear chance in the present case despite its own finding

P30,000.00 as indemnity for the death of their son; Noel Bersamina,

that appellant cargo truck driver Edilberto Montesiano was admittedly

P10,000.00 as moral damages; and P5,000.00 as exemplary damages.

negligent in driving his cargo truck very fast on a descending road and in
the presence of the bus driver coming from the opposite direction.

"The defendants are also required to pay the plaintiffs the sum of
P10,000.00 as attorney's fees and to pay the costs of the suit.

"Fourth. Whether the respondent court has applied the correct law and the
correct doctrine so as to reverse and set aside the judgment with respect to

"The cross-claim of defendant Novelo hereby allowed, and defendants

defendants-appellants." (Rollo, pp. 133-134)

Magtibay and Serrado, the actual owners and/or operators of the

As a rule, findings of fact of the Court of Appeals are final and conclusive

passenger bus concerned, are hereby ordered to indemnify Novelo in such

and cannot be reviewed on appeal, provided, they are borne out by the

amount as he may be required to pay as damages to the plaintiffs.

record or are based on substantial evidence. However, this rule admits of

certain exceptions, as when the findings of facts are conclusions without

"The cross-claims and counter-claims of the other defendants are hereby

citation of specific evidence on which they are based; or the appellate

dismissed for lack of merit.

courts findings are contrary to those of the trial court. (Sese v.

Intermediate Appellate Court, G.R. 66168, 31 July 1987, 152 SCRA 585).

"SO ORDERED." (pp. 55-57, Rollo)

From said decision, only defendants Federico del Pilar and Edilberto

Furthermore, only questions of law may be raised in a petition for review on

Montesiano, owner and driver, respectively, of the sand and gravel truck

certiorari under Rule 45 of the Revised Rules of Court. The jurisdiction of

have interposed an appeal before the respondent Court of Appeals. The

the Supreme Court in cases brought to it from the Court of Appeals is

Court of Appeals decided the appeal on a different light. It rendered

limited to reviewing and revising the errors of law imputed to it, its findings

judgment on February 15, 1989, to wit:

of fact being conclusive. It is not the function of the Supreme Court to

"WHEREFORE, the appealed judgment is hereby REVERSED and SET

analyze or weigh such evidence all over again, its jurisdiction being limited

ASIDE and the complaint dismissed insofar as defendants-appellants

to reviewing errors of law that might have been committed. Barring,

Federico del Pilar and Edilberto Montesiano are concerned. No costs in

therefore, a showing that the findings complained of are totally devoid of

this instance.

support in the records, or that they are so glaringly erroneous as to

constitute serious abuse of discretion, such findings must stand for the

"SO ORDERED." (p. 96, Rollo)

Supreme Court is not expected or required to examine or contrast the oral

On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration and documentary evidence submitted by the parties. (Andres v.
of the aforementioned Court of Appeals decision. However, respondent

Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989,

Court of Appeals in a resolution dated August 17, 1989 denied the motion

177 SCRA 618).

for lack of merit. Hence, this petition.

Bearing in mind these basic principles, We have opted to re-examine the
Petitioners raised the following questions of law, namely:

findings of fact mainly because the appellate court's findings are contrary
to those of the trial court.
79 | P a g e

Torts 5

question, having heard the witnesses themselves and observed their

The trial court, in declaring that the negligent acts of both drivers directly

deportment.

caused the accident which led to the death of the aforementioned persons,
considered the following:

The respondent court adopted the doctrine of "last clear chance." The

"It was negligent on the part of driver Montesiano to have driven his truck

doctrine, stated broadly, is that the negligence of the plaintiff does not

fast, considering that it was an old vehicle, being a 1947 model as admitted preclude a recovery for the negligence of the defendant where it appears
by its owner, defendant Del Pilar; that its front wheels were wiggling; that

that the defendant, by exercising reasonable care and prudence, might

the road was descending; and that there was a passenger bus

have avoided injurious consequences to the plaintiff notwithstanding the

approaching it. Likewise, driver Susulin was also guilty of negligence in not plaintiff's negligence. In other words, the doctrine of last clear chance
taking the necessary precaution to avoid the collision, in the light of his

means that even though a person's own acts may have placed him in a

admission that, at a distance of 30 meters, he already saw the front wheels

position of peril, and an injury results, the injured person is entitled to

of the truck wiggling and that the vehicle was usurping his lane coming

recovery. As the doctrine is usually stated, a person who has the last clear

towards his direction. Had he exercised ordinary prudence, he could have

chance or opportunity of avoiding an accident, notwithstanding the

stopped his bus or swerved it to the side of the road even down to its

negligent acts of his opponent or that of a third person imputed to the

shoulder. And yet, Susulin shifted to third gear so as to, as claimed by

opponent is considered in law solely responsible for the consequences of

him, give more power and speed to his bus in overtaking or passing a hand the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
tractor which was being pushed along the shoulder of the road." (Rollo, p.
50)

The practical import of the doctrine is that a negligent defendant held liable

The respondent Court of Appeals ruling on the contrary, opined that "the

to a negligent plaintiff, or even to a plaintiff who has been grossly negligent

bus driver had the last clear chance to avoid the collision and his reckless

in placing himself in peril, if he, aware of the plaintiff's peril, or according to

negligence in proceeding to overtake the hand tractor was the proximate

some authorities, should have been aware of it in the reasonable exercise

cause of the collision." (Rollo, p. 95). Said court also noted that "the record of due case, had in fact an opportunity later than that of the plaintiff to
also discloses that the bus driver was not a competent and responsible

avoid an accident (57 Am. Jur., 2d, pp. 798-799).

driver. His driver's license was confiscated for a traffic violation on April
17, 1983 and he was using a ticket for said traffic violation on the day of

In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate

the accident in question (pp. 16-18, TSN, July 23, 1984). He also admitted

Appellate Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the Court

that he was not a regular driver of the bus that figured in the mishap and

citing the landmark decision held in the case of Anuran, et al. v. Buno, et

was not given any practical examination. (pp. 11, 96, TSN, supra). (Rollo,

al. (123 Phil. 1073) ruled that the principle of last clear chance" applies "in

p. 96)

a suit between the owners and drivers of colliding vehicles. It does not
arise where a passenger demands responsibility from the carrier to enforce

The respondent Court quoting People v. Vender, CA?G.R. 11114-41-CR,

its contractual obligations. For it would he inequitable to exempt the

August 28, 1975 held that "We are not prepared to uphold the trial court's

negligent driver of the jeepney and its owners on the ground that the other

finding that the truck was running fast before the impact. The national

driver was likewise guilty of negligence."

road, from its direction, was descending. Courts can take judicial notice of
the fact that a motor vehicle going down or descending is more liable to get

Furthermore, "as between defendants: The doctrine cannot be extended

out of control than one that is going up or ascending for the simple reason

into the field of joint tortfeasors as a test of whether only one of them

that the one which is going down gains added momentum while that which

should be held liable to the injured person by reason of his discovery of the

is going up loses its initial speeding in so doing."

latter's peril, and it cannot be invoked as between defendants concurrently

negligent. As against third persons, a negligent actor cannot defend by

On the other hand, the trial court found and We are convinced that the

pleading that another had negligently failed to take action which could have

cargo truck was running fast. It did not overlook the fact that the road was

avoided the injury." (57 Am. Jur, 2d, pp. 806-807).

descending as in fact it mentioned this circumstance as one of the factors

disregarded by the cargo truck driver along with the fact that he was driving All premises considered, the Court is convinced that the respondent Court
an old 1947 cargo truck whose front wheels are already wiggling and the

committed an error of law in applying the doctrine of last clear chance as

fact that there is a passenger bus approaching it. In holding that the driver

between the defendants, since the case at bar is not a suit between the

of the cargo truck was negligent, the trial court certainly took into account

owners and drivers of the colliding vehicles but a suit brought by the heirs

all these factors so it was incorrect for the respondent court to disturb the

of the deceased passengers against both owners and drivers of the

factual findings of the trial court, which is in a better position to decide the

colliding vehicles. Therefore, the respondent court erred in absolving the

80 | P a g e

Torts 5

owner and driver of the cargo truck from liability.

Pursuant to the new policy of this Court to grant an increased death

indemnity to the heirs of the deceased, their respective awards of
P30,000.00 are hereby increased to P50,000.00.

ACCORDINGLY, the petition is GRANTED; the appealed judgment and

resolution of the Court of Appeals are hereby REVERSED and SET ASIDE
and the judgment of the lower court is REINSTATED with the modification
on the indemnity for death of each of the victims which is hereby increased
to P50,000.00 each. No pronouncement as to costs.

SO ORDERED.

81 | P a g e

Torts 5

PANTRANCO NORTH EXPRESS, INC., PETITIONER, VS. MARICAR

BASCOS BAESA, THRU HER PERSONAL GUARDIAN FRANCISCA O.
BASCOS, FE O. ICO, IN HER BEHALF AND IN BEHALF OF HER
MINOR CHILDREN, NAMELY ERWIN, OLIVE, EDMUNDO AND
SHARON ICO, RESPONDENTS.

DECISION

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for
herself and for her minor children, filed separate actions for damages
arising from quasi-delict against PANTRANCO, respectively docketed as
Civil Case No. 561-R and 589-R of the Court of First Instance of
Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Ico's
alleged negligence as the proximate cause of the accident, invoked the

CORTES, J.:

defense of due diligence in the selection and supervision of its driver,

Ambrosio Ramirez.

In this Petition, Pantranco North Express Inc. (PANTRANCO) asks the

Court to review the decision of the Court of Appeals in CA-G.R. CV No.

On July 3, 1984, the CFI of Pangasinan rendered a decision against

05494-95 which affirmed the decisions of the then Court of First Instance of PANTRANCO awarding the total amount of Two Million Three Hundred
Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R

Four Thousand Six Hundred Forty-Seven Pesos (P2,304,647.00) as

wherein PANTRANCO was ordered to pay damages and attorney's fees to

damages, plus 10% thereof as attorney's fees and costs to Maricar Baesa

herein private respondents.

in Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two
Thousand Six Hundred Seventy-Two Pesos (P652,672.00) as damages,

The pertinent facts are as follows:

plus 10% thereof as attorneys fees and costs to Fe Ico and her children in
Civil Case No. 589-R. On appeal, the cases were consolidated and the

At about 7:00 o'clock in the morning of June 12, 1981, the spouses Ceasar

Court of Appeals modified the decision of the trial court by ordering

and Marilyn Baesa and their children Harold Jim, Marcelino and Maricar,

PANTRANCO to pay the total amount of One Million One Hundred Eighty-

together with spouses David Ico and Fe O. Ico with their son Erwin Ico and

Nine Thousand Nine Hundred Twenty-Seven Pesos (P1,189,927.00) as

seven other persons, were aboard a passenger jeepney on their way to a

damages, plus Twenty Thousand Pesos (P20,000.00) as attorney's fees to

picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding

Maricar Baesa, and the total amount of Three Hundred Forty-Four

anniversary of Ceasar and Marilyn Baesa.

Thousand Pesos (P344,000.00) plus Ten Thousand Pesos (P10,000.00)

as attorney's fees to Fe Ico and her children, and to pay the costs in both

The group, numbering fifteen (15) persons, rode in the passenger jeepney

cases. The dispositive portion of the assailed decision reads as follows:

driven by David Ico, who was also the registered owner thereof. From
Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some

WHEREFORE, the decision appealed from is hereby modified by ordering

viands to one Mrs. Bascos and thenceforth to San Felipe, taking the

the defendant PANTRANCO North Express, Inc. to pay:

highway going to Malalam River. Upon reaching the highway, the jeepney
turned right and proceeded to Malalam River at a speed of about 20 kph.

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the
following damages:

While they were proceeding towards Malalam River, a speeding

PANTRANCO bus from Aparri, on its regular route to Manila, encroached

A)

on the jeepney's lane while negotiating a curve, and collided wit it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn

As compensatory damages for the death of

Ceasar Baesa - P30,000.00;

B)

Baesa and their children, Harold Jim and Marcelino Baesa, died while the

As compensatory damages for the death of

Marilyn Baesa - P30,000.00;

rest of the passengers suffered injuries. The jeepney was extensively

damaged. After the accident the driver of the PANTRANCO Bus,

C)

Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela.

As compensatory damages for the death of

Harold Jim Baesa and Marcelino Baesa -

From that time on up to the present, Ramirez has never been seen and

P30,000.00;

has apparently remained in hiding.

D)
All the victims and/or their surviving heirs except herein private

For the loss of earnings of Ceasar Baesa P630,000.00;

respondents settled the case amicably under the "No Fault" insurance
coverage of PANTRANCO.

E)

For the loss of earnings of Marilyn Bascos

Baesa - P375,000.00;
82 | P a g e

Torts 5

F)

G)

For the burial expenses of the deceased

prudence, might have avoided injurious consequences to claimant

Ceasar and Marilyn Baesa - P 41,200.00

notwithstanding his negligence.

For hospitalization expenses of Maricar Baesa

The doctrine applies only in a situation where the plaintiff was guilty of prior

- P3,727.00

or antecedent negligence but the defendant, who had the last fair chance
to avoid the impending harm and failed to do so, is made liable for all the

H)

As moral damages - P50,000.00;

I)

As attorney's fees - P20,000.00.

consequences of the accident notwithstanding the prior negligence of the

plaintiff [Picart v. Smith, 37 Phil 809 (1918); Glan People's Lumber and
Hardware, et al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, et al., G.R. No. 70493, May 18, 1989.] The subsequent negligence

II. The plaintiffs in Civil Case No. 589-R, the following damages:

of the defendant in failing to exercise ordinary care to avoid injury to

A)

As compensatory damages for the death of David Ico - P30,000.00;

plaintiff becomes the immediate or proximate cause of the accident which

B)

For loss of earning capacity of David Ico - P252,000.00

C)

As moral damages for the death of David Ico and the injury of Fe Ico -

intervenes between the accident and the more remote negligence of the
plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith,
supra.]

P30,000.00;
D)

As payment for the jeepney - P20,000.00;

E)

For the hospitalization of Fe Ico - P12,000.00;

F)

And for attorney's fees - P10,000.00;

Generally, the last clear chance doctrine is invoked for the purpose of
making a defendant liable to a plaintiff who was guilty of prior or
antecedent negligence, although it may also be raised as a defense to
defeat claim for damages.

and to pay the costs in both cases.

To avoid liability for the negligence of its driver, petitioner claims that the
The amount of P25,000.00 paid to Maricar Bascos Baesa, plaintiff in Civil
Case No. 561-R, and the medical expenses in the sum of P3,273.55,
should be deducted from the award in her favor.

original negligence of its driver was not the proximate cause of the accident
and that the sole proximate cause was the supervening negligence of the
jeepney driver David Ico in failing to avoid the accident. It is petitioner's

All the foregoing amounts herein awarded except the costs shall earn

position that even assuming arguendo, that the bus encroached into the

interest at the legal rate from date of this decision until fully paid. [CA

lane of the jeepney, the driver of the latter could have swerved the jeepney

Decision, pp. 14-15; Rollo, pp. 57-58.]

towards the spacious dirt shoulder on his right without danger to himself or
his passengers.

PANTRANCO filed a motion for reconsideration of the Court of Appeal's

decision, but on June 26, 1987, it denied the same for lack of merit.

The above contention of petitioner is manifestly devoid of merit.

PANTRANCO then filed the instant petition for review.

Contrary to the petitioner's contention, the doctrine of "last clear chance"
I

finds no application in this case. For the doctrine to be applicable, it is

necessary to show that the person who allegedly had the last opportunity

Petitioner faults the Court of Appeals for not applying the doctrine of the

to avert the accident was aware of the existence of the peril or should, with

"last clear chance" against the jeepney driver. Petitioner claims that under

exercise of due care, have been aware of it. One cannot be expected to

the circumstances of the case, it was the driver of the passenger jeepney

avoid an accident or injury if he does not know or could not have known the

who had the last clear chance to avoid the collision and was therefore

existence of the peril. In this case, there is nothing to show that the

negligent in failing to utilize with reasonable care and competence his then

jeepney driver David Ico knew of the impending danger. When he saw at a

existing opportunity to avoid the harm.

distance that the approaching bus was encroaching on his lane, he did not
immediately swerve the jeepney to the dirt shoulder on his right since he

The doctrine of the last clear chance was defined by this Court in the case

must have assumed that the bus driver will return the bus to its own lane

of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:

upon seeing the jeepney approaching from the opposite direction. As held
by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810,

The doctrine of the last clear chance simply means that the negligence of a

August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on

claimant does not preclude a recovery for the negligence of defendant

his own side of the highway is generally entitled to assume that an

where it appears that the latter, by exercising reasonable care and

approaching vehicle coming towards him on the wrong side, will return to
83 | P a g e

Torts 5

his proper lane of traffic. There was nothing to indicate to David Ico that

jeepney coming from the opposite direction was the sole and proximate

the bus could not return to its own lane or was prevented from returning to

cause of the accident without which the collision would not have occurred.

the proper lane by anything beyond the control of its driver. Leo Marantan,

There was no supervening or intervening negligence on the part of the

an alternate driver of the Pantranco bus who was seated beside the driver

jeepney driver which would have made the prior negligence of petitioner's

Ramirez at the time of the accident, testified that Ramirez had no choice

driver a mere remote cause of the accident.

but to swerve the steering wheel to the left and encroach on the jeepney's
lane because there was a steep precipice on the right [CA Decision, p. 2;

II

Rollo, p. 45.] However, this is belied by the evidence on record which

clearly shows that there was enough space to swerve the bus back to its

On the issue of its liability as an employer, petitioner claims that it had

own lane without any danger [CA Decision, p. 7; Rollo, p. 50.]

observed the diligence of a good father of a family to prevent damage,

conformably to the last paragraph of Article 2180 of the Civil Code.

Moreover, both the trial court and the Court of Appeals found that at the

Petitioner adduced evidence to show that in hiring its drivers, the latter are

time of the accident the Pantranco bus was speeding towards Manila [CA

required to have professional driver's license and police clearance. The

Decision, p. 2; Rollo, p. 45.] By the time David Ico must have realized that

drivers must also pass written examinations, interviews and practical

the bus was not returning to its own lane, it was already too late to swerve

driving tests, and are required to undergo a six-month training period.

the jeepney to his right to prevent an accident. The speed at which the

Rodrigo San Pedro, petitioner's Training Coordinator, testified on

approaching bus was running prevented David Ico from swerving the

petitioner's policy of conducting regular and continuing training programs

jeepney to the right shoulder of the road in time to avoid the collision.

and safety seminars for its drivers, conductors, inspectors and supervisors

Thus, even assuming that the jeepney driver perceived the danger a few

at a frequency rate of at least two (2) seminars a month.

seconds before the actual collision, he had no opportunity to avoid it. This
Court has held that the last clear chance doctrine "can never apply where

On this point, the Court quotes with approval the following findings of the

the party charged is required to act instantaneously, and if the injury cannot trial court which was adopted by the Court of Appeals in its challenged
be avoided by the application of all means at hand after the peril is or

decision:

should have been discovered" [Ong v. Metropolitan Water District, supra.]

When an injury is caused by the negligence of an employee, there instantly
Petitioner likewise insists that David Ico was negligent in failing to observe

arises a presumption that the employer has been negligent either in the

Section 43 (c), Article III Chapter IV of Republic Act No. 4136* which

selection of his employees or in the supervision over their acts. Although

provides that the driver of a vehicle entering a through highway or a stop

this presumption is only a disputable presumption which could be

intersection shall yield the right of way to all vehicles approaching in either

overcome by proof of diligence of a good father of a family, this Court

direction on such through highway.

believes that the evidence submitted by the defendant to show that it

exercised the diligence of a good father of a family in the case of Ramirez,

Petitioner's misplaced reliance on the aforesaid law is readily apparent in

as a company driver is far from sufficient. No support evidence has been

this case. The cited law itself provides that it applies only to vehicles

adduced. The professional driver's license of Ramirez has not been

entering a through highway or a stop intersection. At the time of the

produced. There is no proof that he is between 25 to 38 years old. There

accident, the jeepney had already crossed the intersection and was on its

is also no proof as to his educational attainment, his age, his weight and

way to Malalam River. Petitioner itself cited Fe Ico's testimony that the

the fact that he is married or not. Neither are the result of the written test,

accident occurred after the jeepney had travelled a distance of about two

psychological and physical test, among other tests, have been submitted in

(2) meters from the point of intersection [Petition p. 10; Rollo, p. 27.] In fact, evidence [sic]. His NBI or police clearances and clearances from previous
even the witness for the petitioner, Leo Marantan, testified that both

employment were not marked in evidence. No evidence was presented

vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p.

that Ramirez actually and really attended the seminars. Vital evidence

50], clearly indicating that the jeepney had already crossed the

should have been the certificate of attendance or certificate of participation

intersection.

or evidence of such participation like a logbook signed by the

trainees when they attended the seminars. If such records are not

Considering the foregoing, the Court finds that the negligence of

available, the testimony of the classmates that Ramirez was their

petitioner's driver in encroaching into the lane of the incoming jeepney and

classmate in said seminar (should have been presented) [CA Decision, pp.

in failing to return the bus to its own lane immediately upon seeing the

8-9; Rollo, pp. 51-52.]

84 | P a g e

Torts 5

Petitioner contends that the fact that Ambrosio Ramirez was employed and

deceased victims. While it is true that private respondents should have

remained as its driver only means that he underwent the same rigid

presented documentary evidence to support their claim for damages for

selection process and was subjected to the same strict supervision

loss of earning capacity of the deceased victims, the absence thereof does

imposed by petitioner on all applicants and employees. It is argued by the

not necessarily bar the recovery of the damages in question. The

petitioner that unless proven otherwise, it is presumed that petitioner

testimony of Fe Ico and Francisca Bascos as to the earning capacity of

observed its usual recruitment procedure and company policies on safety

David Ico and the spouses Baesa, respectively, are sufficient to establish a

and efficiency [Petition, p. 20; Rollo, p. 37.]

basis from which the court can make a fair and reasonable estimate of the
damages for the loss of earning capacity of the three deceased victims.

The Court finds the above contention unmeritorious.

Moreover, in fixing the damages for loss of earning capacity of a deceased

victim, the court can consider the nature of his occupation, his educational

The finding of negligence on the part of its driver Ambrosio Ramirez gave

attainment and the state of his health at the time of death.

rise to the presumption of negligence on the part of petitioner and the

burden of proving that it exercised due diligence not only in the selection of

In the instant case, David Ico was thirty eight (38) years old at the time of

its employees but also in adequately supervising their work rests with the

his death in 1981 and was driving his own passenger jeepney. The

petitioner (Lilius v. Manila Railroad Company, 59 Phil. 758 (1934), Umali v.

spouses Ceasar and Marilyn Baesa were both thirty (30) years old at the

Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623.] Contrary to

time of their death. Ceasar Baesa was a commerce degree holder and the

petitioner's claim, there is no presumption that the usual recruitment

proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper

procedures and safety standards were observed. The mere issuance of

and the Valley Times at Cauayan, Isabela. Marilyn Baesa graduated as a

rules and regulations and the formulation of various company policies on

nurse in 1976 and at the time of her death, was the company nurse,

safety, without showing that they are being complied with, are not sufficient

personnel manager, treasurer and cashier of the Ilagan Press at Ilagan,

to exempt petitioner from liability arising from the negligence of its

Isabela. Respondent court duly considered these factors, together with the

employee. It is incumbent upon petitioner to show that in recruiting and

uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the

employing the erring driver, the recruitment procedures and company

amount of damages for the loss of earning capacity of David Ico and the

policies on efficiency and safety were followed. Petitioner failed to do this.

spouses Baesa.

Hence, the Court finds no cogent reason to disturb the finding of both the
trial court and the Court of Appeals that the evidence presented by the

However, it should be pointed out that the Court of Appeals committed

petitioner, which consists mainly of the uncorroborated testimony of its

error in fixing the compensatory damages for the death of Harold Jim

Training Coordinator, is insufficient to overcome the presumption of

Baesa and Marcelino Baesa. Respondent court awarded to plaintiff

negligence against petitioner.

(private respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00)

as "compensatory damages for the death of Harold Jim Baesa and

III

Marcelino Baesa." [CA Decision, p.14; Rollo, 57.] In other words, the Court
of Appeals awarded only Fifteen Thousand Pesos (P15,000.00) as

On the question of damages, petitioner claims that the Court of Appeals

indemnity for the death of Harold Jim Baesa and another Fifteen Thousand

erred in fixing the damages for the loss of earning capacity of the deceased Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly
victims. Petitioner assails respondent court's findings because no

erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52,

documentary evidence in support thereof, such as income tax returns, pay-

December 29, 1983, 126 SCRA 518, the indemnity for the death of a

rolls, pay slips or invoices obtained in the usual course of business, were

person was fixed by this Court at Thirty Thousand Pesos (P30,000.00).

presented [Petition, p. 22; Rollo, p. 39.] Petitioner argues that the "bare

Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos

and self?serving testimonies of the wife of the deceased David Ico and the

(P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa

mother of the deceased Marilyn Baesa ... have no probative value to

and Marcelino Baesa or Thirty Thousand Pesos (P30,000.00) for the death

sustain in law the Court of Appeals' conclusion on the respective earnings

of each brother.

of the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is

petitioner's contention that the evidence presented by the private

The other items of damages awarded by respondent court which were not

respondent does not meet the requirements of clear and satisfactory

challenged by the petitioner are hereby affirmed.

evidence to prove actual and compensatory damages.

WHEREFORE, premises considered, the petition is DENIED, and the
The Court finds that the Court of Appeals committed no reversible error in

decision of respondent Court of Appeals is hereby AFFIRMED with the

fixing the amount of damages for the loss of earning capacity of the

modification that the amount of compensatory damages for the death of

85 | P a g e

Torts 5

Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand
Pesos (P30,000.00) each.

SO ORDERED.

86 | P a g e

Torts 5

ROGELIO ENGADA, PETITIONER, VS. HON. COURT OF APPEALS,

FORMER FOURTEENTH DIVISION, MANILA, AND PEOPLE OF THE
PHILIPPINES, RESPONDENTS.

DECISION

Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw

jeepney ended up in the junk heap. Its total loss was computed at P80,000.

A criminal complaint for damage to property through reckless imprudence

with serious physical injuries was filed with the Municipal Trial Court of

QUISUMBING, J.:

Barotac Nuevo against petitioner Rogelio Engada and Edwin Iran.[5]

Probable cause was found against petitioner, while the complaint against

This petition for review seeks the reversal of the decision[1] dated May 31,

Iran was dismissed.[6]

1999 of the Court of Appeals in CA-G.R. CR No. 18358, which affirmed

with modification the judgment[2] dated August 25, 1994, of the Regional

Consequently, an Information was filed against petitioner charging him with

Trial Court of Iloilo City, Branch 29, in Criminal Case No. 36223. The RTC

serious physical injuries and damage to property through reckless

found petitioner guilty beyond reasonable doubt of simple imprudence

imprudence, thus:

resulting in physical injuries and damage to property, and sentenced him to

That on or about November 29, 1989, in the Municipality of Barotac Nuevo,

(a) suffer imprisonment for one month and one day of arresto mayor, (b)

Province of Iloilo, Philippines, and within the jurisdiction of this Honorable

pay private complainant, Mrs. Sheila Seyan, the amount of fifty one

Court, the above-named accused Rogelio Engada driving an Isuzu Pick-up

thousand pesos (P51,000) for the total destruction of the Toyota Tamaraw

with Plate No. SAR 117 owned by the Land Bank of the Philippines, did

jeepney, and one hundred ten thousand pesos (P110,000) for her hospital

then and there wilfully, unlawfully and with reckless imprudence drive said

and medical expenses, and (c) pay the costs of suit. The CA increased the

pick-up in a careless, reckless and imprudent manner with disregard of

prison term imposed on petitioner to four months of arresto mayor.

traffic laws and regulations, and as a result of such negligent and reckless
driving the Isuzu Pick-up driven by the accused bumped a Toyota

The facts culled from the records are as follows:

Tamaraw jeep with Plate No. FBF 601 owned by Joelito and Sheila Seyan
and driven by Edwin Iran thereby causing damage to the Toyota Tamaraw

On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was

in the amount of P80,000.00 and serious physical injuries to Mrs. Sheila

driving a blue Toyota Tamaraw jeepney bound for Iloilo City. On board

Seyan who was riding said vehicle, the injuries barring complications will

was Sheila Seyan, the registered owner of the Tamaraw. While traversing

heal in more than 30 days.

the road along Barangay Acquit, Barotac Nuevo, the Tamaraw passengers
allegedly saw from the opposite direction a speeding Isuzu pick-up, driven

CONTRARY TO LAW.[7]

by petitioner Rogelio Engada. The pick-up had just negotiated a hilly

After trial, the court rendered on August 25, 1994 a decision, disposing as

gradient on the highway. When it was just a few meters away from the

follows:

Tamaraw, the Isuzu pick-up's right signal light flashed, at the same time, it

WHEREFORE, the Court, finding the accused guilty beyond reasonable

swerved to its left, encroaching upon the lane of the Tamaraw and headed

doubt of Simple Imprudence resulting [in] physical injuries and damage to

towards a head-on collision course with it. Seyan shouted at Iran to avoid

property defined and penalized in Article 263, paragraph 4 and in relation

the pick-up. Iran swerved to his left but the pick-up also swerved to its right. with Article 365, paragraph 2 of the Revised Penal Code, hereby
Thus, the pick-up collided with the Tamaraw, hitting the latter at its right

sentences the accused Rogelio Engada to suffer imprisonment of ONE (1)

front passenger side. The impact caused the head and chassis of the

MONTH and ONE (1) DAY of arresto mayor.

Tamaraw to separate from its body. Seyan was thrown out of the
Tamaraw and landed on a ricefield. The pick-up stopped diagonally astride

Accused is further ordered to pay complainant Mrs. Sheila Seyan the

the center of the road.

amount of P51,000.00 for the total destruction of the Toyota Tamaraw

Jeepney and P110,000.00 for indemnification of hospital and medical

Seyan and Iran were brought to Barotac Nuevo Medicare Hospital. [3] Seyan expenses, and to pay the cost of the suit.
was profusely bleeding from her nose and was in a state of shock with her
eyes closed. In the afternoon of the same day, November 29, 1989, she

SO ORDERED.[8]

was transferred to St. Paul's Hospital in Iloilo City where she was confined.

Petitioner appealed to the Court of Appeals. On May 31, 1999, the CA

Her medical certificate revealed that she suffered a fracture on the right

dismissed the appeal and affirmed with modification the trial court's

femur, lacerated wound on the right foot, multiple contusions, abrasions,

decision, thus:

blunt abdominal injury, and lacerations of the upper-lower pole of the right

WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the

kidney.

[4]

She was discharged from the hospital only on January 15, 1990.

appealed decision is hereby AFFIRMED with modification as to the penalty

87 | P a g e

Torts 5

imposed upon the accused who is hereby sentenced to suffer

based largely upon impulse or instinct. Thus, he cannot be held to the

imprisonment of FOUR (4) MONTHS of arresto mayor.

same standard of conduct as one who had an opportunity to reflect, even

though it later appears that he made the wrong decision. Clearly, under the

[9]

SO ORDERED.

emergency rule petitioner cannot shift the blame to Iran, concludes the

Petitioner filed a motion for reconsideration, but it was denied. Hence, the

OSG.

instant petition, wherein petitioner raises the issue of:

WHETHER OR NOT THE FINDINGS OF RESPONDENT COURT OF

As to petitioner's claim that there was no evidence showing that the pick-up

APPEALS ARE SUPPORTED BY THE EVIDENCE OR BASED ON A

was running very fast, the OSG avers that this is rebutted by the testimony

MISAPPREHENSION OF FACTS RESULTING IN A MANIFESTLY

of Seyan and Iran who both testified that petitioner drove the pick-up at a

MISTAKEN INFERENCE SPECIFICALLY ON WHAT WAS THE

fast speed when it encroached on their lane immediately before the

PROXIMATE CAUSE OF THE ACCIDENT AND WHOSE ACT WAS IT.[10]

collision.

Petitioner claims innocence and seeks acquittal. He contends that in this

case we should relax the rule that only legal questions can be raised in a

Did the Court of Appeals err in finding that the action of petitioner, Rogelio

petition for review under Rule 45 of the Rules of Court. According to him,

Engada, was the proximate cause of the collision? This is the crux of the

the Court of Appeals misapprehended the facts, and erred in its conclusion

present petition.

as to the proximate cause of the collision. He insists that the Court of

Appeals erred when it found him negligent for occupying the lane of the

In our view, petitioner's attempt to pin the blame on Edwin Iran, the driver

Tamaraw jeepney, and then failing to return to his original lane at the

of the Tamaraw, for the vehicular collision is unfounded. Iran swerved to

safest and earliest opportunity.

the left only to avoid petitioner's pick-up, which was already on a head to
head position going against Iran's Tamaraw jeepney immediately before

Petitioner further contends that the CA failed to consider that he already

the vehicles collided. This fact has been established by the evidence on

relayed his intention to go back to his lane by flashing the pick-up's right

record. No convincing proof was adduced by petitioner that the driver of the

signal light. He submits that at that moment Iran, the driver of the

Tamaraw, Iran, could have avoided a head-on collision.

Tamaraw, had no more reason to swerve to his left. Had Iran not swerved
to the left, according to petitioner, the collision would have been avoided. It

We note that petitioner admitted his Isuzu pick-up intruded into the lane of

was Iran who was clearly negligent, says petitioner. Citing our ruling in

the Tamaraw jeepney. Prosecution witness Nelson Alobin, one of those

McKee v. Intermediate Appellate Court,[11] petitioner avers that although his who went to the scene of the incident immediately, testified that when he
act of occupying the Tamaraw's lane was the initial act in the chain of

arrived at the place where the collision took place, he saw the pick-up

events, Iran's swerving to the left after petitioner flashed his right turn

positioned diagonally at the center of the road.[12] Its head was towards the

signal, constituted a sufficient intervening event, which proximately caused

direction of Barotac Nuevo and the rear tires were just a few inches beyond

the eventual injuries and damages to private complainant.

the center of the lane.[13] Moving backwards facing Barotac Nuevo, at two
arms length away from the pick-up, Alobin also saw a tire mark, 12 inches

Petitioner also claims that the Court of Appeals erred when it found that the long and located at the left side of the center line going to the right side. [14]
pick-up approached the Tamaraw at a fast speed. He maintains that this
was not borne by the evidence on record.

The above circumstance corroborates the testimony of both Seyan and

Iran that, immediately before the collision, the pick-up was not on its proper

The Office of the Solicitor General, as counsel for the state, counters that

lane but on the other lane (the left lane rather than the right) directly on

the Court of Appeals did not err in convicting the accused, now petitioner

collision course with the Tamaraw jeepney. The tire mark reveals the short

herein. Petitioner's negligence was the proximate cause of the accident,

distance between the two vehicles when the Isuzu pick-up attempted to

according to the OSG, for the following reasons: First, petitioner for no

return to its proper lane.

justifiable reason occupied the opposite lane. Second, while on the wrong
lane, petitioner was driving the Isuzu pick-up fast, and he returned to his

It is a settled rule that a driver abandoning his proper lane for the purpose

own lane only at the last minute. This left Iran, the driver of the Tamaraw,

of overtaking another vehicle in an ordinary situation has the duty to see to

with no opportunity to reflect on the safest way to avoid the accident. Iran's

it that the road is clear and he should not proceed if he cannot do so in

swerving to the left was his reaction to petitioner's wrongful act, which

safety.[15] This rule is consistent with Section 41, paragraph (a) of R.A.

appropriately calls for the application of the emergency rule. The rationale

4136 as amended, otherwise known as The Land Transportation and

of this rule is that a person who is confronted with a sudden emergency

Traffic Code, which provides:

might have no time for thought, and he must make a prompt decision
88 | P a g e

Torts 5

Sec. 41. Restrictions on overtaking and passing. (a) The driver of a

approached the Tamaraw, denied Iran time and opportunity to ponder the

vehicle shall not drive to the left side of the center line of a highway in

situation at all. There was no clear chance to speak of. Accordingly, the

overtaking or passing another vehicle proceeding in the same direction,

Court of Appeals did not err in holding petitioner responsible for the

unless such left side is clearly visible and is free of oncoming traffic for a

vehicular collision and the resulting damages, including the injuries

sufficient distance ahead to permit such overtaking or passing to be made

suffered by Mrs. Sheila Seyan and the total loss of the Tamaraw jeepney.

in safety.

It also did not err in imposing on petitioner the sentence of four (4) months

In the present case, there was only a distance of 30 meters from the

of arresto mayor.[20]

Tamaraw jeepney when the Isuzu pick-up abandoned its lane and swerved
to the left of the center line.[16] In addition, petitioner was running at a fast

WHEREFORE, the instant petition is DENIED for lack of merit. The

clip while traversing this lane. This was testified to by Seyan and Iran,

assailed decision of the Court of Appeals in CA-G.R. CR No. 18358 is

unrebutted by petitioner. The resulting damage to the Tamaraw jeepney,

AFFIRMED. Costs against petitioner.

at the point where the head and chassis were separated from the body,
bolsters this conclusion that petitioner was speeding. In our view, petitioner

SO ORDERED.

was negligent in several ways, and his negligence was the proximate
cause of the collision. In abandoning his lane, he did not see to it first that
the opposite lane was free of oncoming traffic and was available for a safe
passage. Further, after seeing the Tamaraw jeepney ahead, petitioner did
not slow down, contrary to the rule set in Batangas Laguna Tayabas Bus
Co. v. IAC,[17] thus:
...[O]r if, after attempting to pass, the driver of the overtaking vehicle finds
that he cannot make the passage in safety, the latter must slacken his
speed so as to avoid the danger of a collision, even bringing his car to a
stop if necessary.
For failing to observe the duty of diligence and care imposed on drivers of
vehicles abandoning their lane, petitioner must be held liable.

Iran could not be faulted when in his attempt to avoid the pick-up, he
swerved to his left. Petitioner's acts had put Iran in an emergency situation
which forced him to act quickly. 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.[18]

Petitioner tries to extricate himself from liability by invoking the doctrine of

last clear chance. He avers that between him and Iran, the latter had the
last clear chance to avoid the collision, hence Iran must be held liable.

The doctrine of last clear chance states that a person who has the last
clear chance or opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent, is considered in law solely responsible for
the consequences of the accident.[19] But as already stated on this point, no
convincing evidence was adduced by petitioner to support his invocation of
the abovecited doctrine. Instead, what has been shown is the presence of
an emergency and the proper application of the emergency rule.
Petitioner's act of swerving to the Tamaraw's lane at a distance of 30
meters from it and driving the Isuzu pick-up at a fast speed as it
89 | P a g e

Torts 5

RESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON.

of Wendell Libi, then a minor between 18 and 19 years of age living with
INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and SHIRLEY his aforesaid parents, and who also died in the same event on the same
GOTIONG, Respondents.
date.
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.

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. R17774 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

DECISION

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;

"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.

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

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
90 | P a g e

Torts 5

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?

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).

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

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

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

A It is about 8 feet.

WITNESS:chanrob1es virtual 1aw library

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)

"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

"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

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
91 | P a g e

Torts 5

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

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

"Based on the foregoing discussions of the assigned errors, this Court

holds that the lower court was not correct in dismissing herein plaintiffsappellants 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
". . . It is still the duty of parents to know the activity of their children who
previous decisions of this court on the matter which warrant comparative
may be engaged in this dangerous activity involving the menace of drugs.
analyses. Our concern stems from our readings that if the liability of the
Had the defendants-appellees been diligent in supervising the activities of
parents for crimes or quasi-delicts of their minor children is subsidiary, then
their son, Wendell, and in keeping said gun from his reach, they could have the parents can neither invoke nor be absolved of civil liability on the
prevented Wendell from killing Julie Ann Gotiong. Therefore, appellants are defense that they acted with the diligence of a good father of a family to
liable under Article 2180 of the Civil Code which provides:chanrob1es
prevent damages. On the other hand, if such liability imputed to the parents
virtual 1aw library
is considered direct and primary, that diligence would constitute a valid and
substantial defense.
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
We believe that the civil liability of parents for quasi-delicts of their minor
their company.
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
"Having been grossly negligent in preventing Wendell Libi from having
for solidary liability of joint tortfeasors, the persons responsible for the act
access to said gun which was allegedly kept in a safety deposit box,
or omission, in this case the minor and the father and, in case of his death
defendants-appellees are subsidiarily liable for the natural consequence of of incapacity, the mother, are solidarily liable. Accordingly, such parental
the criminal act of said minor who was living in their company. This
liability is primary and not subsidiary, hence the last paragraph of Article
vicarious liability of herein defendants-appellees has been reiterated by the 2180 provides that" (t)he responsibility treated of in this article shall cease
Supreme Court in many cases, prominent of which is the case of Fuellas v. when the persons herein mentioned prove that they observed all the
Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held
diligence of a good father of a family to prevent damages."cralaw virtua1aw
that:chanrob1es virtual 1aw library
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.

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

The subsidiary liability of parents arising from the criminal acts of their
minor children who acted with discernment is determined under the

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

92 | P a g e

Torts 5

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.

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
In Exconde, where the 15-year old minor was convicted of double homicide responsibility of the parents and those who exercise parental authority over
through reckless imprudence, in a separate civil action arising from the
the minor offender. 33 For civil liability arising from quasi-delicts committed
crime the minor and his father were held jointly and severally liable for
by minors, the same rules shall apply in accordance with Articles 2180 and
failure of the latter to prove the diligence of a good father of a family. The
2182 of the Civil Code, as so modified.
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
In the case at bar, whether the death of the hapless Julie Ann Gotiong was
who was found guilty of frustrated homicide, but on the authority of Article
caused by a felony or a quasi-delict committed by Wendell Libi, respondent
2194 of the Civil Code providing for solidary responsibility of two or more
court did not err in holding petitioners liable for damages arising therefrom.
persons who are liable for a quasi-delict.
Subject to the preceding modifications of the premises relied upon by it
therefor and on the bases of the legal imperatives herein explained, we
However, in Salen, the father was declared subsidiarily liable for damages conjoin in its findings that said petitioners failed to duly exercise the
arising from the conviction of his son, who was over 15 but less than 18
requisite diligentissimi patris familias to prevent such damages.
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
ACCORDINGLY, the instant Petition is DENIED and the assailed judgment
petitioners herein were also held liable but supposedly in line with Fuellas
of respondent Court of Appeals is hereby AFFIRMED, with costs against
which purportedly declared the parents subsidiarily liable for the civil
petitioners.
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
SO ORDERED.
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
93 | P a g e

Torts 5

MACARIO TAMARGO, CELSO TAMARGO AND AURELIA TAMARGO,

PETITIONERS, VS. THE HON. COURT OF APPEALS; THE HON.
ARISTON L. RUBIO, RTC JUDGE, BRANCH 20, VIGAN, ILOCOS SUR;
VICTOR BUNDOC; AND CLARA BUNDOC, RESPONDENTS.

motion for reconsideration on 15 January 1988. It appearing, however, that

the motions failed to comply with Sections 4 and 5 of Rule 15 of the
Revised Rules of Court -- that notice of the motion shall be given to all
parties concerned at least three (3) days before the hearing of said motion;
and that said notice shall state the time and place of hearing -- both

DECISION

motions were denied by the trial court in an Order dated 18 April 1988. On
28 April 1988, petitioners filed a notice of appeal. In its Order dated 6 June

FELICIANO, J.:

1988, the trial court dismissed the notice of appeal, this time ruling that the
notice had been filed beyond the 15-day reglementary period ending 22

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age,

December 1987.

shot Jennifer Tamargo with an air rifle causing injuries which resulted in
her death. Accordingly, a civil complaint for damages was filed with the

Petitioners went to the Court of Appeals on a petition for mandamus and

Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case

certiorari questioning the trial court's Decision dated 3 December 1987 and

No. 3457-V, by petitioner Macario Tamargo, Jennifers adopting parent,

the Orders dated 18 April 1988 and 6 June 1988. The Court of Appeals

and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural

dismissed the petition, ruling that petitioners had lost their right to appeal.

parents, against respondent spouses Victor and Clara Bundoc, Adelberto's

natural parents with whom he was living at the time of the tragic incident. In In the present Petition for Review, petitioners once again contend that
addition to this case for damages, a criminal information for Homicide

respondent spouses Bundoc are the indispensable parties to the action for

through Reckless Imprudence was filed [Criminal Case No. 1722-V]

damages caused by the acts of their minor child, Adelberto Bundoc.

against Adelberto Bundoc. Adelberto, however, was acquitted and

Resolution of this Petition hinges on the following issues: (1) whether or not

exempted from criminal liability on the ground that he had acted without

petitioners, notwithstanding loss of their right to appeal, may still file the

discernment.

instant Petition; conversely, whether the Court may still take cognizance of
the case even though petitioners' appeal had been filed out of time; and (2)

Prior to the incident, or on 10 December 1981, the spouses Sabas and

whether or not the effects of adoption, insofar as parental authority is

Felisa Rapisura had filed a petition to adopt the minor Adelberto Bundoc in

concerned, may be given retroactive effect so as to make the adopting

Special Proceedings No. 0373-T before the then Court of First Instance of

parents the indispensable parties in a damage case filed against their

Ilocos Sur. This petition for adoption was granted on 18 November 1982,

adopted child, for acts committed by the latter when actual custody was yet

that is, after Adelberto had shot and killed Jennifer.

lodged with the biological parents.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents,

1. It will be recalled that petitioners' motion (and supplemental motion) for

reciting the result of the foregoing petition for adoption, claimed that not

reconsideration filed before the trial court, not having complied with the

they, but rather the adopting parents, namely the spouses Sabas and

requirements of Section 13, Rule 41, and Section 4, Rule 15, of the

Felisa Rapisura, were indispensable parties to the action since parental

Revised Rules of Court, were considered pro forma and hence did not

authority had shifted to the adopting parents from the moment the

interrupt and suspend the reglementary period to appeal: the trial court

successful petition for adoption was filed.

held that the motions, not having contained a notice of time and place of
hearing, had become useless pieces of paper which did not interrupt the

Petitioners in their Reply contended that since Adelberto Bundoc was then

reglementary period.[1] As in fact repeatedly held by this Court, what is

actually living with his natural parents, parental authority had not ceased

mandatory is the service of the motion on the opposing counsel indicating

nor been relinquished by the mere filing and granting of a petition for

the time and place of hearing.[2]

adoption.
In view, however, of the nature of the issue raised in the instant Petition,
The trial court on 3 December 1987 dismissed petitioners' complaint, ruling

and in order that substantial justice may be served, the Court, invoking its

that respondent natural parents of Adelberto indeed were not

right to suspend the application of technical rules to prevent manifest

indispensable parties to the action.

injustice, elects to treat the notice of appeal as having been seasonably

filed before the trial court, and the motion (and supplemental motion) for

Petitioners received a copy of the trial court's Decision on 7 December

reconsideration filed by petitioner in the trial court as having interrupted the

1987. Within the 15-day reglementary period, or on 14 December 1987,

reglementary period for appeal. As the Court held in Gregorio v. Court of

petitioners filed a motion for reconsideration followed by a supplemental

Appeals:[3]
94 | P a g e

Torts 5

Dismissal of appeal purely on technical grounds is frowned upon where

the contrary, for reasons of public policy, to extend that liability, without

the policy of the courts is to encourage hearings of appeal on their merits.

regard to the lack of moral culpability, so as to include responsibility for the

The rules of procedure ought not be applied in a very rigid technical sense,

negligence of those persons whose acts or omissions are imputable, by a

rules of procedure are used only to help secure not override, substantial

legal fiction, to others who are in a position to exercise an absolute or

justice. If a technical and rigid enforcement of the rules is made, their aim

limited control over them. The legislature which adopted our Civil Code has

would be defeated.

[4]

elected to limit extra-contractual liability -- with certain well-defined

exceptions -- to cases in which moral culpability can be directly imputed to

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting

the persons to be charged. This moral responsibility may consist in having

Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-

failed to exercise due care in one's own acts, or in having failed to exercise

delict against him. As Article 2176 of the Civil Code provides:

due care in the selection and control of one's agents or servants, or in the
control of persons who, by reasons of their status, occupy a position of

Whoever by act or omission causes damage to another, there being fault

dependency with respect to the person made liable for their conduct.[7]

or negligence, is obliged to pay for the damage done. Such fault or

(Underscoring supplied)

negligence, if there is no pre-existing contractual relation between the

parties, is called a quasi-delict x x x.

The civil liability imposed upon parents for the torts of their minor children
living with them, may be seen to be based upon the parental authority

Upon the other hand, the law imposes civil liability upon the father and, in

vested by the Civil Code upon such parents. The civil law assumes that

case of his death or incapacity, the mother, for any damages that may be

when an unemancipated child living with its parents commits a tortious act,

caused by a minor child who lives with them. Article 2180 of the Civil Code

the parents were negligent in the performance of their legal and natural

reads:

duty closely to supervise the child who is in their custody and control.
Parental liability is, in other words, anchored upon parental authority

The obligation imposed by article 2176 is demandable not only for one's

coupled with presumed parental dereliction in the discharge of the duties

own acts or omissions, but also for those of persons for whom one is

accompanying such authority. The parental dereliction is, of course, only

responsible.

presumed and the presumption can be overturned under Article 2180 of

The father and, in case of his death or incapacity, the mother, are

the Civil Code by proof that the parents had exercised all the diligence of a

responsible for the damages caused by the minor children who live in their

good father of a family to prevent the damage.

company.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle
xxx xxx

xxx

occured when parental authority was still lodged in respondent Bundoc

The responsibility treated of in this Article shall cease when the person

spouses, the natural parents of the minor Adelberto. It would thus follow

herein mentioned prove that they observed all the diligence of a good

that the natural parents who had then actual custody of the minor

father of a family to prevent damage. (Underscoring supplied)

Adelberto, are the indispensable parties to the suit for damages.

This principle of parental liability is a species of what is frequently

The natural parents of Adelberto, however, stoutly maintain that because a

designated as vicarious liability, or the doctrine of imputed negligence

decree of adoption was issued by the adoption court in favor of the

under Anglo-American tort law, where a person is not only liable for torts

Rapisura spouses, parental authority was vested in the latter as adopting

committed by himself, but also for torts committed by others with whom he

parents as of the time of the filing of the petition for adoption that is, before

has a certain relationship and for whom he is responsible. Thus, parental

Adelberto had shot Jennifer with ad air rifle. The Bundoc spouses contend

liability is made a natural or logical consequence of the duties and

that they were therefore free of any parental responsibility for Adelberto's

responsibilities of parents - their parental authority - which includes the

allegedly tortious conduct.

[5]

instructing, controlling and disciplining of the child. The basis for the
doctrine of vicarious liability was explained by the Court in Cangco v.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth

Manila Railroad Co.[6] in the following terms:

Welfare Code[8] which reads as follows:

With respect to extra-contractual obligation arising from negligence,

Article 36. Decree of Adoption. -- If, after considering the report of the

whether of act or omission, it is competent for the legislature to elect -- and

Department of Social Welfare or duly licensed child placement agency and

our Legislature has so elected -- to limit such liability to cases in which the

the evidence submitted before it, the court is satisfied that the petitioner is

person upon whom such an obligation is imposed is morally culpable or, on qualified to maintain, care for, and educate the child, that the trial custody
95 | P a g e

Torts 5

period has been completed, and that the best interests of the child will be

petition for adoption where such is essential to permit the accrual of some

promoted by the adoption, a decree of adoption shall be entered, which

benefit or advantage in favor of the adopted child. In the instant case,

shall be effective as of the date the original petition was filed. The decree

however, to hold that parental authority had been retroactively lodged in

shall state the name by which the child is thenceforth to be known.

the Rapisura spouses so as to burden them with liability for a tortious act

(Underscoring supplied)

that they could not have forseen and which they could not have prevented
(since they were at the time in the United States and had no physical

The Bundoc spouses further argue that the above Article 36 should be

custody over the child Adelberto) would be unfair and unconscionable.

read in relation to Article 39 of the same Code:

Such a result, moreover, would be inconsistent with the philosophical and

policy basis underlying the doctrine of vicarious liability. Put a little

Art. 39. Effect of Adoption. --The adoption shall:

differently, no presumption of parental dereliction on the part of the

xxx

adopting parents, the Rapisura spouses, could have arisen since Adelberto

xxx

xxx

was not in fact subject to their control at the time the tort was committed.
(2) Dissolve the authority vested in the natural parents, except where the
adopter is the spouse of the surviving natural parent;
xxx

xxx

x x x"

Article 35 of the Child and Youth Welfare Code fortifies the conclusion
reached above. Article 35 provides as follows:

(Underscoring supplied)
Art. 35. Trial Custody. - No petition for adoption shall be finally granted
and urge that their parental authority must be deemed to have been
dissolved as of the time the petition for adoption was filed.

unless and until the adopting parents are given by the courts a supervised
trial custody period of at least six months to assess their adjustment and
emotional readiness for the legal union. During the period of trial custody,

The Court is not persuaded. As earlier noted, under the Civil Code, the

parental authority shall be vested in the adopting parents. (Underscoring

basis of parental liability for the torts of a minor child is the relationship

supplied)

existing between the parents and the minor child living with them and over
whom, the law presumes, the parents exercise supervision and control.

Under the above Article 35, parental authority is provisionally vested in the

Article 58 of the Child and Youth Welfare Code, re-enacted this rule:

adopting parents during the period of trial custody, i.e., before the issuance
of a decree of adoption, precisely because the adopting parents are given

Article 58 Torts -- Parents and guardians are responsible for the damage

actual custody of the child during such trial period. In the instant case, the

caused by the child under their parental authority in accordance with the

trial custody period either had not yet begun or had already been

Civil Code. (Underscoring supplied)

completed at the time of the air rifle shooting; in any case, actual custody
of Adelberto was then with his natural parents, not the adopting parents.
[9]

Article 221 of the Family Code of the Philippines has similarly insisted
upon the requisite that the child, doer of the tortious act, shall have been in

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's

the actual custody of the parents sought to be held liable for the ensuing

natural parents, were indispensable parties to the suit for damages brought

damage:

by petitioners, and that the dismissal by the trial court of petitioners'

complaint, the indispensable parties being already before the court,

Art. 221. Parents and other persons exercising parental authority shall be

constituted grave abuse of discretion amounting to lack or excess of

civilly liable for the injuries and damages caused by the acts or omissions

jurisdiction.

of their unemancipated children living in their company and under their

parental authority subject to the appropriate defenses provided by law.

WHEREFORE, premises considered, the Petition for Review is hereby

(Underscoring supplied)

GRANTED DUE COURSE and the Decision of the Court of Appeals dated
6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and

We do not believe that parental authority is properly regarded as having

SET ASIDE. Petitioners' complaint filed before the trial court is hereby

been retroactively transferred to and vested in the adopting parents, the

REINSTATED and this case is REMANDED to that court for further

Rapisura spouses, at the time the air rifle shooting happened. We do not

proceedings consistent with this Decision. Costs against respondent

consider that retroactive effect may be given to the decree of adoption so

Bundoc spouses. This Decision is immediately executory.

as to impose a liability upon the adopting parents accruing at a time when

the adopting parents had no actual or physical custody over the adopted

SO ORDERED.

child. Retroactive effect may perhaps be given to the granting of the

96 | P a g e

Torts 5

SPOUSES MOISES P. PALISOC AND BRIGIDA P. PALISOC,

PLAINTIFF-APPELLANT, VS. ANTONIO C. BRILLANTES AND

finally he died. The foregoing is the substance of the testimony of

Desiderio Cruz, the lone witness to the incident."

TEODOSIO V. VALENTON, OWNER AND PRESIDENT,

RESPECTIVELY, OF A SCHOOL OF ARTS AND TRADES, KNOWN

The trial court expressly gave credence to this version of the incident, as

UNDER THE NAME AND STYLE OF MANILA TECHNICAL

testified to by the lone eyewitness, Desiderio Cruz, a classmate of the

INSTITUTE (M.I.T.) VIRGILIO L. DAFFON AND SANTIAGO M.

protagonists, as that of a disinterested witness who "has no motive or

reason to testify one way or another in favor of any party" and rejected the

QUIBULUE, DEFENDANTS-APPELLEES.

self-exculpatory version of defendant Daffon denying that he had inflicted

any fist blows an the deceased.

DECISION

With the postmortem findings of Dr. Angelo Singian of the Manila Police

TEEHANKEE, J.:

Department who performed the autopsy re "Cause of death: shock due to

An appeal in forma pauperis on pure questions of law from a decision of

traumatic fracture of the ribs (6th and 7th, left),[2] contusion of the pancreas

the Court of First Instance of Manila.

and stomach with intra-gastric hemorrhage and slight subarachnoid

hemorrhage on the brain", and his testimony that these internal injuries of

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador

the deceased were caused 'probably by strong fist blows", the trial court

Palisoc, and a student in automotive mechanics at the Manila Technical

found defendant Daffon liable for the quasidelict under Article 2176 of the

Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action

Civil Code.[3] It held that "(T)he act, therefore, of the accused Daffon in

below for damages arising from the death on March 10, 1966 of their son

giving the deceased strong fist blows in the stomach which ruptured his

at the hands of a fellow student, defendant Virgilio L. Daffon, at the

internal organs and caused his death falls within the purview of this article

laboratory room of the said Institute.

of the Code."[4]

Defendants, per the trial court's decision, are: "(T)he defendant Antonio C.

The trial court, however, absolved from liability the three other defendants-

Brillantes, at the time when the incident which gave rise to this action

officials of the Manila Techanical Institute, in this wise:

[1]

occurred was a member of the Board of Directors of the institute: the

defendant Teodosio Valenton, the president thereof; the defendant

"x x x Their liabilities are based on the provisions of Article 2180 of the

Santiago M. Quibulue, instructor of the class to which the deceased

New Civil Code which reads:

belonged; and the defendant Virgilio L. Daffon, a fellow student of the

deceased. At the beginning the Manila Techanical Institute was a single

'Art. 2180. x x x x

proprietorship, but lately on August 2, 1962, it was duly incorporated."

'Lastly, teachers or heads of establishments of arts and trades shall be
The facts that led to the tragic death of plaintiffs' son were thus narrated by

liable for damages caused by their pupils and students and apprentices, so

the trial court: "(T)he deceased Dominador Palisoc and the defendant

long as they remain in their custody.

Virgilio L. Daffon were classmates, and on the afternoon of March 10,

1966, between two and three o'clock, they, together with another

In the opinion of the Court, this article of the Code is not applicable to the

classmate Desiderio Cruz were in the laboratory room located on the

case at bar, since this contemplates the situation where the control or

ground floor. At that time the classes were in recess. Desiderio Cruz and

influence of the teachers and heads of school establishments over the

Virgilio L. Daffon were working on a machine while Dominador Palisoc was

conduct and actions of the pupil supersedes those of the parents.

merely looking on at them. Daffon made a remark to the effect that Palisoc
was acting like a foreman. Because of this remark Palisoc slapped slightly

'CIVIL LAW: DAMAGES. ART. 2180. NEW CIVIL CODE CONSTRUED: -

Daffon on the face. Daffon, in retaliation, gave Palisoc a strong flat blow

The clause 'so long as they remain in their custody' contained in Article

on the face, which was followed by other fist blows on the stomach.

2180 of the new civil code contemplated a situation where the pupil lives

Palisoc retreated apparently to avoid the fist blows, but Daffon followed him and boards with the teacher, such that the control or influence on the pupil
supersedes those of the parents. In those circumstances the control or
and both exchanged blows until Palisoc stumbled on an engine block
which caused him to fall face downward. Palisoc became pale and

influence over the conduct and actions of the pupil as well as the

fainted. First aid was administered to him but he was not revived, so he

responsibilities for their sort would pass from the father and mother to the

was immediately taken to a hospital. He never regained consciousness;

teachers. (Ciriaco L. Mercado, Petitioner, vs. the Court of Appeals, Manuel

Quisumbing, Jr., et al., respondents, G. R. No. L-14862, May 30, 1960).'[5]

97 | P a g e

Torts 5

"There is no evidence that the accused Daffon lived and boarded with his

for the physical injury inflicted by his son on a classmate. [A cut on the

teacher or the other defendant officials of the school. These defendants

right cheek with a piece of razor which cost only P50.00 by way of medical

cannot therefore be made responsible for the tort of the defendant Daffon."

expenses to treat and cure, since the wound left no scar.] The moral
damages award was after all set aside by the Court on the ground that

Judgment was therefore rendered by the trial court as follows:

none of the specific cases provided in Article 2279, Civil Code, for
awarding moral damages had been established, petitioner's son being only

"1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs

nine years old and not having been shown to have "acted with

of the deceased Dominador Palisoc (a) P6,000.00 for the death of

discernment" in inflicting the injuries on his classmate.

Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses;

(c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power, The dictum in Mercado was based in turn on another dictum in the earlier
considering that the deceased was only between sixteen and seventeen

case of Exconde vs. Capuno,[8] where the only issue involved as expressly

years, and in good health when he died, and (e) P2,000.00 for attorney's

stated in the decision, was whether the therein defendant father could be

fee, plus the costs of this action.

held civilly liable for damages resulting from a death caused in a motor

2. Absolving the other defendants.

vehicle accident driven unauthorizedly and negligently by his minor son,

"3. Dismissing the defendants' counterclaim for lack of merit.

(which issue was resolved adversely against the father). 'Nevertheless,

the dictum in such earlier case that "(I)t is true that under the law abovequoted, 'teachers or directors of arts and trades are liable for any damage

Plaintiffs' appeal raises the principal legal question that under the factual
findings of the trial court, which are now beyond review, the trial court erred
in absolving the defendants-school officials instead of holding them jointly
and severally liable as tortfeasors, with defendant Daffon, for the damages

caused by their pupils or apprentices while they are under their custody',
but this provision only applies to an institution of arts and trades and not to
any academic educational institution. " was expressly cited and quoted in
Mercado.

awarded them as a result of their son's death. The Court finds the appeal,
in the main, to be meritorious.

2. The case at bar was instituted directly against the school officials and
squarely raises the issue of liability of teachers and heads of schools under

1. The lower court absolved defendants-school officials on the ground that

the provisions of Article 2180, Civil Code, which expressly hold "teachers
or heads of establishments of arts and trades ... liable for damages caused
by their pupils and students and apprentices, so long as they remain in
their custody", are not applicable to the case at bar, since "there is no
evidence that the accused Daffon [who inflicted the fatal fist blows[6] lived
and boarded with his teacher or the other defendants-officials of the

Article 2180, Civil Code, for damages caused by their pupils and students
against fellow students on the school premises. Here, the parents of the
student at fault, defendant Daffon, are not involved, since Daffon was
already of age at the time of the tragic incident. There is no question,
either, that the school involved is a non-academic school,[9] the Manila
Technical Institute being admittedly a technical vocational and industrial
school.

school. These defendants cannot therefore be made responsible for the

tort of the defendant Daffon."

The Court holds that under the cited codal article, defendants head and
teacher of the Manila Technical Institute (defendants Valenton and

The lower court based its legal conclusion expressly on the Court's dictum
in Mercado vs. Court of Appeals,[7] that "(I)t would seem that the clause 'so
long as they remain in their custody,' contemplates a situation where the
pupil lives and boards with the teacher, such that the control, direction and
influence on the pupil supersedes those of the parents. In these circumstances the control or influence over the conduct and actions of the pupil
would pass from the father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation does not appear in
the case at bar: the pupils appear to go to school during school hours and
go back to their homes with their parents after school is over." This dictum
had been made in rejecting therein petitioner-father's contention that his
minor son's school, Lourdes Catholic School at Kanlaon, Quezon City
[which was not a party to the case] should be held responsible, rather than

Quibulue, respectively) are liable jointly and severally for damages to

plaintiffs-parents for the death of the latter's minor son at the hands of
defendant Daffon at the school's laboratory room. No liability attaches to
defendant Brillantes as a mere member of the school's board of directors.
The school itself cannot be held similarly liable, since it has not been
properly impleaded as party defendant. While plaintiffs sought to so
implead it, by impleading improperly defendant Brillantes, its former single
proprietor, the lower court found that it had been incorporated since August
2, 1962, and therefore the school itself, as thus incorporated, should have
been brought in as party defendant. Plaintiffs failed to do so,
notwithstanding that Brillantes and his co-defendants in their reply to
plaintiffs' request for admission had expressly manifested and made of
record that "defendant Antonio C. Brillantes is not the registered

him as father, for the moral damages of P2,000.00 adjudged against him

98 | P a g e

Torts 5

owner/head of the 'Manila Technical Institute' which is now a corporation

and is not owned by any individual person."

[10]

quasi-delict of their co-defendant Daffon in the latter's having caused the

death of his classmate, the deceased Dominador Palisoc. The unfortunate
death resulting from the fight between the protagonists-students could

3. The rationale of such liability of school heads and teachers for the

have been avoided, had said defendants but complied with their duty of

tortious acts of their pupils and students, so long as they remain in their

providing adequate supervision over the activities of the students in the

custody, is that they stand, to a certain extent, as to their pupils and

school premises to protect their students from harm, whether at the hands

students, in loco parentis and are called upon to "exercise reasonable

of fellow students or other parties. At any rate, the law holds them liable

supervision over the conduct of the child."

[11]

This is expressly provided for

in Articles 349, 350 and 352 of the Civil Code.

[12]

In the law of torts, the

unless they relieve themselves of such liability, in compliance with the last
paragraph of Article 2180, Civil Code, by "(proving) that they observed all

governing principle is that the protective custody of the school heads and

the diligence of a good father of a family to prevent damage." In the light of

teachers is mandatorily substituted for that of the parents, and hence, it

the factual findings of the lower court's decision, said defendants failed to

becomes their obligation as well as that of the school itself to provide

prove such exemption from liability.

proper supervision of the students' activities during the whole time that they
are at attendance in the school, including recess time, as well as to take

7. Plaintiffs-appellees' contention that the award of P6,000.00 as

the necessary precautions to protect the students in their custody from

indemnity for the death of their son should be increased to P12,000.00 as

dangers and hazards that would reasonably be anticipated, including

set by the Court in People vs. Pantoja,[15] and observed in all death

injuries that some student themselves may inflict willfully or through

indemnity cases thereafter is well taken. The Court, in Pantoja, after noting

negligence on their fellow students.

the decline in the purchasing power of the Philippine peso, had expressed
its "considered opinion that the amount of award of compensatory

4. As tersely summarized by Mr. Justice J. B. L. Reyes in his dissenting

damages for death caused by a crime or quasi-delict should now be

opinion in Exconde, "the basis of the presumption of negligence of Art.

P12,000.00." The Court thereby adjusted the minimum amount of

1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc.

"compensatory damages for death caused by a crime or quasi-delict" as

are supposed to have incurred in the exercise of their authority"

[13]

and

per Article 2206, Civil Code, from the old stated minimum of P3,000.00 to

'where the parent places the child under the effective authority of the

P12,000.00, which amount is to be awarded "even though there may have

teacher, the latter, and not the parent, should be the one answerable for

been mitigating circumstances" pursuant to the express provisions of said

the torts committed while under his custody, for the very reason that the

codal article.

parent is not supposed to interfere with the discipline of the school nor with
the authority and supervision of the teacher while the child is under

8. Plaintiffs-appellees' other claims on appeal that the lower court should

instruction." The school itself, likewise, has to respond for the fault or
negligence of its school head and teachers under the same cited article.

have awarded exemplary damages and imposed legal interest on the total
[14]

damages awarded, besides increasing the award of attorney's fees all

concern matters that are left by law to the discretion of the trial court and

5. The lower court therefore erred in law in absolving defendants-school

the Court has not been shown any error or abuse in the exercise of such

officials on the ground that they could be held liable under Article 2180,

discretion on the part of the trial court.[16] Decisive here is the touchstone

Civil Code, only if the student who inflicted the fatal fist blows on his

provision of Article 2231, Civil Code, that 'In quasi-delicts, exemplary

classmate and victim "lived and boarded with his teacher or the other

damages may be granted if the defendant acted with gross negligence."

defendants officials of the school." As stated above, the phrase used in the

No gross negligence on the part of defendants was found by the trial court

cited article -- "so long as (the students) remain in their custody" means the to warrant the imposition of exemplary damages, as well as of interest and
protective and supervisory custody that the school and its heads and

increased attorney's fees, and the Court has not been shown in this appeal

teachers exercise over the pupils and students for as long as they are at

any compelling reason to disturb such finding.

attendance in the school, including recess time. There is nothing in the law
that requires that for such liability to attach, the pupil or student who

ACCORDINGLY, the judgment appealed from is modified so as to provide

commits the tortious act must live and board in the school, as erroneously

as follows:

held by the lower court, and the dicta in Mercado (as well as in Exconde)
on which it relied, must now be deemed to have been set aside by the pre-

1. Sentencing the defendants Virgilio L. Daffon, Teodosio V. Valenton and

sent decision.

Santiago M. Quibulue jointly and severally to pay plaintiffs as heirs of the

deceased Dominador Palisoc (a) P12,000.00 for the death of Dominador

6. Defendants Valenton and Quibulue as president and teacher-in-charge

Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c)

of the school must therefore be held jointly and severally liable for the

P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power
99 | P a g e

Torts 5

and (e) P 2,000.00 for attorney's fee, plus the costs of this action in both
instances; 2. absolving defendant Antonio C. Brillantes from the complaint;
and 3. dismissing defendants' counterclaims.

100 | P a g e

Torts 5

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR.,

The basic undisputed facts are that Alfredo Amadora went to the San Jose-

NORMA A. YLAYA, PANTALEON A. AMADORA, JOSE A. AMADORA

Recoletos on April 13, 1972, and while in its auditorium was shot to death

III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A.

by Pablito Daffon, a classmate. On the implications and consequences of

AMADORA SERREC A. AMADORA, VICENTE A. AMADORA AND

these facts, the parties sharply disagree.

MARIA TISCALINA A. AMADORA, PETITIONERS, VS. HONORABLE

COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR The petitioners contend that their son was in the school to finish his
LLUCH, SERGIO P. DAMASO, JR., CELESTINO DICON, ANIANO
ABELLANA, PABLITO DAFFON, THRU HIS PARENTS AND NATURAL
GUARDIANS, MR. AND MRS. NICANOR GUMBAN, AND ROLANDO
VALENCIA, THRU HIS GUARDIAN, ATTY. FRANCISCO ALONSO,
RESPONDENTS.

physics experiment as a prerequisite to his graduation; hence, he was then

under the custody of the private respondents. The private respondents
submit that Alfredo Amadora had gone to the school only for the purpose of
submitting his physics report and that he was no longer in their custody
because the semester had already ended.

DECISION

There is also the question of the identity of the gun used which the
petitioners consider important because of an earlier incident which they

CRUZ, J.:

claim underscores the negligence of the school and at least one of the
private respondents. It is not denied by the respondents that on April 7,

Like any prospective graduate, Alfredo Amadora was looking forward to the 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose
commencement exercises where he would ascend the stage and in the

Gumban an unlicensed pistol but later returned it to him without making a

presence of his relatives and friends receive his high school diploma.

report to the principal or taking any further action.[6] As Gumban was one of

These ceremonies were scheduled on April 16, 1972. As it turned out,

the companions of Daffon when the latter fired the gun that killed Alfredo,

though, fate would intervene and deny him that awaited experience. On

the petitioners contend that this was the same pistol that had been

April 13, 1972, while they were in the auditorium of their school, the

confiscated from Gumban and that their son would not have been killed if it

Colegio de San Jose-Recoletes, a classmate, Pablito Daffon, fired a gun

had not been returned by Damaso. The respondents say, however, that

that mortally hit Alfredo, ending all his expectations and his life as well. The there is no proof that the gun was the same firearm that killed Alfredo.
victim was only seventeen years old.[1]
Resolution of all these disagreements will depend on the interpretation of
Daffon was convicted of homicide thru reckless imprudence. [2] Additionally,

Article 2180 which, as it happens, is invoked by both parties in support of

the herein petitioners, as the victim's parents, filed a civil action for

their conflicting positions. The pertinent part of this article reads as follows:

damages under Article 2180 of the Civil Code against the Colegio de San

"Lastly, teachers or heads of establishments of arts and trades shall be

Jose-Recoletos, its rector, the high school principal, the dean of boys, and

liable for damages caused by their pupils and students or apprentices so

the physics teacher, together with Daffon and two other students, through

long as they remain in their custody."

their respective parents. The complaint against the students was later

Three cases have so far been decided by the Court in connection with the

dropped. After trial, the Court of First Instance of Cebu held the remaining

above-quoted provision, to wit: Exconde v. Capuno,[7] Mercado v. Court of

defendants liable to the plaintiffs in the sum of P294,984.00, representing

Appeals,[8] and Palisoc v. Brillantes.[9] These will be briefly reviewed in this

death compensation, loss of earning capacity, costs of litigation, funeral

opinion for a better resolution of the case at bar.

[3]

expenses, moral damages, exemplary damages, and attorney's fees. On

appeal to the respondent court, however, the decision was reversed and all In the Exconde Case, Dante Capuno, a student of the Balintawak
the defendants were completely absolved.[4]

Elementary School and a Boy Scout, attended a Rizal Day parade on

instructions of the city school supervisor. After the parade, the boy boarded

In its decision, which is now the subject of this petition for certiorari under

a jeep, took over its wheel and drove it so recklessly that it turned turtle,

Rule 45 of the Rules of Court, the respondent court found that Article 2180

resulting in the death of two of its passengers. Dante was found guilty of

was not applicable as the Colegio de San Jose-Recoletos was not a school double homicide with reckless imprudence. In the separate civil action filed
of arts and trades but an academic institution of learning. It also held that

against them, his father was held solidarily liable with him in damages

the students were not in the custody of the school at the time of the

under Article 1903 (now Article 2180) of the Civil Code for the tort

incident as the semester had already ended, that there was no clear

committed by the 15-year old boy.

identification of the fatal gun, and that in any event the defendants had
exercised the necessary diligence in preventing the injury.[5]

This decision, which was penned by Justice Bautista Angelo on June 29,
1957, exculpated the school in an obiter dictum (as it was not a party to the
101 | P a g e

Torts 5

case) on the ground that it was not a school of arts and trades. Justice

cited codal provision to academic institutions will have to await another

J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes

case wherein it may properly be raised."

concurred, dissented, arguing that it was the school authorities who should
be held liable. Liability under this rule, he said, was imposed on (1)

This is the case.

teachers in general; and (2) heads of schools of arts and trades in

particular. The modifying clause "of establishments of arts and trades"

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has

should apply only to "heads" and not "teachers."

been directly impleaded and is sought to be held liable under Article 2180;
and unlike in Palisoc, it is not a school of arts and trades but an academic

Exconde was reiterated in the Mercado Case, and with an elaboration. A

institution of learning. The parties herein have also directly raised the

student cut a classmate with a razor blade during recess time at the

question of whether or not Article 2180 covers even establishments which

Lourdes Catholic School in Quezon City, and the parents of the victim sued are technically not schools of arts and trades, and, if so, when the
the culprit's parents for damages. Through Justice Labrador, the Court

offending student is supposed to be "in its custody."

declared in another obiter (as the school itself had also not been sued) that
the school was not liable because it was not ar establishment of arts and

After an exhaustive examination of the problem, the Court has come to the

trades. Moreover, the custody requirement had not been proved as this

conclusion that the provision in question should apply to all schools,

"contemplates a situation where the student lives and boards with the

academic as well as non-academic. Where the school is academic rather

teacher, such that the control, direction and influences on the pupil

than technical or vocational in nature, responsibility for the tort committed

supersede those of the parents." Justice J.B.L. Reyes did not take part but

by the student will attach to the teacher in charge of such student, following

the other members of the Court concurred in this decision promulgated on

the first part of the provision. This is the general rule. In the case of

May 30, 1960.

establishments of arts and trades, it is the head thereof, and only he, who
shall be held liable as an exception to the general rule. In other words,

In Palisoc v. Brillantes, decided on October 4, 1971, a 16-year old student

teachers in general shall be liable for the acts of their students except

was killed by a classmate with fist blows in the laboratory of the Manila

where the school is technical in nature, in which case it is the head thereof

Technical Institute. Although the wrongdoer - who was already of age - was who shall be answerable. Following the canon of reddendo singula
not boarding in the school, the head thereof and the teacher in charge

singulis, "teachers" should apply to the words "pupils and students" and

were held solidarily liable with him. The Court declared through Justice

"heads of establishments of arts and trades" to the word "apprentices."

Teehankee:
"The phrase used in the cited article -'so long as (the students) remain in

The Court thus conforms to the dissenting opinion expressed by Justice

their custody' - means the protective and supervisory custody that the

J.B.L Reyes in Exconde where he said in part:

school and its heads and teachers exercise over the pupils and students

"I can see no sound reason for limiting Art. 1903 of the old Civil Code to

for as long as they are at attendance in the school, including recess time.

teachers of arts and trades and not to academic ones. What substantial

There is nothing in the law that requires that for such liability to attach, the

difference is there between them insofar as concerns the proper

pupil or student who commits the tortious act must live and board in the

supervision and vigilance over their pupils? It cannot be seriously

school, as erroneously held by the lower court, and the dicta in Mercado

contended that an academic teacher is exempt from the duty of watching

(as well as in Exconde) on which it relied, must now be deemed to have

that his pupils do not commit a tort to the detriment of third persons, so

been set aside by the present decision."

long as they are in a position to exercise authority and supervision over the

This decision was concurred in by five other members,

[10]

including Justice

pupil. In my opinion, in the phrase 'teachers or heads of establishments of

J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even

arts and trades' used in Art. 1903 of the old Civil Code, the words 'arts and

students already of age were covered by the provision since they were

trades' does not qualify 'teachers' but only 'heads of establishments.' The

equally in the custody of the school and subject to its discipline. Dissenting

phrase is only an updated version of the equivalent terms 'preceptores y

with three others,

[11]

Justice Makalintal was for retaining the custody

artesanos' used in the Italian and French Civil Codes.

interpretation in Mercado and submitted that the rule should apply only to
torts committed by students not yet of age as the school would be acting

"If, as conceded by all commentators, the basis of the presumption of

only in loco parentis.

negligence of Art. 1903 in some culpa in vigilando that the parents,

teachers, etc. are supposed to have incurred in the exercise of their

In a footnote, Justice Teehankee said he agreed with Justice Reyes's

authority, it would seem clear that where the parent places the child under

dissent in the Exconde Case but added that "since the school involved at

the effective authority of the teacher, the latter, and not the parent, should

bar is a non-academic school, the question as to the applicability of the

be the one answerable for the torts committed while under his custody, for
102 | P a g e

Torts 5

the very reason that the parent is not supposed to interfere with the

duties over the teachers who were the persons directly dealing with the

discipline of the school nor with the authority and supervision of the teacher students. The head of the academic school had then (as now) only a
while the child is under instruction. And if there is no authority, there can be vicarious relationship with the students. Consequently, while he could not
no responsibility."

be directly faulted for the acts of the students, the head of the school of

There is really no substantial distinction between the academic and the

arts and trades, because of his closer ties with them, could be so blamed.

non-academic schools insofar as torts committed by their, students are

concerned. The same vigilance is expected from the teacher over the

It is conceded that the distinction no longer obtains at present in view of the

students under his control and supervision, whatever the nature of the

expansion of the schools of arts and trades, the consequent increase in

school where he is teaching. The suggestion in the Exconde and Mercado

their enrollment, and the corresponding diminution of the direct and

Cases is that the provision would make the teacher or even the head of the

personal contact of their heads with the students. Article 2180, however,

school of arts and trades liable for an injury caused by any student in its

remains unchanged. In its present state, the provision must be interpreted

custody but if that same tort were committed in an academic school, no

by the Court according to its clear and original mandate until the

liability would attach to the teacher or the school head. All other

legislature, taking into account the changes in the situation subject to be

circumstances being the same, the teacher or the head of the academic

regulated, sees fit to enact the necessary amendment.

school would be absolved whereas the teacher and the head of the nonacademic school would be held liable, and simply because the latter is a

The other matter to be resolved is the duration of the responsibility of the

school of arts and trades.

teacher or the head of the school of arts and trades over the students. Is
such responsibility co-extensive with the period when the student is

The Court cannot see why different degrees of vigilance should be

actually undergoing studies during the school term, as contended by the

exercised by the school authorities on the basis only of the nature of their

respondents and impliedly admitted by the petitioners themselves?

respective schools. There does not seem to be any plausible reason for
relaxing that vigilance simply because the school is academic in nature and From a reading of the provision under examination, it is clear that while the
for increasing such vigilance where the school is non-academic. Notably,

custody requirement, to repeat Palisoc v. Brillantes, does not mean that the

the injury subject of liability is caused by the student and not by the school

student must be boarding with the school authorities, it does signify that the

itself nor is it a result of the operations of the school or its equipment. The

student should be within the control and under the influence of the school

injury contemplated may be caused by any student regardless of the

authorities at the time of the occurrence of the injury. This does not

school where he is registered. The teacher certainly should not be able to

necessarily mean that such custody be co-terminous with the semester,

excuse himself by simply showing that he is teaching in an academic

beginning with the start of classes and ending upon the close thereof, and

school where, on the other hand, the head would be held liable if the

excluding the time before or after such period, such as the period of

school were non-academic.

registration, and in the case of graduating students, the period before the
commencement exercises. In the view of the Court, the student is in the

These questions, though, may be asked: If the teacher of the academic

custody of the school authorities as long as he is under the control and

school is to be held answerable for the torts committed by his students,

influence of the school and within its premises, whether the semester has

why is it only the head of the school only who is held liable where the injury

not yet begun or has already ended.

is caused in a school of arts and trades? And in the case of the academic
or non-technical school, why not apply the rule also to the head thereof

It is too tenuous to argue that the student comes under the discipline of the

instead of imposing the liability only on the teacher?

school only upon the start of classes notwithstanding that before that day
he has already registered and thus placed himself under its rules. Neither

The reason for the disparity can be traced to the fact that historically the

should such discipline be deemed ended upon the last day of classes

head of the school of arts and trades exercised a closer tutelage over his

notwithstanding that there may still be certain requisites to be satisfied for

pupils than the head of the academic school. The old schools of arts and

completion of the course, such as submission of reports, term papers,

trades were engaged in the training of artisans apprenticed to their master

clearances and the like. During such periods, the student is still subject to

who personally and directly instructed them on the technique and secrets

the disciplinary authority of the school and cannot consider himself

of their craft. The head of the school of arts and trades was such a master

released altogether from observance of its rules.

and so was personally involved in the task of teaching his students, who
usually even boarded with him and so came under his constant control,

As long as it can be shown that the student is in the school premises in

supervision and influence. By contrast, the head of the academic school

pursuance of a legitimate student objective, in the exercise of a legitimate

was not as involved with his students and exercised only administrative

student right, and even in the enjoyment of a legitimate student privilege,

103 | P a g e

Torts 5

the responsibility of the school authorities over the student continues.

Makalintal in his dissenting opinion in Palisoc that the school may be

Indeed, even if the student should be doing nothing more than relaxing in

unduly exposed to liability under this article in view of the increasing

the campus in the company of his classmates and friends and enjoying the

activism among the students that is likely to cause violence and resulting

ambience and atmosphere of the school, he is still within the custody and

injuries in the school premises. That is a valid fear, to be sure.

subject to the discipline of the school authorities under the provisions of

Nevertheless, it should be repeated that, under the present ruling, it is not

Article 2180.

the school that will be held directly liable. Moreover, the defense of due
diligence is available to it in case it is sought to be held answerable as

During all these occasions, it is obviously the teacher-in-charge who must

principal for the acts or omission of its head or the teacher in its employ.

answer for his students' torts, in practically the same way that the parents
are responsible for the child when he is in their custody. The teacher-in-

The school can show that it exercised proper measures in selecting the

charge is the one designated by the dean, principal, or other administrative

head or its teachers and the appropriate supervision over them in the

superior to exercise supervision over the pupils in the specific classes or

custody and instruction of the pupils pursuant to its rules and regulations

sections to which they are assigned. It is not necessary that at the time of

for the maintenance of discipline among them. In almost all cases now, in

the injury, the teacher be physically present and in a position to prevent it.

fact, these measures are effected through the assistance of an adequate

Custody does not connote immediate and actual physical control but refers

security force to help the teacher physically enforce those rules upon the

more to the influence exerted on the child and the discipline instilled in him

students. This should bolster the claim of the school that it has taken

as a result of such influence. Thus, for the injuries caused by the student,

adequate steps to prevent any injury that may be committed by its

the teacher and not the parent shall be held responsible if the tort was

students.

committed within the premises of the school at any time when its authority
could be validly exercised over him.

A fortiori, the teacher himself may invoke this defense as it would otherwise
be unfair to hold him directly answerable for the damage caused by his

In any event, it should be noted that the liability imposed by this article is

students as long as they are in the school premises and presumably under

supposed to fall directly on the teacher or the head of the school of arts

his influence. In this respect, the Court is disposed not to expect from the

and trades and not on the school itself. If at all, the school, whatever its

teacher the same measure of responsibility imposed on the parent for their

nature, may be held to answer for the acts of its teachers or even of the

influence over the child is not equal in degree. Obviously, the parent can

head thereof under the general principle of respondeat superior, but then it

expect more obedience from the child because the latter's dependence on

may exculpate itself from liability by proof that it had exercised the

him is greater than on the teacher. It need not be stressed that such

diligence of a bonus paterfamilias.

dependence includes the child's support and sustenance whereas

submission to the teacher's influence, besides being co-terminous with the

Such defense is, of course, also available to the teacher or the head of the

period of custody, is usually enforced only because of the students' desire

school of arts and trades directly held to answer for the tort committed by

to pass the course. The parent can instill more lasting discipline on the

the student. As long as the defendant can show that he had taken the

child than the teacher and so should be held to a greater accountability

necessary precautions to prevent the injury complained of, he can

than the teacher for the tort committed by the child.

exonerate himself from the liability imposed by Article 2180, which also
states that:

And if it is also considered that under the article in question, the teacher or

"The responsibility treated of in this article shall cease when the persons

the head of the school of arts and trades is responsible for the damage

herein mentioned prove that they observed all the diligence of a good

caused by the student or apprentice even if he is already of age - and

father of a family to prevent damages."

therefore less tractable than the minor - then there should all the more be

In this connection, it should be observed that the teacher will be held liable

justification to require from the school authorities less accountability as

not only when he is acting in loco parentis for the law does not require that

long as they can prove reasonable diligence in preventing the injury. After

the offending student be of minority age. Unlike the parent, who will be

all, if the parent himself is no longer liable for the student's acts because he

liable only if his child is still a minor, the teacher is held answerable by the

has reached majority age and so is no longer under the former's control,

law for the act of the student under him regardless of the student's age.

there is then all the more reason for leniency in assessing the teacher's

Thus, in the Palisoc Case, liability attached to the teacher and the head of

responsibility for the acts of the student.

the technical school although the wrongdoer was already of age. In this
sense, Article 2180 treats the parent more favorably than the teacher.

Applying the foregoing considerations, the Court has arrived at the

following conclusions:

The Court is not unmindful of the apprehensions expressed by Justice

104 | P a g e

Torts 5

1.

At the time Alfredo Amadora was fatally shot, he was

in view of the unrefuted evidence that he had earlier

still in the custody of the authorities of Colegio de San

confiscated an unlicensed gun from one of the

Jose-Recoletos notwithstanding that the fourth year

students and returned the same later to him without

classes had formally ended. It was immaterial if he

taking disciplinary action or reporting the matter to

was in the school auditorium to finish his physics

higher authorities. While this was clearly negligence

experiment or merely to submit his physics report for

on his part, for which he deserves sanctions from the

what is important is that he was there for a legitimate

school, it does not necessarily link him to the shooting

purpose. As previously observed, even the mere

of Amador as it has not been shown that the

savoring of the company of his friends in the premises

confiscated and returned pistol was the gun that killed

of the school is a legitimate purpose that would have

the petitioners' son.

also brought him in the custody of the school

authorities.

5.

Finally, as previously observed, the Colegio de San

Jose-Recoletos cannot be held directly liable under

2.

The rector, the high school principal and the dean of

the article because only the teacher or the head of the

boys cannot be held liable because none of them was

school of arts and trades is made responsible for the

the teacher-in-charge as previously defined. Each of

damage caused by the student or apprentice. Neither

them was exercising only a general authority over the

can it be held to answer for the tort committed by any

student body and not the direct control and influence

of the other private respondents for none of them has

exerted by the teacher placed in charge of particular

been found to have been charged with the custody of

classes or sections and thus immediately involved in

the offending student or has been remiss in the

its discipline. The evidence of the parties does not

discharge of his duties in connection with such

disclose who the teacher-in-charge of the offending

custody.

student was. The mere fact that Alfredo Amadora had

gone to school that day in connection with his physics

In sum, the Court finds under the facts as disclosed by the record and in

report did not necessarily make the physics teacher,

the light of the principles herein announced that none of the respondents is

respondent Celestino Dicon, the teacher-in-charge of

liable for the injury inflicted by Pablito Daffon on Alfredo Amadora that

Alfredo's killer.

resulted in the latter's death at the auditorium of the Colegio de San JoseRecoletos on April 13, 1972. While we deeply sympathize with the

3.

At any rate, assuming that he was the teacher-in-

petitioners over the loss of their son under the tragic circumstances here

charge, there is no showing that Dicon was negligent

related, we nevertheless are unable to extend them the material relief they

in enforcing discipline upon Daffon or that he had

seek, as a balm to their grief, under the law they have invoked.

waived observance of the rules and regulations of the

school or condoned their non-observance. His

WHEREFORE, the petition is DENIED, without any pronouncement as to

absence when the tragedy happened cannot be

costs. It is so ordered.

considered against him because he was not supposed

or required to report to school on that day. And while it
is true that the offending student was still in the
custody of the teacher-in-charge even if the latter was
physically absent when the tort was committed, it has
not been established that it was caused by his laxness
in enforcing discipline upon the student. On the
contrary, the private respondents have proved that
they had exercised due diligence, through the
enforcement of the school regulations, in maintaining
that discipline.

4.

In the absence of a teacher-in-charge, it is probably

the dean of boys who should be held liable, especially
105 | P a g e

Torts 5

BENJAMIN SALVOSA AND BAGUIO COLLEGES FOUNDATION,

Commission No. 30, AFP.[12]

PETITIONERS, VS. THE INTERMEDIATE APPELLATE COURT,

EDUARDO B. CASTRO, DIOMEDES B. CASTRO, VIRGINIA B. CASTRO Subsequently, the heirs of Napoleon Castro sued for damages, impleading
AND RODOLFO B. CASTRO, RESPONDENTS.

Jimmy B. Abon, Roberto C. Ungos (ROTC Commandant), Benjamin

Salvosa (President and Chairman of the Board of BCF), Jesus Salvosa

DECISION

(Executive Vice President of BCF), Libertad D. Quetolio (Dean of the

College of Education and Executive Trustee of BCF) and the Baguio

PADILLA , J.:

Colleges Foundation, Inc. as party defendants. After hearing, the Trial

Court rendered a decision, (1) sentencing defendants Jimmy B. Abon,

In this petition for review on certiorari, petitioners seek the reversal of the

Benjamin Salvosa and Baguio Colleges Foundation, Inc., jointly and

decision[1] of respondent Intermediate Appellate Court, dated 7 December

severally, to pay private respondents, as heirs of Napoleon Castro: a)

[2]

1984, in AC-G.R. No. CV 69876, in so far as it affirmed the decision of

P12,000.00 for the death of Napoleon Castro, (b) P316,000.00 as

the Court of First Instance of Tarlac (hereinafter referred to as the Trial

indemnity for the loss of earning capacity of the deceased, (c) P5,000.00

Court), which held, among others, petitioners solidarily liable with Jimmy B.

as moral damages, (d) P6,000.00 as actual damages, and (e) P5,000.00

Abon, under Art. 2180 of the Civil Code.

as attorneys fees, plus costs; (2) absolving the other defendants; and (3)
dismissing the defendants' counterclaim for lack of merit.[13] On appeal by

The relevant facts, as found by the Trial Court and adopted by reference by petitioners, the respondent Court affirmed with modification the decision of
the respondent Court, are:

the Trial Court. The modification consisted in reducing the award for loss of

"x x x Baguio Colleges Foundation (BCF, hereafter) is an academic

earning capacity of the deceased from P316,000 to P30,000, by way of

institution. x x x [However], it is also an institution of arts and trade. It has

temperate damages, and increasing the indemnity for the death of

so advertised itself, as its own evidence shows. Its brochure (Exh. 2)

Napoleon Castro from P12,000 to P30,000.

shows that BCF has a full-fledged technical-vocational department offering

Communication, Broadcast and Telytype Technician courses as well as

Hence, this petition.

electronics Serviceman and Automotive Mechanics courses. x x x these

courses divest BCF of the nature or character of being purely or exclusively The central issue in this case is whether or not petitioners can be held
an academic institution."[3]

solidarily liable with Jimmy B. Abon for damages under Article 2180 of the

Within the premises of the BCF is an ROTC Unit, the Baguio Colleges

Civil Code, as a consequence of the tortious act of Jimmy B. Abon.

Foundation Reserve Officers Training Corps (ROTC) Unit, which is under

the full control of the Armed Forces of the Philippines. [4] The ROTC Unit, by Under the penultimate paragraph of Art. 2180 of the Civil Code, teachers or
way of accomodation to the Armed Forces of the Philippines (AFP),

heads of establishments of arts and trades are liable for "damages caused

pursuant to Department Order No. 14, Series of 1975 of the Department of

by their pupils and students or apprentices, so long as they remain in their

[5]

Education and Culture, is provided by the BCF an office and an armory

custody." The rationale of such liability is that so long as the student

located at the basement of its main building.[6]

remains in the custody of a teacher, the latter "stands, to a certain extent,

in loco parentis [as to the student] and [is] called upon to exercise

The Baguio Colleges Foundation ROTC Unit had Jimmy B. Abon as its

reasonable supervision over the conduct of the [student]."[14] Likewise, "the

duly appointed armorer.[7] As armorer of the ROTC Unit, Jimmy B. Abon

phrase used in [Art. 2180]- so long as (the students) remain in their

received his appointment from the AFP. Not being an employee of the

custody means the protective and supervisory custody that the school and

BCF, he also received his salary from the AFP,[8] as well as orders from

its heads and teachers exercise over the pupils and students for as long as

Captain Roberto C. Ungos, the Commandant of the Baguio Colleges

they are at attendance in the school, including recess time."[15]

Foundation ROTC Unit, concurrent Commandant of other ROTC units in

Baguio and an employee (officer) of the AFP.[9] Jimmy B. Abon was also a

In the case at bar, in holding that Jimmy B. Abon was still in the protective

commerce student of the BCF.[10]

and supervisory custody of the Baguio Colleges Foundation when he shot

Napoleon Castro, the respondent Court ruled that:

On 3 March 1977, at around 8:00 p.m., in the parking space of BCF, Jimmy "it is true that Abon was not attending any class or school function at the
B. Abon shot Napoleon Castro a student of the University of Baguio with an time of the shooting incident, which was at about 8 o'clock in the evening;
unlicensed firearm which the former took from the armory of the ROTC Unit but considering that Abon was employed as an armorer and property
of the BCF.[11] As a result, Napoleon Castro died and Jimmy B. Abon was

custodian of the BCF ROTC unit, he must have been attending night

prosecuted for, and convicted of the crime of Homicide by Military

classes and therefore that hour in the evening was just about dismissal
106 | P a g e

Torts 5

time for him or soon thereafter. The time interval is safely within the 'recess
time' that the trial court spoke of and envisioned by the Palisoc case,
supra."[16] (Italic supplied)
In line with the case of Palisoc,[17] a student not "at attendance in the
school" cannot be in "recess" thereat. A "recess," as the concept is
embraced in the phrase "at attendance in the school," contemplates a
situation of temporary adjournment of school activities where the student
still remains within call of his mentor and is not permitted to leave the
school premises, or the area within which the school activity is conducted.
Recess by its nature does not include dismissal.[18] Likewise, the mere fact
of being enrolled or being in the premises of a school without more does
not constitute "attending school" or being in the "protective and supervisory
custody" of the school, as contemplated in the law.

Upon the foregoing considerations, we hold that Jimmy B. Abon cannot be

considered to have been "at attendance in the school," or in the custody of
BCF, when he shot Napoleon Castro. Logically, therefore, petitioners
cannot under Art. 2180 of the Civil Code be held solidarily liable with
Jimmy B. Abon for damages resulting from his acts.

Besides, the record shows that before the shooting incident, Roberto B.
Ungos ROTC Unit Commandant, AFP, had instructed Jimmy B. Abon "not
to leave the office and [to keep the armory] well guarded."[19] Apart from
negating a finding that Jimmy B. Abon was under the custody of the school
when he committed the act for which the petitioners are sought to be held
liable, this circumstance shows that Jimmy B. Abon was supposed to be
working in the armory with definite instructions from his superior, the ROTC
Commandant, when he shot Napoleon Castro.

Petitioners also raise the issue that, under Art. 2180 of the Civil Code, a
school which offers both academic and technical-vocational courses
cannot be held liable for a tort committed by a student enrolled only in its
academic program; however, considering that Jimmy B. Abon was not in
the custody of BCF when he shot Napoleon Castro, the Court deems it
unnecessary to pass upon such other issue.[20]

WHEREFORE, the decision appealed from is hereby REVERSED in so far

as it holds petitioners solidarily liable with Jimmy B. Abon for his tortious
act in the killing of Napoleon Castro. No costs.

SO ORDERED.

107 | P a g e

Torts 5

ST. MARYS ACADEMY, PETITIONER, VS. WILLIAM CARPITANOS

2.

Their liability being only subsidiary, defendants James

AND LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II,

Daniel, Sr. and Guada Daniel are hereby ordered to

JAMES DANIEL, SR., AND VIVENCIO VILLANUEVA, RESPONDENTS.

pay herein plaintiffs the amount of damages abovestated in the event of insolvency of principal obligor
St. Marys Academy of Dipolog City;

DECISION

PARDO, J.:

3.

Defendant James Daniel II, being a minor at the time

of the commission of the tort and who was under

The Case

special parental authority of defendant St. Marys

Academy, is ABSOLVED from paying the above-

The case is an appeal via certiorari from the decision[1] of the Court of

stated damages, same being adjudged against

Appeals as well as the resolution denying reconsideration, holding

defendants St. Marys Academy, and subsidiarily,

petitioner liable for damages arising from an accident that resulted in the

against his parents;

death of a student who had joined a campaign to visit the public schools in
Dipolog City to solicit enrollment.

4.

Defendant Vivencio Villanueva is hereby ABSOLVED

of any liability. His counterclaim not being in order as

The Facts

earlier discussed in this decision, is hereby

DISMISSED.

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

Claiming damages for the death of their only son, Sherwin Carpitanos,

IT IS SO ORDERED. (Decision, pp. 32-33; Records,

spouses William Carpitanos and Lucia Carpitanos filed on June 9, 1995 a

pp. 205-206).

case against James Daniel II and his parents, James Daniel Sr. and Guada
Daniel, the vehicle owner, Vivencio Villanueva and St. Marys Academy

From the records it appears that from 13 to 20 February 1995, defendant-

before the Regional Trial Court of Dipolog City.

appellant St. Marys Academy of Dipolog City conducted an enrollment

drive for the school year 1995-1996. A facet of the enrollment campaign

On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City

was the visitation of schools from where prospective enrollees were

rendered its decision the dispositive portion of which reads as follows:

studying. As a student of St. Marys Academy, Sherwin Carpitanos was

part of the campaigning group. Accordingly, on the fateful day, Sherwin,

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered

along with other high school students were riding in a Mitsubishi jeep

in the following manner:

owned by defendant Vivencio Villanueva on their way to Larayan

Elementary School, Larayan, Dapitan City. The jeep was driven by James

1.

Defendant St. Marys Academy of Dipolog City, is

Daniel II then 15 years old and a student of the same school. Allegedly,

hereby ordered to pay plaintiffs William Carpitanos

the latter drove the jeep in a reckless manner and as a result the jeep

and Luisa Carpitanos, the following sums of money:

turned turtle.

a.

b.

FIFTY THOUSAND PESOS (P50,000.00)

Sherwin Carpitanos died as a result of the injuries he sustained from the

indemnity for the loss of life of Sherwin S.

accident.[2]

Carpitanos;

In due time, petitioner St. Marys academy appealed the decision to the

FORTY THOUSAND PESOS (P40,000.00)

Court of Appeals.[3]

actual damages incurred by plaintiffs for

c.

d.

burial and related expenses;

On February 29, 2000, the Court of Appeals promulgated a decision

TEN THOUSAND PESOS (P10,000.00) for

reducing the actual damages to P25,000.00 but otherwise affirming the

attorneys fees;

decision a quo, in toto.[4]

FIVE HUNDRED THOUSAND PESOS

(P500,000.00) for moral damages; and to

On February 29, 2000, petitioner St. Marys Academy filed a motion for

pay costs.

reconsideration of the decision. However, on May 22, 2000, the Court of

Appeals denied the motion.[5]

108 | P a g e

Torts 5

the injury complained of. And the proximate cause of an injury is that
Hence, this appeal.

[6]

cause, which, in natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury, and without which the
The Issues

result would not have occurred.[12]

In this case, the respondents failed to show that the negligence of
petitioner was the proximate cause of the death of the victim.

1)

2)

Whether the Court of Appeals erred in holding the petitioner liable

for damages for the death of Sherwin Carpitanos.

Respondents Daniel spouses and Villanueva admitted that the immediate

Whether the Court of Appeals erred in affirming the award of moral

cause of the accident was not the negligence of petitioner or the reckless

damages against the petitioner.

driving of James Daniel II, but the detachment of the steering wheel guide
of the jeep.

The Courts Ruling

In their comment to the petition, respondents Daniel spouses and
We reverse the decision of the Court of Appeals.

Villanueva admitted the documentary exhibits establishing that the cause

of the accident was the detachment of the steering wheel guide of the

The Court of Appeals held petitioner St. Marys Academy liable for the

jeep. Hence, the cause of the accident was not the recklessness of James

death of Sherwin Carpitanos under Articles 218[7] and 219[8] of the Family

Daniel II but the mechanical defect in the jeep of Vivencio Villanueva.

Code, pointing out that petitioner was negligent in allowing a minor to drive
and in not having a teacher accompany the minor students in the jeep.

Respondents, including the spouses Carpitanos, parents of the deceased

Sherwin Carpitanos, did not dispute the report and testimony of the traffic
investigator who stated that the cause of the accident was the detachment

Under Article 218 of the Family Code, the following shall have special

of the steering wheel guide that caused the jeep to turn turtle.

parental authority over a minor child while under their supervision,

instruction or custody: (1) the school, its administrators and teachers; or (2)
the individual, entity or institution engaged in child care. This special
parental authority and responsibility applies to all authorized activities,
whether inside or outside the premises of the school, entity or institution.
Thus, such authority and responsibility applies to field trips, excursions and
other affairs of the pupils and students outside the school premises
whenever authorized by the school or its teachers.[9]

Under Article 219 of the Family Code, if the person under custody is a
minor, those exercising special parental authority are principally and
solidarily liable for damages caused by the acts or omissions of the
unemancipated minor while under their supervision, instruction, or
custody.[10]

Significantly, respondents did not present any evidence to show that the
proximate cause of the accident was the negligence of the school
authorities, or the reckless driving of James Daniel II. Hence, the
respondents reliance on Article 219 of the Family Code that those given
the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by acts or omissions of
the unemancipated minor was unfounded.

Further, there was no evidence that petitioner school allowed the minor
James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was
Ched Villanueva, grandson of respondent Vivencio Villanueva, who had
possession and control of the jeep. He was driving the vehicle and he
allowed James Daniel II, a minor, to drive the jeep at the time of the
accident.

However, for petitioner to be liable, there must be a finding that the act or
omission considered as negligent was the proximate cause of the injury
caused because the negligence must have a causal connection to the
accident.[11]
In order that there may be a recovery for an injury, however, it must be
shown that the injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of events, unbroken
by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. For, negligence, no matter in what it
consists, cannot create a right of action unless it is the proximate cause of

Hence, liability for the accident, whether caused by the negligence of the
minor driver or mechanical detachment of the steering wheel guide of the
jeep, must be pinned on the minors parents primarily. The negligence of
petitioner St. Marys Academy was only a remote cause of the accident.
Between the remote cause and the injury, there intervened the negligence
of the minors parents or the detachment of the steering wheel guide of the
jeep.
The proximate cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred.[13]
109 | P a g e

Torts 5

Considering that the negligence of the minor driver or the detachment of

the steering wheel guide of the jeep owned by respondent Villanueva was
an event over which petitioner St. Marys Academy had no control, and
which was the proximate cause of the accident, petitioner may not be held
liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for

moral damages in the amount of P500,000.00 awarded by the trial court
and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be

recovered if they are the proximate result of the defendants wrongful act or
omission.[14] In this case, the proximate cause of the accident was not
attributable to petitioner.

For the reason that petitioner was not directly liable for the accident, the
decision of the Court of Appeals ordering petitioner to pay death indemnity
to respondent Carpitanos must be deleted. Moreover, the grant of
attorneys fees as part of damages is the exception rather than the rule. [15]
The power of the court to award attorneys fees under Article 2208 of the
Civil Code demands factual, legal and equitable justification.[16] Thus, the
grant of attorneys fees against the petitioner is likewise deleted.

Incidentally, there was no question that the registered owner of the vehicle
was respondent Villanueva. He never denied and in fact admitted this
fact. We have held that the registered owner of any vehicle, even if not
used for public service, would primarily be responsible to the public or to
third persons for injuries caused the latter while the vehicle was being
driven on the highways or streets.[17] Hence, with the overwhelming
evidence presented by petitioner and the respondent Daniel spouses that
the accident occurred because of the detachment of the steering wheel
guide of the jeep, it is not the school, but the registered owner of the
vehicle who shall be held responsible for damages for the death of Sherwin
Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of

the Court of Appeals[18] and that of the trial court.[19] The Court remands the
case to the trial court for determination of the liability of defendants,
excluding petitioner St. Marys Academy, Dipolog City.

No costs.

SO ORDERED.

110 | P a g e

Torts 5

ST. JOSEPH'S COLLEGE, SR. JOSEPHINI AMBATALI, SFIC, AND

ROSALINDA TABUGO, PETITIONERS, VS. JAYSON MIRANDA,

payment of his medical expenses as well as other expenses incidental

thereto, which the latter failed to heed. Hence, [Jayson] was constrained to

REPRESENTED BY HIS FATHER, RODOLFO S. MIRANDA,

file the complaint for damages. [Petitioners], therefore, should likewise

RESPONDENT.

compensate [Jayson] for litigation expenses, including attorney's fees.

DECISION

On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and
Tabugo] alleged that [Jayson] was a grade six pupil of SJC in the school

NACHURA, J.:

year 1994-1995. On November 17, 1994, at about 1:30 in the afternoon,

the class to which [Jayson] belong[s] was conducting a science experiment

This petition for review on certiorari seeks to set aside the Decision[1] of the

under the guidance and supervision of Tabugo, the class science teacher,

Court of Appeals (CA) in CA-G.R. CV No. 68367, which affirmed in toto the

about fusion of sulphur powder and iron fillings by combining these

[2]

decision of the Regional Trial Court (RTC), Branch 221, Quezon City, in

elements in a test tube and heating the same. Before the science

Civil Case No. Q-95-22889.

experiment was conducted, [Jayson] and his classmates were given strict
instructions to follow the written procedure for the experiment and not to

The facts, as found by the CA, follow:

look into the test tube until the heated compound had cooled off. [Jayson],
however, a person of sufficient age and discretion and completely capable

On November 17, 1994, at around 1:30 in the afternoon inside St. Joseph

of understanding the English language and the instructions of his teacher,

College's [SJC's] premises, the class to which [respondent Jayson Val

without waiting for the heated compound to cool off, as required in the

Miranda] belonged was conducting a science experiment about fusion of

written procedure for the experiment and as repeatedly explained by the

sulphur powder and iron fillings under the tutelage of [petitioner] Rosalinda

teacher, violated such instructions and took a magnifying glass and looked

Tabugo, she being the subject teacher and employee of [petitioner] SJC.

at the compound, which at that moment spurted out of the test tube, a

The adviser of [Jayson's] class is x x x Estefania Abdan.

small particle hitting one of [Jayson's] eyes.

Tabugo left her class while it was doing the experiment without having

Jayson was rushed by the school employees to the school clinic and

adequately secured it from any untoward incident or occurrence. In the

thereafter transferred to St. Luke's Medical Center for treatment. At the

middle of the experiment, [Jayson], who was the assistant leader of one of

hospital, when Tabago visited [Jayson], the latter cried and apologized to

the class groups, checked the result of the experiment by looking into the

his teacher for violating her instructions not to look into the test tube until

test tube with magnifying glass. The test tube was being held by one of his

the compound had cooled off.

group mates who moved it close and towards the eye of [Jayson]. At that
instance, the compound in the test tube spurted out and several particles of After the treatment, [Jayson] was pronounced ready for discharge and an
which hit [Jayson's] eye and the different parts of the bodies of some of his

eye test showed that his vision had not been impaired or affected. In order

group mates. As a result thereof, [Jayson's] eyes were chemically burned,

to avoid additional hospital charges due to the delay in [Jayson's]

particularly his left eye, for which he had to undergo surgery and had to

discharge, Rodolfo S. Miranda, [Jayson's] father, requested SJC to

spend for his medication. Upon filing of this case [in] the lower court,

advance the amount of P26,176.35 representing [Jayson's] hospital bill

[Jayson's] wound had not completely healed and still had to undergo

until his wife could arrive from abroad and pay back the money. SJC

another surgery.

acceded to the request.

Upon learning of the incident and because of the need for finances,

On December 6, 1994, however, the parents of [Jayson], through counsel,

[Jayson's] mother, who was working abroad, had to rush back home for

wrote SJC a letter demanding that it should shoulder all the medical

which she spent P36,070.00 for her fares and had to forego her salary from expenses of [Jayson] that had been incurred and will be incurred further
November 23, 1994 to December 26, 1994, in the amount of at least

arising from the accident caused by the science experiment. In a letter

P40,000.00.

dated December 14, 1994, the counsel for SJC, represented by Sr.
Josephini Ambatali, SFIC, explained that the school cannot accede to the

Then, too, [Jayson] and his parents suffered sleepless nights, mental

demand because "the accident occurred by reason of [Jayson's] failure to

anguish and wounded feelings as a result of his injury due to [petitioners']

comply with the written procedure for the experiment and his teacher's

fault and failure to exercise the degree of care and diligence incumbent

repeated warnings and instruction that no student must face, much less

upon each one of them. Thus, they should be held liable for moral

look into, the opening of the test tube until the heated compound has

damages. Also, [Jayson] sent a demand letter to [petitioners] for the

cooled.[3]
111 | P a g e

Torts 5

Since SJC did not accede to the demand, Rodolfo, Jayson's father, on

III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING

Jayson's behalf, sued petitioners for damages.

THE AWARD OF ACTUAL DAMAGES DESPITE THE ABSENCE OF

PROOF TO SUPPORT THE SAME.

After trial, the RTC rendered judgment, to wit:

IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL
WHEREFORE, premises considered, judgment is hereby rendered in favor

DAMAGES TO [JAYSON].

of [Jayson] and against [petitioners]. This Court orders and holds the
[petitioners] joint[ly] and solidarily liable to pay [Jayson] the following

V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING

amount:

THE AWARD OF ATTORNEY'S FEES TO [JAYSON].

1. To pay [Jayson] the amount of P77,338.25 as actual damages;

VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE

However, [Jayson] is ordered to reimburse [petitioner] St. Joseph College

PETITIONERS' COUNTERCLAIM.[6]

the amount of P26,176.36 representing the advances given to pay

[Jayson's] initial hospital expenses or in the alternative to deduct said

We find no reason to depart from the uniform rulings of the lower courts

amount of P26,176.36 from the P77,338.25 actual damages herein

that petitioners were "negligent since they all failed to exercise the required

awarded by way of legal compensation;

reasonable care, prudence, caution and foresight to prevent or avoid

injuries to the students."

2. To pay [Jayson] the sum of P50,000.00 as mitigated moral damages;

Jurisprudence dictates that factual findings of the trial court, especially
3. To pay [Jayson] the sum of P30,000.00 as reasonable attorney's fees;

when affirmed by the appellate court, are accorded the highest degree of
respect and are considered conclusive between the parties.[7] A review of

4. To pay the costs of suit.

such findings by this Court is not warranted except for highly meritorious
circumstances when: (1) the findings of a trial court are grounded entirely

[4]

SO ORDERED.

on speculation, surmises or conjectures; (2) a lower court's inference from

its factual findings is manifestly mistaken, absurd or impossible; (3) there is

Aggrieved, petitioners appealed to the CA. However, as previously

grave abuse of discretion in the appreciation of facts; (4) the findings of the

adverted to, the CA affirmed in toto the ruling of the RTC, thus:

appellate court go beyond the issues of the case, or fail to notice certain
relevant facts which, if properly considered, will justify a different

WHEREFORE, in view of the foregoing, the assailed decision of the RTC

conclusion; (5) there is a misappreciation of facts; (6) the findings of fact

of Quezon City, Branch 221 dated September 6, 2000 is hereby

are conclusions without mention of the specific evidence on which they are

AFFIRMED IN TOTO. Costs against [petitioners].

[5]

based, are premised on the absence of evidence, or are contradicted by

evidence on record.[8] None of the foregoing exceptions which would

Undaunted, petitioners appealed` by certiorari to this Court, adamant that

warrant a reversal of the assailed decision obtains in this instance.

the CA grievously erred, thus:

Yet, petitioners maintain that the proximate cause of Jayson's injury was
I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING

his own negligence in disregarding the instructions given by Tabugo prior

THAT THE PROXIMATE CAUSE OF JAYSON'S INJURY WAS HIS OWN

to the experiment and peeking into the test tube. Petitioners invoke our

ACT OF LOOKING AT THE HEATED TEST TUBE BEFORE THE

ruling in St. Mary's Academy v. Carpitanos[9] which absolved St. Mary's

COMPOUND HAD COOLED IN COMPLETE DISREGARD OF

Academy from liability for the untimely death of its student during a school

INSTRUCTIONS GIVEN PRIOR TO THE EXPERIMENT.

sanctioned activity, declaring that "the negligence of petitioner St. Mary's

Academy was only a remote cause of the accident."

II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN

LIGHT OF THE RULING IN THE CASE OF ST. MARY'S COLLEGE V.

We are not convinced.

WILLIAM CARPITANOS, x x x JAYSON'S CONTRIBUTORY

NEGLIGENCE OF PEEKING INTO THE TEST TUBE WAS IN FACT THE

Contrary to petitioners' assertions, the lower courts' conclusions are borne

PROXIMATE CAUSE OF HIS INJURY FOR WHICH THE PETITIONERS

out by the records of this case. Both courts correctly concluded that the

SHOULD NOT BE HELD LIABLE.

immediate and proximate cause of the accident which caused injury to

112 | P a g e

Torts 5

Jayson was the sudden and unexpected explosion of the chemicals,

[petitioner] St. Joseph College will not exculpate it from liability because it

independent of any intervening cause. The assailed Decision of the CA

has been shown that it was guilty of inexcusable laxity in the supervision of

quotes with favor the RTC decision, thus:

its teachers (despite an apparent rigid screening process for hiring) and in
the maintenance of what should have been a safe and secured

In this case, [petitioners] failed to show that the negligence of [Jayson] was

environment for conducting dangerous experiments. [Petitioner] school is

the proximate cause of the latter's injury. We find that the immediate cause

still liable for the wrongful acts of the teachers and employees because it

of the accident was not the negligence of [Jayson] when he curiously

had full information on the nature of dangerous science experiments but

looked into the test tube when the chemicals suddenly exploded which

did not take affirmative steps to avert damage and injury to students. The

caused his injury, but the sudden and unexpected explosion of the

fact that there has never been any accident in the past during the conduct

chemicals independent of any intervening cause. [Petitioners] could have

of science experiments is not a justification to be complacent in just

prevented the mishap if they exercised a higher degree of care, caution

preserving the status quo and do away with creative foresight to install

and foresight. The court a quo correctly ruled that:

safety measures to protect the students. Schools should not simply install
safety reminders and distribute safety instructional manuals. More

"All of the [petitioners] are equally at fault and are liable for negligence

importantly, schools should provide protective gears and devices to shield

because all of them are responsible for exercising the required reasonable

students from expected risks and anticipated dangers.

care, prudence, caution and foresight to prevent or avoid injuries to the

students. The individual [petitioners] are persons charged with the teaching

"Ordinarily, the liability of teachers does not extend to the school or

and vigilance over their students as well as the supervision and ensuring of

university itself, although an educational institution may be held liable

their well-being. Based on the facts presented before this Court, these

under the principle of RESPONDENT SUPERIOR. It has also been held

[petitioners] were remiss in their responsibilities and lacking in the degree

that the liability of the employer for the [tortuous] acts or negligence of its

of vigilance expected of them. [Petitioner] subject teacher Rosalinda

employees is primary and solidary, direct and immediate and not

Tabugo was inside the classroom when the class undertook the science

conditioned upon the insolvency of or prior recourse against the negligent

experiment although [Jayson] insisted that said [petitioner] left the

employee."[10]

classroom. No evidence, however, was presented to establish that

[petitioner] Tabugo was inside the classroom for the whole duration of the

Under the foregoing circumstances, we are hard pressed to disturb the

experiment. It was unnatural in the ordinary course of events that [Jayson]

findings of the RTC, which the CA affirmed.

was brought to the school clinic for immediate treatment not by [petitioner]
subject teacher Rosalinda Tabugo but by somebody else. The Court is

Nonetheless, petitioners make much of the fact that Tabugo specifically

inclined to believe that [petitioner] subject teacher Tabugo was not inside

instructed her students, including Jayson, at the start of the experiment, not

the classroom at the time the accident happened. The Court is also

to look into the heated test tube before the compound had cooled off.

perplexed why none of the other students (who were eyewitnesses to the

Petitioners would allocate all liability and place all blame for the accident on

incident) testified in Court to corroborate the story of the [petitioners]. The

a twelve (12)-year-old student, herein respondent Jayson.

Court, however, understands that these other students cannot testify for
[Jayson] because [Jayson] is no longer enrolled in said school and

We disagree.

testifying for [Jayson] would incur the ire of school authorities. Estefania
Abdan is equally at fault as the subject adviser or teacher in charge

As found by both lower courts, the proximate cause of Jayson's injury was

because she exercised control and supervision over [petitioner] Tabugo

the concurrent failure of petitioners to prevent the foreseeable mishap that

and the students themselves. It was her obligation to insure that nothing

occurred during the conduct of the science experiment. Petitioners were

would go wrong and that the science experiment would be conducted

negligent by failing to exercise the higher degree of care, caution and

safely and without any harm or injury to the students. [Petitioner] Sr.

foresight incumbent upon the school, its administrators and teachers.

Josephini Ambatali is likewise culpable under the doctrine of command

responsibility because the other individual [petitioners] were under her

Article 218 of the Family Code, in relation to Article 2180 of the Civil Code,

direct control and supervision. The negligent acts of the other individual

bestows special parental authority on the following persons with the

[petitioners] were done within the scope of their assigned tasks.

corresponding obligation, thus:

xxxx

Art. 218. The school, its administrators and teachers, or the individual,
entity or institution engaged in child care shall have special parental

"The defense of due diligence of a good father of a family raised by

authority and responsibility over the minor child while under their
113 | P a g e

Torts 5

supervision, instruction or custody.

Further, there was no evidence that petitioner school allowed the minor
Authority and responsibility shall apply to all authorized activities whether

James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was

inside or outside the premises of the school, entity or institution.

Ched Villanueva, grandson of respondent Vivencio Villanueva, who had

possession and control of the jeep. He was driving the vehicle and he

Art. 2180. The obligation imposed by Article 2176 is demandable not only

allowed James Daniel II, a minor, to drive the jeep at the time of the

for one's own acts or omissions, but also for those of persons for whom

accident.

one is responsible.
Hence, liability for the accident, whether caused by the negligence of the
xxxx

minor driver or mechanical detachment of the steering wheel guide of the

jeep, must be pinned on the minor's parents primarily. The negligence of

Lastly, teachers or heads of establishments of arts and trades shall be

petitioner St. Mary's Academy was only a remote cause of the accident.

liable for damages caused by their pupils and students or apprentices, so

Between the remote cause and the injury, there intervened the negligence

long as they remain in their custody.

of the minor's parents or the detachment of the steering wheel guide of the
jeep.[11]

Petitioners' negligence and failure to exercise the requisite degree of care

and caution is demonstrated by the following:

In marked contrast, both the lower courts similarly concluded that the
mishap which happened during the science experiment was foreseeable by

1. Petitioner school did not take affirmative steps to avert damage and

the school, its officials and teachers. This neglect in preventing a

injury to its students although it had full information on the nature of

foreseeable injury and damage equates to neglect in exercising the utmost

dangerous science experiments conducted by the students during class;

degree of diligence required of schools, its administrators and teachers,

and, ultimately, was the proximate cause of the damage and injury to

2. Petitioner school did not install safety measures to protect the students

Jayson. As we have held in St. Mary's, "for petitioner [St. Mary's Academy]

who conduct experiments in class;

to be liable, there must be a finding that the act or omission considered as

negligent was the proximate cause of the injury caused because the

3. Petitioner school did not provide protective gears and devices,

negligence must have a causal connection to the accident."[12]

specifically goggles, to shield students from expected risks and dangers;

and

As regards the contributory negligence of Jayson, we see no need to

disturb the lower courts' identical rulings thereon:

4. Petitioner Tabugo was not inside the classroom the whole time her class
conducted the experiment, specifically, when the accident involving Jayson

As earlier discussed, the proximate cause of [Jayson's] injury was the

occurred. In any event, the size of the class--fifty (50) students--

explosion of the heated compound independent of any efficient intervening

conducting the experiment is difficult to monitor.

cause. The negligence on the part of [petitioner] Tabugo in not making sure
that the science experiment was correctly conducted was the proximate

Moreover, petitioners cannot simply deflect their negligence and liability by

cause or reason why the heated compound exploded and injured not only

insisting that petitioner Tabugo gave specific instructions to her science

[Jayson] but his classmates as well. However, [Jayson] is partly

class not to look directly into the heated compound. Neither does our ruling

responsible for his own injury, hence, he should not be entitled to recover

in St. Mary's preclude their liability in this case.

damages in full but must likewise bear the consequences of his own
negligence. [Petitioners], therefore, should be held liable only for the

Unfortunately for petitioners, St. Mary's is not in point. In that case,

damages actually caused by their negligence.[13]

respondents thereat admitted the documentary exhibits establishing that

the cause of the accident was a mechanical defect and not the

Lastly, given our foregoing ruling, we likewise affirm the lower courts'

recklessness of the minor, James Daniel II, in driving the jeep. We held,

award of actual and moral damages, and grant of attorney's fees. The

thus:

denial of petitioners' counterclaim is also in order.

Significantly, respondents did not present any evidence to show that the

WHEREFORE, the petition is DENIED. The Decision of the Court of

proximate cause of the accident was the negligence of the school

Appeals in CA-G.R. CV No. 68367 is AFFIRMED. Costs against

authorities, or the reckless driving of James Daniel II. x x x.

petitioners.
114 | P a g e

Torts 5

SO ORDERED.

115 | P a g e

Torts 5

PHILIPPINE RABBIT BUS LINES, INC. AND FELIX PANGALANGAN,

xxx

xxx

xxx

PLAINTIFFS-APPELLANTS, VS. PHIL-AMERICAN FORWARDERS,

INC., ARCHIMEDES J. BALINGIT AND FERNANDO PINEDA,

"The owners and managers of an establishment or enterprise are likewise

DEFENDANTS-APPELLEES.

responsible for damages caused by their employees in the service of the

branches in which the latter are employed or on the occasion of their

DECISION

AQUINO, J.:

functions.

"Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even

Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure

though the former are not engaged in any business or industry.

questions of law from the order of the Court of First Instance of Tarlac,
dismissing their complaint against Archimedes J. Balingit.

xxx

xxx

xxx

The dismissal was based on the ground that Balingit as the manager of

"The responsibility treated of in this article shall cease when the persons

Phil-American Forwarders, Inc., which together with Fernando Pineda and

herein mentioned prove that they observed all the diligence of a good

Balingit, was sued for damages in an action based on quasi-delict or culpa

father of a family to prevent damage. (1903a)"

aquiliana, is not the manager of an establishment contemplated in article

The novel and unprecedented legal issue in this appeal is whether the

2180 of the Civil Code (Civil Case No. 3865).

terms "employers" and "owners and managers of an establishment or

enterprise" (dueos o directores de un establicimiento o empresa) used in

In the complaint for damages filed by the bus company and Pangalangan

article 2180 of the Civil Code, formerly article 1903 of the old Code,

against Phil-American Forwarders, Inc., Balingit and Pineda, it was alleged

embrace the manager of a corporation owning a truck, the reckless

that on November 24, 1962, Pineda drove recklessly a freight truck, owned

operation of which allegedly resulted in the vehicular accident from which

by Phil-American Forwarders, Inc., along the national highway at Sto.

the damage arose.

Tomas, Pampanga. The truck bumped the bus driven by Pangalangan,

which was owned by Philippine Rabbit Bus Lines, Inc. As a result of the

We are of the opinion that those terms do not include the manager of a

bumping, Pangalangan suffered injuries and the bus was damaged and

corporation. It may be gathered from the context of article 2180 that the

could not be used for seventy-nine days, thus depriving the company of

term "manager" ("director" in the Spanish version) is used in the sense of

earnings amounting to P8,665.51. Balingit was the manager of Phil-

"employer".

American Forwarders, Inc.

Hence, under the allegations of the complaint, no tortious or quasi-delictual
Among the defenses interposed by the defendants in their answer was that

liability can be fastened on Balingit as manager of Phil-American

Balingit was not Pineda's employer.

Forwarders, Inc., in connection with the vehicular accident already

mentioned because he himself may be regarded as an employee or

Balingit moved that the complaint against him be dismissed on the ground

dependiente of his employer, Phil-American Forwarders, Inc.

that the bus company and the bus driver had no cause of action against
him. As already stated, the lower court dismissed the action as to Balingit.

Thus, it was held "que es dependiente, a los efectos de la responsabilidad

The bus company and its driver appealed.

subsidiaria establecida en el num. 3.o del (art.) 1903, el director de un

periodico explotado por una sociedad, porque cualquiera que sea su

The Civil Code provides:

jerarquia, y aunque lleve la direccion de determinadas convicciones

"ART. 2176. Whoever by act or omission causes damage to another, there politicas, no por eso deja de estar subordinado a la superior autoridad de
being fault or negligence, is obliged to pay for the damage done. Such

la Empresa" (Decision of Spanish Supreme Court dated December 6, 1912

fault or negligence, if there is no pre-existing contractual relation between

cited in 12 Manresa, Codigo Civil Espaol, 5th Ed. 662; 1913 Enciclopedia

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

Juridica Espaola 992).

Chapter.
The bus company and its driver, in their appellants' brief, injected a new
"ART. 2180. The obligation imposed by article 2176 is demandable not

factual issue which was not alleged in their complaint. They argue that

only for one's own acts or omissions, but also for those of persons for

Phil-American Forwarders, Inc. is merely a business conduit of Balingit

whom one is responsible.

because out of its capital stock with a par value of P41,200, Balingit and
116 | P a g e

Torts 5

his wife had subscribed P40,000 and they paid P10,000 on their
subscription, while the other incorporators, namely, Rodolfo Limjuco,
Ponciano Caparas and Rafael Suntay paid P250.25 and P25, respectively.

That argument implies that the veil of corporate fiction should be pierced
and that Phil-American Forwarders, Inc. and Balingit and his wife should be
treated as one and the same civil personality.

We cannot countenance that argument in this appeal. It was not raised in

the lower court. The case has to be decided on the basis of the pleadings
filed in the trial court where it was assumed that Phil-American Forwarders,
Inc. has a personality separate and distinct from that of the Balingit
spouses.

The legal issue, which the plaintiffs-appellants can ventilate in this appeal,
is one which was raised in the lower court and which is within the issues
framed by the parties (Sec. 18, Rule 46, Rules of Court).

When a party deliberately adopts a certain theory and the case is decided
upon that theory in the court below, he will not be permitted to change his
theory on appeal because, to permit him to do so, would be unfair to the
adverse party (2 Moran's Comments on the Rules of Court, 1970 Ed. p.
505).

WHEREFORE, the lower court's order of dismissal is affirmed. Costs

against the plaintiffs-appellants.

SO ORDERED.

117 | P a g e

Torts 5

CASTILEX INDUSTRIAL CORPORATION, PETITIONER, VS. VICENTE

VASQUEZ, JR. AND LUISA SO VASQUEZ, AND CEBU DOCTORS
HOSPITAL, INC., RESPONDENTS.

expenses; P50,000.00 as moral damages; P10,000.00 as attorneys fees;

and P778,752.00 for loss of earning capacity; and (2) Cebu Doctors
Hospital, the sum of P50,927.83 for unpaid medical and hospital bills at 3%
monthly interest from 27 July 1989 until fully paid, plus the costs of

DECISION

litigation.[2]

DAVIDE, JR., C.J.:

CASTILEX and ABAD separately appealed the decision.

The pivotal issue in this petition is whether an employer may be held

In its decision[3] of 21 May 1997, the Court of Appeals affirmed the ruling of

vicariously liable for the death resulting from the negligent operation by a

the trial court holding ABAD and CASTILEX liable but held that the liability

managerial employee of a company-issued vehicle.

of the latter is "only vicarious and not solidary" with the former. It reduced
the award of damages representing loss of earning capacity from

The antecedents, as succinctly summarized by the Court of Appeals, are

P778,752.00 to P214,156.80; and the interest on the hospital and medical

as follows:

bills, from 3% per month to 12% per annum from 5 September 1988 until

On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So

fully paid.

Vasquez, was driving a Honda motorcycle around Fuente Osmea

Rotunda. He was traveling counter-clockwise, (the normal flow of traffic in

Upon CASTILEXs motion for reconsideration, the Court of Appeals

a rotunda) but without any protective helmet or goggles. He was also only

modified its decision by (1) reducing the award of moral damages from

carrying a Students Permit to Drive at the time. Upon the other hand,

P50,000 to P30,000 in view of the deceaseds contributory negligence; (b)

Benjamin Abad [was a] manager of Appellant Castilex Industrial

deleting the award of attorneys fees for lack of evidence; and (c) reducing

Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no.

the interest on hospital and medical bills to 6% per annum from 5

GBW-794. On the same date and time, Abad drove the said company car

September 1988 until fully paid.[4]

out of a parking lot but instead of going around the Osmea rotunda he
made a short cut against [the] flow of the traffic in proceeding to his route

Hence, CASTILEX filed the instant petition contending that the Court of

to General Maxilom St. or to Belvic St.

Appeals erred in (1) applying to the case the fifth paragraph of Article 2180
of the Civil Code, instead of the fourth paragraph thereof; (2) that as a

In the process, the motorcycle of Vasquez and the pick-up of Abad collided

managerial employee, ABAD was deemed to have been always acting

with each other causing severe injuries to the former. Abad stopped his

within the scope of his assigned task even outside office hours because he

vehicle and brought Vasquez to the Southern Islands Hospital and later to

was using a vehicle issued to him by petitioner; and (3) ruling that

the Cebu Doctors Hospital.

petitioner had the burden to prove that the employee was not acting within
the scope of his assigned task.

On September 5, 1988, Vasquez died at the Cebu Doctors Hospital. It was

there that Abad signed an acknowledgment of Responsible Party (Exhibit

Jose Benjamin ABAD merely adopted the statement of facts of petitioner

K) wherein he agreed to pay whatever hospital bills, professional fees and

which holds fast on the theory of negligence on the part of the deceased.

other incidental charges Vasquez may incur.

On the other hand, respondents Spouses Vasquez argue that their sons
After the police authorities had conducted the investigation of the accident,

death was caused by the negligence of petitioners employee who was

a Criminal Case was filed against Abad but which was subsequently

driving a vehicle issued by petitioner and who was on his way home from

dismissed for failure to prosecute. So, the present action for damages was

overtime work for petitioner; and that petitioner is thus liable for the

commenced by Vicente Vasquez, Jr. and Luisa So Vasquez, parents of the

resulting injury and subsequent death of their son on the basis of the fifth

deceased Romeo So Vasquez, against Jose Benjamin Abad and Castilex

paragraph of Article 2180. Even if the fourth paragraph of Article 2180 were

Industrial Corporation. In the same action, Cebu Doctors Hospital

applied, petitioner cannot escape liability therefor. They moreover argue

intervened to collect unpaid balance for the medical expense given to

that the Court of Appeals erred in reducing the amount of compensatory

Romeo So Vasquez.

[1]

The trial court ruled in favor of private respondents Vicente and Luisa

damages when the award made by the trial court was borne both by
evidence adduced during the trial regarding deceaseds wages and by

Vasquez and ordered Jose Benjamin Abad (hereafter ABAD) and petitioner jurisprudence on life expectancy. Moreover, they point out that the petition
Castilex Industrial Corporation (hereafter CASTILEX) to pay jointly and

is procedurally not acceptable on the following grounds: (1) lack of an

solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial

explanation for serving the petition upon the Court of Appeals by registered
118 | P a g e

Torts 5

mail, as required under Section 11, Rule 13 of the Rules of Civil Procedure;
and (2) lack of a statement of the dates of the expiration of the original

The negligence of ABAD is not an issue at this instance. Petitioner

reglementary period and of the filing of the motion for extension of time to

CASTILEX presumes said negligence but claims that it is not vicariously

file a petition for review.

liable for the injuries and subsequent death caused by ABAD.

For its part, respondent Cebu Doctors Hospital maintains that petitioner

Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code

CASTILEX is indeed vicariously liable for the injuries and subsequent

should only apply to instances where the employer is not engaged in

death of Romeo Vasquez caused by ABAD, who was on his way home

business or industry. Since it is engaged in the business of manufacturing

from taking snacks after doing overtime work for petitioner. Although the

and selling furniture it is therefore not covered by said provision. Instead,

incident occurred when ABAD was not working anymore "the inescapable

the fourth paragraph should apply.

fact remains that said employee would not have been situated at such time
and place had he not been required by petitioner to do overtime work."

Petitioners interpretation of the fifth paragraph is not accurate. The phrase

Moreover, since petitioner adopted the evidence adduced by ABAD, it

"even though the former are not engaged in any business or industry"

cannot, as the latters employer, inveigle itself from the ambit of liability,

found in the fifth paragraph should be interpreted to mean that it is not

and is thus estopped by the records of the case, which it failed to refute.

necessary for the employer to be engaged in any business or industry to

be liable for the negligence of his employee who is acting within the scope

We shall first address the issue raised by the private respondents

of his assigned task.[5]

regarding some alleged procedural lapses in the petition.

A distinction must be made between the two provisions to determine what
Private respondents contention of petitioners violation of Section 11 of

is applicable. Both provisions apply to employers: the fourth paragraph, to

Rule 13 and Section 4 of Rule 45 of the 1997 Rules of Civil Procedure

owners and managers of an establishment or enterprise; and the fifth

holds no water.

paragraph, to employers in general, whether or not engaged in any

Section 11 of Rule 13 provides:

business or industry. The fourth paragraph covers negligent acts of

employees committed either in the service of the branches or on the

SEC. 11. Priorities in modes of service and filing. -- Whenever practicable,

occasion of their functions, while the fifth paragraph encompasses

the service and filing of pleadings and other papers shall be done

negligent acts of employees acting within the scope of their assigned task.

personally. Except with respect to papers emanating from the court, a

The latter is an expansion of the former in both employer coverage and

resort to other modes must be accompanied by a written explanation why

acts included. Negligent acts of employees, whether or not the employer is

the service or filing was not done personally. A violation of this Rule may

engaged in a business or industry, are covered so long as they were acting

be cause to consider the paper as not filed.

within the scope of their assigned task, even though committed neither in

The explanation why service of a copy of the petition upon the Court of

the service of the branches nor on the occasion of their functions. For,

Appeals was done by registered mail is found on Page 28 of the petition.

admittedly, employees oftentimes wear different hats. They perform

Thus, there has been compliance with the aforequoted provision.

functions which are beyond their office, title or designation but which,
nevertheless, are still within the call of duty.

As regards the allegation of violation of the material data rule under

Section 4 of Rule 45, the same is unfounded. The material dates required

This court has applied the fifth paragraph to cases where the employer was

to be stated in the petition are the following: (1) the date of receipt of the

engaged in a business or industry such as truck operators [6] and banks.[7]

judgment or final order or resolution subject of the petition; (2) the date of

The Court of Appeals cannot, therefore, be faulted in applying the said

filing of a motion for new trial or reconsideration, if any; and (3) the date of

paragraph of Article 2180 of the Civil Code to this case.

receipt of the notice of the denial of the motion. Contrary to private

respondents claim, the petition need not indicate the dates of the

Under the fifth paragraph of Article 2180, whether or not engaged in any

expiration of the original reglementary period and the filing of a motion for

business or industry, an employer is liable for the torts committed by

extension of time to file the petition. At any rate, aside from the material

employees within the scope of his assigned tasks. But it is necessary to

dates required under Section 4 of Rule 45, petitioner CASTILEX also

establish the employer-employee relationship; once this is done, the

stated in the first page of the petition the date it filed the motion for

plaintiff must show, to hold the employer liable, that the employee was

extension of time to file the petition.

acting within the scope of his assigned task when the tort complained of
was committed. It is only then that the employer may find it necessary to

Now on the merits of the case.

interpose the defense of due diligence in the selection and supervision of

119 | P a g e

Torts 5

the employee.[8]

had the occasion to hold that acts done within the scope of the employees
assigned tasks includes "any act done by an employee in furtherance of

It is undisputed that ABAD was a Production Manager of petitioner

the interests of the employer or for the account of the employer at the time

CASTILEX at the time of the tort occurrence. As to whether he was acting

of the infliction of the injury or damages."

within the scope of his assigned task is a question of fact, which the court a
quo and the Court of Appeals resolved in the affirmative.

The court a quo and the Court of Appeals were one in holding that the
driving by a manager of a company-issued vehicle is within the scope of

Well-entrenched in our jurisprudence is the rule that the factual findings of

his assigned tasks regardless of the time and circumstances.

the Court of Appeals are entitled to great respect, and even finality at
times. This rule is, however, subject to exceptions such as when the

We do not agree. The mere fact that ABAD was using a service vehicle at

conclusion is grounded on speculations, surmises, or conjectures.[9] Such

the time of the injurious incident is not of itself sufficient to charge petitioner

exception obtain in the present case to warrant review by this Court of the

with liability for the negligent operation of said vehicle unless it appears

finding of the Court of Appeals that since ABAD was driving petitioners

that he was operating the vehicle within the course or scope of his

vehicle he was acting within the scope of his duties as a manager.

employment.

Before we pass upon the issue of whether ABAD was performing acts

The following are principles in American Jurisprudence on the employers

within the range of his employment, we shall first take up the other reason

liability for the injuries inflicted by the negligence of an employee in the use

invoked by the Court of Appeals in holding petitioner CASTILEX vicariously

of an employers motor vehicle:

liable for ABADs negligence, i.e., that the petitioner did not present
evidence that ABAD was not acting within the scope of his assigned tasks

I. Operation of Employers Motor Vehicle in Going to or from Meals

at the time of the motor vehicle mishap. Contrary to the ruling of the Court
of Appeals, it was not incumbent upon the petitioner to prove the same. It

It has been held that an employee who uses his employers vehicle in

was enough for petitioner CASTILEX to deny that ABAD was acting within

going from his work to a place where he intends to eat or in returning to

the scope of his duties; petitioner was not under obligation to prove this

work from a meal is not ordinarily acting within the scope of his

negative averment. Ei incumbit probatio qui dicit, non qui negat (He who

employment in the absence of evidence of some special business benefit

asserts, not he who denies, must prove). The Court has consistently

to the employer. Evidence that by using the employers vehicle to go to and

applied the ancient rule that if the plaintiff, upon whom rests the burden of

from meals, an employee is enabled to reduce his time-off and so devote

proving his cause of action, fails to show in a satisfactory manner facts

more time to the performance of his duties supports the finding that an

which he bases his claim, the defendant is under no obligation to prove his

employee is acting within the scope of his employment while so driving the

exception or defense.

[10]

vehicle.[13]

Now on the issue of whether the private respondents have sufficiently

II. Operation of Employers Vehicle in Going to or from Work

established that ABAD was acting within the scope of his assigned tasks.
In the same vein, traveling to and from the place of work is ordinarily a
ABAD, who was presented as a hostile witness, testified that at the time of

personal problem or concern of the employee, and not a part of his

the incident, he was driving a company-issued vehicle, registered under

services to his employer. Hence, in the absence of some special benefit to

the name of petitioner. He was then leaving the restaurant where he had

the employer other than the mere performance of the services available at

some snacks and had a chat with his friends after having done overtime

the place where he is needed, the employee is not acting within the scope

work for the petitioner.

of his employment even though he uses his employers motor vehicle. [14]

No absolutely hard and fast rule can be stated which will furnish the

The employer may, however, be liable where he derives some special

complete answer to the problem of whether at a given moment, an

benefit from having the employee drive home in the employers vehicle as

employee is engaged in his employers business in the operation of a

when the employer benefits from having the employee at work earlier and,

motor vehicle, so as to fix liability upon the employer because of the

presumably, spending more time at his actual duties. Where the

employees action or inaction; but rather, the result varies with each state

employees duties require him to circulate in a general area with no fixed

of facts.

[11]

place or hours of work, or to go to and from his home to various outside

places of work, and his employer furnishes him with a vehicle to use in his

In Filamer Christian Institute v. Intermediate Appellate Court,

[12]

this Court

work, the courts have frequently applied what has been called the "special
120 | P a g e

Torts 5

errand" or "roving commission" rule, under which it can be found that the

To the mind of this Court, ABAD was engaged in affairs of his own or was

employee continues in the service of his employer until he actually reaches

carrying out a personal purpose not in line with his duties at the time he

home. However, even if the employee be deemed to be acting within the

figured in a vehicular accident. It was then about 2:00 a.m. of 28 August

scope of his employment in going to or from work in his employers vehicle,

1988, way beyond the normal working hours. ABADs working day had

the employer is not liable for his negligence where at the time of the

ended; his overtime work had already been completed. His being at a

accident, the employee has left the direct route to his work or back home

place which, as petitioner put it, was known as a "haven for prostitutes,

and is pursuing a personal errand of his own.

pimps, and drug pushers and addicts," had no connection to petitioners

business; neither had it any relation to his duties as a manager. Rather,

III. Use of Employers Vehicle Outside Regular Working Hours

using his service vehicle even for personal purposes was a form of a fringe
benefit or one of the perks attached to his position.

An employer who loans his motor vehicle to an employee for the latters
personal use outside of regular working hours is generally not liable for the

Since there is paucity of evidence that ABAD was acting within the scope

employees negligent operation of the vehicle during the period of

of the functions entrusted to him, petitioner CASTILEX had no duty to show

permissive use, even where the employer contemplates that a regularly

that it exercised the diligence of a good father of a family in providing

assigned motor vehicle will be used by the employee for personal as well

ABAD with a service vehicle. Thus, justice and equity require that petitioner

as business purposes and there is some incidental benefit to the employer.

be relieved of vicarious liability for the consequences of the negligence of

Even where the employees personal purpose in using the vehicle has

ABAD in driving its vehicle.[20]

been accomplished and he has started the return trip to his house where
the vehicle is normally kept, it has been held that he has not resumed his

WHEREFORE, the petition is GRANTED, and the appealed decision and

employment, and the employer is not liable for the employees negligent

resolution of the Court of Appeals is AFFIRMED with the modification that

[15]

operation of the vehicle during the return trip.

petitioner Castilex Industrial Corporation be absolved of any liability for the

damages caused by its employee, Jose Benjamin Abad.

The foregoing principles and jurisprudence are applicable in our jurisdiction

albeit based on the doctrine of respondeat superior, not on the principle of

SO ORDERED.

bonus pater familias as in ours. Whether the fault or negligence of the

employee is conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the presumption juris tantum of
negligence on the part of the employer as in ours, it is indispensable that
the employee was acting in his employers business or within the scope of
his assigned task.[16]

In the case at bar, it is undisputed that ABAD did some overtime work at
the petitioners office, which was located in Cabangcalan, Mandaue City.
Thereafter, he went to Goldies Restaurant in Fuente Osmea, Cebu City,
which is about seven kilometers away from petitioners place of
business.[17] A witness for the private respondents, a sidewalk vendor,
testified that Fuente Osmea is a "lively place" even at dawn because
Goldies Restaurant and Back Street were still open and people were
drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the
place.[18]

At the Goldies Restaurant, ABAD took some snacks and had a chat with
friends. It was when ABAD was leaving the restaurant that the incident in
question occurred. That same witness for the private respondents testified
that at the time of the vehicular accident, ABAD was with a woman in his
car, who then shouted: "Daddy, Daddy!"[19] This woman could not have
been ABADs daughter, for ABAD was only 29 years old at the time.

121 | P a g e

Torts 5

SPS. BUENAVENTURA JAYME AND ROSARIO JAYME, PETITIONERS, days after the accident.[10]
VS. RODRIGO APOSTOL, FIDEL LOZANO, ERNESTO SIMBULAN,
MAYOR FERNANDO Q. MIGUEL, MUNICIPALITY OF KORONADAL

Petitioners spouses Buenaventura and Rosario Jayme, the parents of

(NOW CITY OF KORONADAL), PROVINCE OF SOUTH COTABATO,

Marvin, filed a complaint for damages with the RTC against respondents.[11]

REPRESENTED BY THE MUNICIPAL TREASURER AND/OR

In their complaint, they prayed that all respondents be held solidarily liable

MUNICIPAL MAYOR FERNANDO Q. MIGUEL, AND THE FIRST

for their loss. They pointed out that that proximate cause of Marvin's death

INTEGRATED BONDING AND INSURANCE COMPANY, INC.,

was Lozano's negligent and reckless operation of the vehicle. They prayed

RESPONDENTS.

for actual, moral, and exemplary damages, attorney's fees, and litigation
expenses.

DECISION
In their respective Answers, all respondents denied liability for Marvin's
REYES, R.T., J.:

death. Apostol and Simbulan averred that Lozano took the pick-up truck
without their consent. Likewise, Miguel and Lozano pointed out that

MAY a municipal mayor be held solidarily liable for the negligent acts of the
driver assigned to him, which resulted in the death of a minor pedestrian?

Marvin's sudden sprint across the highway made it impossible to avoid the
accident. Yet, Miguel denied being on board the vehicle when it hit Marvin.
The Municipality of Koronadal adopted the answer of Lozano and Miguel.

Challenged in this petition for review on certiorari is the Decision[1] of the

Court of Appeals (CA) which reversed and set aside the decision of the
Regional Trial Court (RTC), Polomolok, Cotabato City, Branch 39, insofar
as defendant Mayor Fernando Q. Miguel is concerned. The CA absolved

As for First Integrated Bonding and Insurance Company, Inc., the vehicle
insurer, it insisted that its liability is contributory and is only conditioned on
the right of the insured. Since the insured did not file a claim within the
prescribed period, any cause of action against it had prescribed.

Mayor Miguel from any liability since it was not he, but the Municipality of
Koronadal, that was the employer of the negligent driver.

The Facts

RTC Disposition

On January 25, 1999, the RTC rendered judgment in favor of spouses

Jayme, the dispositive portion of which reads:

On February 5, 1989, Mayor Miguel of Koronadal, South Cotabato was on

board the Isuzu pick-up truck driven by Fidel Lozano, an employee of the
Municipality of Koronadal.[2] The pick-up truck was registered under the
name of Rodrigo Apostol, but it was then in the possession of Ernesto
Simbulan.[3] Lozano borrowed the pick-up truck from Simbulan to bring
Miguel to Buayan Airport at General Santos City to catch his Manila flight.[4]

WHEREFORE, in view of the foregoing, the defendant Municipality of

Koronadal cannot be held liable for the damages incurred by other
defendant (sic) being an agency of the State performing a (sic)
governmental functions. The same with defendant Hermogenes Simbulan,
not being the owner of the subject vehicle, he is absolved of any liability.
The complaint against defendant First Integrated Bonding Insurance
Company, Inc. is hereby ordered dismissed there being no cause of action

The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then

against said insurance company.

crossing the National Highway in Poblacion, Polomolok, South Cotabato. [5]

The intensity of the collision sent Marvin some fifty (50) meters away from
the point of impact, a clear indication that Lozano was driving at a very high
speed at the time of the accident.[6]

Marvin sustained severe head injuries with subdural hematoma and

However, defendants Fidel Lozano, Rodrigo Apostol, and Mayor Fernando

Miguel of Koronadal, South Cotabato, are hereby ordered jointly and
severally to pay the plaintiff (sic) the following sums:

1.

One Hundred Seventy Three Thousand One

diffused cerebral contusion.[7] He was initially treated at the Howard

Hundred One and Forty Centavos (P173,101.40)

Hubbard Memorial Hospital.[8] Due to the seriousness of his injuries, he

Pesos as actual damages with legal interest of 12%

was airlifted to the Ricardo Limso Medical Center in Davao City for more

per annum computed from February 11, 1989 until

[9]

intensive treatment. Despite medical attention, Marvin expired six (6)

fully paid;
122 | P a g e

Torts 5

2.

3.

Fifty Thousand (P50,000.00) Pesos as moral

incurred by passengers or third persons as a consequence of injuries or

damages;

death sustained in the operation of the vehicle.

Twenty Thousand (P20,000.00) Pesos as exemplary

Issues

damages;
4.

5.

Twenty Thousand (P20,000.00) Pesos as Attorney's

fees;

The spouses Jayme have resorted to the present recourse and assign to

Fifty Thousand (P50,000.00) Pesos for the death of

the CA the following errors:

I.

Marvin Jayme;
6.

7.

Three Thousand (P3,000.00) as litigation expenses;

and

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

To pay the cost of this suit.

MAYOR FERNANDO MIGUEL CANNOT BE HELD LIABLE FOR THE

DEATH OF MARVIN JAYME WHICH CONCLUSION IS CONTRARY TO

[12]

SO ORDERED.

LAW AND THE SETTLED PRONOUNCEMENTS OF THIS HONORABLE

Dissatisfied with the RTC ruling, Mayor Miguel interposed an appeal to the

TRIBUNAL;

CA.
II.
CA Disposition
THE FINDINGS OF FACTS OF THE HONORABLE COURT OF APPEALS
In his appeal, Mayor Miguel contended that the RTC erred in ruling that he

ARE CONTRARY TO THE FINDINGS OF THE TRIAL COURT AND ARE

was Lozano's employer and, hence, solidarily liable for the latter's

CONTRADICTED BY THE EVIDENCE ON RECORD; MOREOVER, THE

negligent act. Records showed that the Municipality of Koronadal was the

CONCLUSIONS DRAWN BY THE HONORABLE COURT OF APPEALS

driver's true and lawful employer. Mayor Miguel also denied that he did not

ARE ALL BASED ON CONJECTURES AND SURMISES AND AGAINST

exercise due care and diligence in the supervision of Lozano. The incident,

ACCEPTED COURSE OF JUDICIAL PROCEEDINGS WHICH

although unfortunate, was unexpected and cannot be attributed to him.

URGENTLY CALL FOR AN EXERCISE OF THIS HONORABLE COURT'S

SUPERVISION.[15]

On October 22, 2003, the CA granted the appeal, disposing as follows:

Our Ruling

WHEREFORE, the Decision appealed from is REVERSED and SET

ASIDE, insofar as defendant-appellant Mayor Fernando Q. Miguel is

The doctrine of vicarious liability or imputed liability finds no

concerned, and the complaint against him is DISMISSED.

application in the present case.

IT IS SO ORDERED.[13]

Spouses Jayme contend, inter alia, that vicarious liability attaches to Mayor

The CA held that Mayor Miguel should not be held liable for damages for

Miguel. He was not a mere passenger, but instead one who had direct

the death of Marvin Jayme. Said the appellate court:

control and supervision over Lozano during the time of the accident.

Moreover, plaintiffs-appellees admitted that Mayor Miguel was not the

According to petitioners, the element of direct control is not negated by the

employer of Lozano. Thus, paragraph 9 of the complaint alleged that the

fact that Lozano's employer was the Municipality of Koronadal. Mayor

Municipality of Koronadal was the employer of both Mayor Miguel and Miguel, being Lozano's superior, still had control over the manner the
Lozano. Not being the employer of Lozano, Mayor Miguel could not thus

vehicle was operated.

be held liable for the damages caused by the former. Mayor Miguel was a
mere passenger in the Isuzu pick-up at the time of the accident.[14]

Article 2180[16] of the Civil Code provides that a person is not only liable for

(Emphasis supplied)

one's own quasi-delictual acts, but also for those persons for whom one is

The CA also reiterated the settled rule that it is the registered owner of a

responsible for. This liability is popularly known as vicarious or imputed

vehicle who is jointly and severally liable with the driver for damages

liability. To sustain claims against employers for the acts of their

employees, the following requisites must be established: (1) That the
123 | P a g e

Torts 5

employee was chosen by the employer personally or through another; (2)

during the time of the accident. They, however, failed to buttress this claim.

That the service to be rendered in accordance with orders which the

employer has the authority to give at all times; and (3) That the illicit act of

Even assuming arguendo that Mayor Miguel had authority to give

the employee was on the occasion or by reason of the functions entrusted

instructions or directions to Lozano, he still can not be held liable. In

to him.

[17]

Benson v. Sorrell,[23] the New England Supreme Court ruled that mere
giving of directions to the driver does not establish that the passenger has

Significantly, to make the employee liable under paragraphs 5 and 6 of

control over the vehicle. Neither does it render one the employer of the

Article 2180, it must be established that the injurious or tortuous act was

driver. This Court, in Soliman, Jr. v. Tuazon,[24] ruled in a similar vein, to

committed at the time the employee was performing his functions. [18]

wit:
x x x The fact that a client company may give instructions or directions to

Furthermore, the employer-employee relationship cannot be assumed. It is

the security guards assigned to it, does not, by itself, render the client

incumbent upon the plaintiff to prove the relationship by preponderant

responsible as an employer of the security guards concerned and liable

[19]

evidence. In Belen v. Belen,

this Court ruled that it was enough for

for their wrongful acts and omissions. Those instructions or directions are

defendant to deny an alleged employment relationship. The defendant is

ordinarily no more than requests commonly envisaged in the contract for

under no obligation to prove the negative averment. This Court said:

services entered into with the security agency. x x x[25] (Emphasis supplied)

It is an old and well-settled rule of the courts that the burden of proving the

Significantly, no negligence may be imputed against a fellow employee

action is upon the plaintiff, and that if he fails satisfactorily to show the facts although the person may have the right to control the manner of the
upon which he bases his claim, the defendant is under no obligation to

vehicle's operation.[26] In the absence of an employer-employee

prove his exceptions. This rue is in harmony with the provisions of Section

relationship establishing vicarious liability, the driver's negligence should

297 of the Code of Civil Procedure holding that each party must prove his

not be attributed to a fellow employee who only happens to be an occupant

own affirmative allegations, etc.

[20]

of the vehicle.[27] Whatever right of control the occupant may have over the

In resolving the present controversy, it is imperative to find out if Mayor

driver is not sufficient by itself to justify an application of the doctrine of

Miguel is, indeed, the employer of Lozano and therefore liable for the

vicarious liability. Handley v. Lombardi[28] is instructive on this exception to

negligent acts of the latter. To determine the existence of an employment

the rule on vicarious liability:

relationship, We rely on the four-fold test. This involves: (1) the employer's

Plaintiff was not the master or principal of the driver of the truck, but only

power of selection; (2) payment of wages or other remuneration; (3) the

an intermediate and superior employee or agent. This being so, the

employer's right to control the method of doing the work; and (4) the

doctrine of respondeat superior or qui facit per alium is not properly

employer's right of suspension or dismissal.

[21]

applicable to him. His power to direct and control the driver was not as
master, but only by virtue of the fact that they were both employed by

Applying the foregoing test, the CA correctly held that it was the

Kruse, and the further fact that as Kruse's agent he was delegated Kruse's

Municipality of Koronadal which was the lawful employer of Lozano at the

authority over the driver. x x x

time of the accident. It is uncontested that Lozano was employed as a

driver by the municipality. That he was subsequently assigned to Mayor

In the case of actionable negligence, the rule is well settled both in this

Miguel during the time of the accident is of no moment. This Court has, on

state and elsewhere that the negligence of a subordinate employee or

several occasions, held that an employer-employee relationship still exists

subagent is not to be imputed to a superior employee or agent, but only to

even if the employee was loaned by the employer to another person or

the master or principal. (Hilton v. Oliver, 204 Cal. 535 [61 A. L. R. 297, 269

entity because control over the employee subsists.

[22]

In the case under

Pac. 425]; Guild v. Brown, 115 Cal. App. 374 [1 Pac. (2d) 528]; Ellis v.

review, the Municipality of Koronadal remains to be Lozano's employer

Southern Ry. Co., 72 S. C. 464 [2 L. R. A. (N. S.) 378, 52 S. E. 228];

notwithstanding Lozano's assignment to Mayor Miguel.

Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141 [108 Pac. 588]; 2
Cor. Jur., p. 829; and see the elaborate note in 61 A. L. R. 277, and

Spouses Jayme argued that Mayor Miguel had at least supervision and

particularly that part commencing at p. 290.) We can see no logical reason

control over Lozano and how the latter operated or drove the Isuzu pick-up

124 | P a g e

Torts 5

for drawing any distinction in this regard between actionable negligence

[29]

Settled is the rule that the registered owner of a vehicle is jointly and

and contributory negligence. x x x

severally liable with the driver for damages incurred by passengers and

The rule was reiterated in Bryant v. Pacific Elec. Ry. Co.[30] and again in

third persons as a consequence of injuries or death sustained in the

Sichterman v. Hollingshead Co.

[31]

operation of said vehicles. Regardless of who the actual owner of the

vehicle is, the operator of record continues to be the operator of the vehicle

In Swanson v. McQuown,

[32]

a case involving a military officer who

as regards the public and third persons, and as such is directly and

happened to be riding in a car driven by a subordinate later involved in an

primarily responsible for the consequences incident (sic) to its operation x x

accident, the Colorado Supreme Court adhered to the general rule that a

x.[39]

public official is not liable for the wrongful acts of his subordinates on a

The accidental death of Marvin Jayme is a tragic loss for his parents.

vicarious basis since the relationship is not a true master-servant

However, justice demands that only those liable under our laws be held

[33]

situation.

The court went on to rule that the only exception is when they

cooperate in the act complained of, or direct or encourage it.

[34]

accountable for Marvin's demise. Justice can not sway in favor of

petitioners simply to assuage their pain and loss. The law on the matter is
clear: only the negligent driver, the driver's employer, and the registered

In the case at bar, Mayor Miguel was neither Lozano's employer nor the

owner of the vehicle are liable for the death of a third person resulting from

vehicle's registered owner. There existed no causal relationship between

the negligent operation of the vehicle.

him and Lozano or the vehicle used that will make him accountable for
Marvin's death. Mayor Miguel was a mere passenger at the time of the

WHEREFORE, the petition is DENIED and the appealed Decision

accident.

AFFIRMED.

Parenthetically, it has been held that the failure of a passenger to assist the SO ORDERED.
driver, by providing him warnings or by serving as lookout does not make
the passenger liable for the latter's negligent acts.[35] The driver's duty is
not one that may be delegated to others.[36]

As correctly held by the trial court, the true and lawful employer of Lozano
is the Municipality of Koronadal. Unfortunately for Spouses Jayme, the
municipality may not be sued because it is an agency of the State engaged
in governmental functions and, hence, immune from suit. This immunity is
illustrated in Municipality of San Fernando, La Union v. Firme,[37] where this
Court held:
It has already been remarked that municipal corporations are suable
because their charters grant them the competence to sue and be sued.
Nevertheless, they are generally not liable for torts committed by them in
the discharge of governmental functions and can only be held answerable
only if it can be shown that they were acting in proprietary capacity. In
permitting such entities to be sued, the State merely gives the claimant the
right to show that the defendant was not acting in governmental capacity
when the injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant cannot recover.[38]
Verily, liability attaches to the registered owner, the negligent driver and his
direct employer. The CA observation along this line are worth restating:

125 | P a g e

Torts 5

126467, to perform hysterectomy upon Natividad.

PROFESSIONAL SERVICES, INC., Petitioner, vs. THE COURT OF
Dr. Fuentes performed and completed the hysterectomy. Afterwards, Dr.
APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents,
Ampil took over, completed the operation and closed the incision.
However, the operation appeared to be flawed. In the corresponding
G.R. No. 126467
Record of Operation dated April 11, 1984, the attending nurses entered
these remarks:
NATIVIDAD (Substituted by her children MARCELINO AGANA III,
ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and

sponge count lacking 2

RAYMUND AGANA) and ENRIQUE AGANA, Petitioners, vs. THE

COURT OF APPEALS and JUAN FUENTES, Respondents,

G.R. No. 127590

MIGUEL AMPIL, Petitioner, vs. THE COURT OF APPEALS and

NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

announced to surgeon searched done (sic) but to no avail

continue for closure.

After a couple of days, Natividad complained of excruciating pain in her

anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They
told her that the pain was the natural consequence of the surgical

RESOLUTION

SANDOVAL-GUTIERREZ, J.:

operation performed upon her. Dr. Ampil recommended that Natividad

consult an oncologist to treat the cancerous nodes which were not
removed during the operation.

As the hospital industry changes, so must the laws and jurisprudence

governing hospital liability. The immunity from medical malpractice
traditionally accorded to hospitals has to be eroded if we are to balance the
interest of the patients and hospitals under the present setting.

On May 9, 1984, Natividad, accompanied by her husband, went to the

United States to seek further treatment. After four (4) months of
consultations and laboratory examinations, Natividad was told that she was
free of cancer. Hence, she was advised to return to the Philippines.

Before this Court is a motion for reconsideration filed by Professional

Services, Inc. (PSI), petitioner in G.R. No. 126297, assailing the Courts
First Division Decision dated January 31, 2007, finding PSI and Dr. Miguel
Ampil, petitioner in G.R. No. 127590, jointly and severally liable for medical
negligence.

On August 31, 1984, Natividad flew back to the Philippines, still suffering
from pains. Two (2) weeks thereafter, her daughter found a piece of gauze
protruding from her vagina. Dr. Ampil was immediately informed. He
proceeded to Natividads house where he managed to extract by hand a
piece of gauze measuring 1.5 inches in width. Dr. Ampil then assured

A brief revisit of the antecedent facts is imperative.

On April 4, 1984, Natividad Agana was admitted at the Medical City

General Hospital (Medical City) because of difficulty of bowel movement
and bloody anal discharge. Dr. Ampil diagnosed her to be suffering from

Natividad that the pains would soon vanish.

Despite Dr. Ampils assurance, the pains intensified, prompting Natividad

to seek treatment at the Polymedic General Hospital. While confined
thereat, Dr. Ramon Gutierrez detected the presence of a foreign object in

cancer of the sigmoid. Thus, on April 11, 1984, Dr. Ampil, assisted by the

her vagina -- a foul-smelling gauze measuring 1.5 inches in width. The

medical staff[1] of Medical City, performed an anterior resection surgery

gauze had badly infected her vaginal vault. A recto-vaginal fistula had

upon her. During the surgery, he found that the malignancy in her sigmoid
area had spread to her left ovary, necessitating the removal of certain
portions of it. Thus, Dr. Ampil obtained the consent of Atty. Enrique Agana,

formed in her reproductive organ which forced stool to excrete through the
vagina. Another surgical operation was needed to remedy the situation.
Thus, in October 1984, Natividad underwent another surgery.

Natividads husband, to permit Dr. Juan Fuentes, respondent in G.R. No.

On November 12, 1984, Natividad and her husband filed with the Regional
126 | P a g e

Torts 5

Trial Court, Branch 96, Quezon City a complaint for damages against PSI
(owner of Medical City), Dr. Ampil and Dr. Fuentes.

The motion lacks merit.

On February 16, 1986, pending the outcome of the above case, Natividad

As earlier mentioned, the First Division, in its assailed Decision, ruled that

died. She was duly substituted by her above-named children (the Aganas).

an employer-employee relationship in effect exists between the Medical

City and Dr. Ampil. Consequently, both are jointly and severally liable to

On March 17, 1993, the trial court rendered judgment in favor of spouses

the Aganas. This ruling proceeds from the following ratiocination in Ramos:

Agana finding PSI, Dr. Ampil and Dr. Fuentes jointly and severally liable.

We now discuss the responsibility of the hospital in this particular incident.

On appeal, the Court of Appeals, in its Decision dated September 6, 1996,

The unique practice (among private hospitals) of filling up specialist staff

affirmed the assailed judgment with modification in the sense that the

with attending and visiting consultants, who are allegedly not hospital

complaint against Dr. Fuentes was dismissed.

employees, presents problems in apportioning responsibility for negligence

in medical malpractice cases. However, the difficulty is only more

PSI, Dr. Ampil and the Aganas filed with this Court separate petitions for

apparent than real.

review on certiorari. On January 31, 2007, the Court, through its First
Division, rendered a Decision holding that PSI is jointly and severally liable

In the first place, hospitals exercise significant control in the hiring and

with Dr. Ampil for the following reasons: first, there is an employer-

firing of consultants and in the conduct of their work within the

employee relationship between Medical City and Dr. Ampil. The Court

hospital premises. Doctors who apply for consultant slots, visiting or

[2]

relied on Ramos v. Court of Appeals, holding that for the purpose of

attending, are required to submit proof of completion of residency, their

apportioning responsibility in medical negligence cases, an employer-

educational qualifications; generally, evidence of accreditation by the

employee relationship in effect exists between hospitals and their

appropriate board (diplomate), evidence of fellowship in most cases, and

attending and visiting physicians; second, PSIs act of publicly displaying in

references. These requirements are carefully scrutinized by members of

the lobby of the Medical City the names and specializations of its

the hospital administration or by a review committee set up by the hospital

accredited physicians, including Dr. Ampil, estopped it from denying the

who either accept or reject the application. This is particularly true with

existence of an employer-employee relationship between them under the

respondent hospital.

doctrine of ostensible agency or agency by estoppel; and third, PSIs

failure to supervise Dr. Ampil and its resident physicians and nurses and to

After a physician is accepted, either as a visiting or attending

take an active step in order to remedy their negligence rendered it directly

consultant, he is normally required to attend clinico-pathological

liable under the doctrine of corporate negligence.

conferences, conduct bedside rounds for clerks, interns and

residents, moderate grand rounds and patient audits and perform

In its motion for reconsideration, PSI contends that the Court erred in

other tasks and responsibilities, for the privilege of being able to

finding it liable under Article 2180 of the Civil Code, there being no

maintain a clinic in the hospital, and/or for the privilege of admitting

employer-employee relationship between it and its consultant, Dr. Ampil.

patients into the hospital. In addition to these, the physicians

PSI stressed that the Courts Decision in Ramos holding that an employer- performance as a specialist is generally evaluated by a peer review
employee relationship in effect exists between hospitals and their

committee on the basis of mortality and morbidity statistics, and

attending and visiting physicians for the purpose of apportioning

feedback from patients, nurses, interns and residents. A consultant

[3]

responsibility had been reversed in a subsequent Resolution. Further,

remiss in his duties, or a consultant who regularly falls short of the

PSI argues that the doctrine of ostensible agency or agency by

minimum standards acceptable to the hospital or its peer review

estoppel cannot apply because spouses Agana failed to establish one

committee, is normally politely terminated.

requisite of the doctrine, i.e., that Natividad relied on the representation of

the hospital in engaging the services of Dr. Ampil. And lastly, PSI maintains In other words, private hospitals hire, fire and exercise real control over
that the doctrine of corporate negligence is misplaced because the

their attending and visiting consultant staff. While consultants are not,

proximate cause of Natividads injury was Dr. Ampils negligence.

technically employees, a point which respondent hospital asserts in

127 | P a g e

Torts 5

denying all responsibility for the patients condition, the control

In general, a hospital is not liable for the negligence of an independent

exercised, the hiring, and the right to terminate consultants all fulfill

contractor-physician. There is, however, an exception to this principle. The

the important hallmarks of an employer-employee relationship, with

hospital may be liable if the physician is the ostensible agent of the

the exception of the payment of wages. In assessing whether such a

hospital. (Jones v. Philpott, 702 F. Supp. 1210 [1988]) This exception is

relationship in fact exists, the control test is determining.

also known as the doctrine of apparent authority. (Sometimes referred to

Accordingly, on the basis of the foregoing, we rule that for the

as the apparent or ostensible agency theory. [King v. Mitchell, 31 A.D.3rd

purpose of allocating responsibility in medical negligence cases, an

958, 819 N.Y. S.2d 169 (2006)].

employer-employee relationship in effect exists between hospitals

xxx

and their attending and visiting physicians. This being the case, the
question now arises as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioners condition.

The doctrine of apparent authority essentially involves two factors to

determine the liability of an independent contractor-physician.

The basis for holding an employer solidarily responsible for the negligence
of its employee is found in Article 2180 of the Civil Code which considers a

The first factor focuses on the hospitals manifestations and is sometimes

person accountable not only for his own acts but also for those of others

described as an inquiry whether the hospital acted in a manner which

based on the formers responsibility under a relationship of partia ptetas.

would lead a reasonable person to conclude that the individual who was

Clearly, in Ramos, the Court considered the peculiar relationship between

alleged to be negligent was an employee or agent of the hospital. (Diggs v.

a hospital and its consultants on the bases of certain factors. One such

Novant Health, Inc., 628 S.E.2d 851 (2006) citing Hylton v. Koontz, 138

factor is the control test wherein the hospital exercises control in the

N.C. App. 629 (2000). In this regard, the hospital need not make

hiring and firing of consultants, like Dr. Ampil, and in the conduct of their

express representations to the patient that the treating physician is

work.

an employee of the hospital; rather a representation may be general

and implied. (Id.)

Actually, contrary to PSIs contention, the Court did not reverse its ruling in
Ramos. What it clarified was that the De Los Santos Medical Clinic did not

The doctrine of apparent authority is a specie of the doctrine of estoppel.

exercise control over its consultant, hence, there is no employer-employee

Article 1431 of the Civil Code provides that [t]hrough estoppel, an

relationship between them. Thus, despite the granting of the said hospitals

admission or representation is rendered conclusive upon the person

motion for reconsideration, the doctrine in Ramos stays, i.e., for the

making it, and cannot be denied or disproved as against the person relying

purpose of allocating responsibility in medical negligence cases, an

thereon. Estoppel rests on this rule: Whether a party has, by his own

employer-employee relationship exists between hospitals and their

declaration, act, or omission, intentionally and deliberately led another to

consultants.

believe a particular thing true, and to act upon such belief, he cannot, in
any litigation arising out of such declaration, act or omission, be permitted

In the instant cases, PSI merely offered a general denial of responsibility,

to falsify it. (De Castro v. Ginete, 137 Phil. 453 [1969], citing Sec. 3, par. A,

maintaining that consultants, like Dr. Ampil, are independent contractors,

Rule 131 of the Rules of Court. See also King v. Mitchell, 31 A.D.3rd 958,

not employees of the hospital. Even assuming that Dr. Ampil is not an

819 N.Y.S.2d 169 [2006]).

employee of Medical City, but an independent contractor, still the said

hospital is liable to the Aganas.

xxx

In Nograles, et al. v. Capitol Medical Center, et al.,[4] through Mr. Justice

The second factor focuses on the patients reliance. It is sometimes

Antonio T. Carpio, the Court held:

characterized as an inquiry on whether the plaintiff acted in reliance upon

The question now is whether CMC is automatically exempt from liability

the conduct of the hospital or its agent, consistent with ordinary care and

considering that Dr. Estrada is an independent contractor-physician.

prudence. (Diggs v. Novant Health, Inc.)

PSI argues that the doctrine of apparent authority cannot apply to these
cases because spouses Agana failed to establish proof of their reliance on
128 | P a g e

Torts 5

the representation of Medical City that Dr. Ampil is its employee.

the question in every case is whether the principal has by his

voluntary act placed the agent in such a situation that a person of

The argument lacks merit.

ordinary prudence, conversant with business usages and the nature

of the particular business, is justified in presuming that such agent

[6]
Atty. Agana categorically testified that one of the reasons why he chose Dr. has authority to perform the particular act in question. In these

Ampil was that he knew him to be a staff member of Medical City, a

cases, the circumstances yield a positive answer to the question.

prominent and known hospital.

The challenged Decision also anchors its ruling on the doctrine of
Q Will you tell us what transpired in your visit to Dr.
Ampil?
A Well, I saw Dr. Ampil at the Medical City, I know him

corporate responsibility.[7] The duty of providing quality medical service

is no longer the sole prerogative and responsibility of the physician. This is
because the modern hospital now tends to organize a highly-professional

to be a staff member there, and I told him about

medical staff whose competence and performance need also to be

the case of my wife and he asked me to bring my

monitored by the hospital commensurate with its inherent responsibility to

wife over so she could be examined. Prior to that, I

provide quality medical care.[8] Such responsibility includes the proper

have known Dr. Ampil, first, he was staying in front

supervision of the members of its medical staff. Accordingly, the

of our house, he was a neighbor, second, my

hospital has the duty to make a reasonable effort to monitor and

daughter was his student in the University of the

oversee the treatment prescribed and administered by the physicians

East School of Medicine at Ramon Magsaysay; and

practicing in its premises.

when my daughter opted to establish a hospital or a

clinic, Dr. Ampil was one of our consultants on how

Unfortunately, PSI had been remiss in its duty. It did not conduct an

to establish that hospital. And from there, I have

immediate investigation on the reported missing gauzes to the great

known that he was a specialist when it comes to that

prejudice and agony of its patient. Dr. Jocson, a member of PSIs medical

illness.

staff, who testified on whether the hospital conducted an investigation, was

evasive, thus:

Atty. Agcaoili
On that particular occasion, April 2, 1984, what was

We go back to the operative technique, this

your reason for choosing to contact Dr. Ampil in

was signed by Dr. Puruganan, was this

connection with your wifes illness?

submitted to the hospital?

A First, before that, I have known him to be a specialist

Yes, sir, this was submitted to the hospital

with the record of the patient.

on that part of the body as a surgeon; second, I

have known him to be a staff member of the
Medical City which is a prominent and known

hospital. And third, because he is a neighbor, I

expect more than the usual medical service to be

Was the hospital immediately informed

about the missing sponges?

That is the duty of the surgeon, sir.

As a witness to an untoward incident in the

given to us, than his ordinary patients.[5]

Clearly, PSI is estopped from passing the blame solely to Dr. Ampil. Its act

operating room, was it not your obligation,

of displaying his name and those of the other physicians in the public

Dr., to also report to the hospital because

directory at the lobby of the hospital amounts to holding out to the public

you are under the control and direction of

that it offers quality medical service through the listed physicians. This

the hospital?

justifies Atty. Aganas belief that Dr. Ampil was a member of the hospitals
A

The hospital already had the record of the

staff. It must be stressed that under the doctrine of apparent authority,

129 | P a g e

Torts 5

that happened until now.[9]

two OS missing, sir.

If you place yourself in the position of the

The above testimony obviously shows Dr. Jocsons lack of concern for

hospital, how will you recover.

the patients. Such conduct is reflective of the hospitals manner of

You do not answer my question with

supervision. Not only did PSI breach its duty to oversee or supervise
all persons who practice medicine within its walls, it also failed to

another question.

take an active step in fixing the negligence committed. This renders

PSI, not only vicariously liable for the negligence of Dr. Ampil under Article
Q

Did the hospital do anything about the

2180 of the Civil Code, but also directly liable for its own negligence
missing gauzes?
under Article 2176.

The hospital left it up to the surgeon who

was doing the operation, sir.

Moreover, there is merit in the trial courts finding that the failure of PSI to
conduct an investigation established PSIs part in the dark conspiracy

Did the hospital investigate the surgeon

of silence and concealment about the gauzes. The following testimony

who did the operation?

of Atty. Agana supports such findings, thus:

I am not in the position to answer that, sir.

Q

You said you relied on the promise of Dr. Ampil

and despite the promise you were not able to

You never did hear the hospital

obtain the said record. Did you go back to the

investigating the doctors involved in this

record custodian?

case of those missing sponges, or did you

A

I did not because I was talking to Dr. Ampil. He

hear something?
promised me.

xxx

xxx
Q

After your talk to Dr. Ampil, you went to the

record custodian?

I think we already made a report by just

saying that two sponges were missing, it is

I went to the record custodian to get the

clinical record of my wife, and I was given a

up to the hospital to make the move.

portion of the records consisting of the

findings, among them, the entries of the

Atty. Agana

dates, but not the operating procedure and

operative report.[10]

Precisely, I am asking you if the hospital

did a move, if the hospital did a move.
A

In sum, we find no merit in the motion for reconsideration.

I cannot answer that.

WHEREFORE, we DENY PSIs motion for reconsideration with finality.

Court
SO ORDERED.
By that answer, would you mean to tell the
Court that you were aware if there was such
a move done by the hospital?
A

I cannot answer that, your honor, because I

did not have any more follow-up of the case

130 | P a g e

Torts 5

NOEL CASUMPANG, RUBY SANGA-MIRANDA AND SAN JUAN DE

After taking Edmer's medical history, Dr. Livelo took his vital signs, body

DIOS HOSPITAL, PETITIONERS, VS. NELSON CORTEJO,

temperature, and blood pressure.[6] Based on these initial examinations

RESPONDENT.

and the chest x-ray test that followed, Dr. Livelo diagnosed Edmer with
"bronchopneumonia."[7] Edmer's blood was also taken for testing, typing,

[G.R. No. 171217]

and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave

Edmer an antibiotic medication to lessen his fever and to loosen his

DRA. RUBY SANGA-MIRANDA, PETITIONER, VS. NELSON CORTEJO,

phlegm.

RESPONDENT.
Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care
[G.R. No. 171228]

card and was referred to an accredited Fortune Care coordinator, who was
then out of town. She was thereafter assigned to Dr. Noel Casumpang (Dr.

SAN JUAN DE DIOS HOSPITAL, PETITIONER, VS. NELSON

Casumpang), a pediatrician also accredited with Fortune Care. [8]

CORTEJO, RESPONDENT.
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time
DECISION

examined Edmer in his room. Using only a stethoscope, he confirmed the

initial diagnosis of "Bronchopneumonia."[9]

BRION, J.:
At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's
We resolve the three (3) consolidated petitions for review on certiorari[1]
involving medical negligence, commonly assailing the October 29, 2004
[2]

diagnosis. She immediately advised Dr. Casumpang that Edmer had a high
fever, and had no colds or cough[10] but Dr. Casumpang merely told her

[3]

decision and the January 12, 2006 resolution of the Court of Appeals

that her son's "bloodpressure is just being active,"[11] and remarked that

(CA) in CA-G.R. CV No. 56400. This CA decision affirmed en toto the

"that's the usual bronchopneumonia, no colds, no phlegm."[12]

ruling of the Regional Trial Court (RTC), Branch 134, Makati City.
Dr. Casumpang next visited and examined Edmer at 9:00 in the morning
The RTC awarded Nelson Cortejo (respondent) damages in the total
amount of P595,000.00, for the wrongful death of his son allegedly due to
the medical negligence of the petitioning doctors and the hospital.

Factual Antecedents

the following day.[13] Still suspicious about his son's illness, Mrs. Cortejo
again called Dr. Casumpang's attention and stated that Edmer had a fever,
throat irritation, as well as chest and stomach pain. Mrs. Cortejo also
alerted Dr. Casumpang about the traces of blood in Edmer's sputum.
Despite these pieces of information, however, Dr. Casumpang simply
nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo that

The common factual antecedents are briefly summarized below.

Edmer's illness is bronchopneumonia.[14]
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm
brought her 11-year old son, Edmer Cortejo (Edmer), to the Emergency
Room of the San Juan de Dios Hospital (SJDH) because of difficulty in
breathing, chest pain, stomach pain, and fever.[4]

with blood streak"[15] prompting the respondent (Edmer's father) to request

for a doctor at the nurses' station.[16]

Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer.
resident physicians of SJDH, arrived. She claimed that although aware that
In her testimony, Mrs. Cortejo narrated that in the morning of April 20,
Edmer had vomited "phlegm with blood streak," she failed to examine the
1988, Edmer had developed a slight fever that lasted for one day; a few
blood specimen because the respondent washed it away. She then
hours upon discovery, she brought Edmer to their family doctor; and two
hours after administering medications, Edmer's fever had subsided. [5]

advised the respondent to preserve the specimen for examination.

131 | P a g e

Torts 5

Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's

and noted that he was "comfortable." The respondent requested for an

head, eyes, nose, throat, lungs, skin and abdomen; and found that Edmer

ambulance but he was informed that the driver was nowhere to be found.

had a low-grade non-continuing fever, and rashes that were not typical of

This prompted him to hire a private ambulance that cost him P600.00. [23]

dengue fever.[17] Her medical findings state:

the patient's rapid breathing and then the lung showed sibilant and the

At 12:00 midnight, Edmer, accompanied by his parents and by Dr.

patient's nose is flaring which is a sign that the patient is in respiratory

Casumpang, was transferred to Makati Medical Center.

distress; the abdomen has negative finding; the patient has low grade fever
and not continuing; and the rashes in the patient's skin were not "Herman's
Rash" and not typical of dengue fever.

[18]

Dr. Casumpang immediately gave the attending physician the patient's

clinical history and laboratory exam results. Upon examination, the

At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing

attending physician diagnosed "Dengue Fever Stage IV" that was already

Dr. Miranda, the respondent showed her Edmer's blood specimen, and

in its irreversible stage.

reported that Edmer had complained of severe stomach pain and difficulty
in moving his right leg.[19]

Edmer died at 4:00 in the morning of April 24, 1988.[24] His Death
Certificate indicated the cause of death as "Hypovolemic

Dr. Miranda then examined Edmer's "sputum with blood" and noted that he

Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."

was bleeding. Suspecting that he could be afflicted with dengue, she

inserted a plastic tube in his nose, drained the liquid from his stomach with

Believing that Edmer's death was caused by the negligent and erroneous

ice cold normal saline solution, and gave an instruction not to pull out the

diagnosis of his doctors, the respondent instituted an action for damages

tube, or give the patient any oral medication.

against SJDH, and its attending physicians: Dr. Casumpang and Dr.
Miranda (collectively referred to as the "petitioners") before the RTC of

Dr. Miranda thereafter conducted a tourniquet test, which turned out to be

negative.

[20]

Makati City.

She likewise ordered the monitoring of the patient's blood

The Ruling of the Regional Trial Court

pressure and some blood tests. Edmer's blood pressure was later found to
be normal.[21]

In a decision[25] dated May 30, 1997, the RTC ruled in favor of the
At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at his clinic

respondent, and awarded actual and moral damages, plus attorney's fees

and told him about Edmer's condition.[22] Upon being informed, Dr.

and costs.

Casumpang ordered several procedures done including: hematocrit,

hemoglobin, blood typing, blood transfusion and tourniquet tests.

In ruling that the petitioning doctors were negligent, the RTC found
untenable the petitioning doctors' contention that Edmer's initial symptoms

The blood test results came at about 6:00 in the evening.

did not indicate dengue fever. It faulted them for heavily relying on the
chest x-ray result and for not considering the other manifestations that

Dr. Miranda advised Edmer's parents that the blood test results showed

Edmer's parents had relayed. It held that in diagnosing and treating an

that Edmer was suffering from "Dengue Hemorrhagic Fever." One hour

illness, the physician's conduct should be judged not only by what he/she

later, Dr. Casumpang arrived at Edmer's room and he recommended his

saw and knew, but also by what he/she could have reasonably seen and

transfer to the Intensive Care Unit (ICU), to which the respondent

known. It also observed that based on Edmer's signs and symptoms, his

consented. Since the ICU was then full, Dr. Casumpang suggested to the

medical history and physical examination, and also the information that the

respondent that they hire a private nurse. The respondent, however,

petitioning doctors gathered from his family members, dengue fever was a

insisted on transferring his son to Makati Medical Center.

reasonably foreseeable illness; yet, the petitioning doctors failed to take a

second look, much less, consider these indicators of dengue.

After the respondent had signed the waiver, Dr. Casumpang, for the last
time, checked Edmer's condition, found that his blood pressure was stable,

The trial court also found that aside from their self-serving testimonies, the
petitioning doctors did not present other evidence to prove that they
132 | P a g e

Torts 5

exercised the proper medical attention in diagnosing and treating the

admissible. It gave credence to his opinion[26] that: (1) given the exhibited

patient, leading it to conclude that they were guilty of negligence.

symptoms of the patient, dengue fever should definitely be considered, and

bronchopneumonia could be reasonably ruled out; and (2) dengue fever

The RTC also held SJDH solidarity liable with the petitioning doctors for

could have been detected earlier than 7:30 in the evening of April 23, 1988

damages based on the following findings of facts: first, Dr. Casumpang, as

because the symptoms were already evident; and agreed with the RTC

consultant, is an ostensible agent of SJDH because before the hospital

that the petitioning doctors should not have solely relied on the chest-x-ray

engaged his medical services, it scrutinized and determined his fitness,

result, as it was not conclusive.

qualifications, and competence as a medical practitioner; and second, Dr.

Miranda, as resident physician, is an employee of SJDH because like Dr.

On SJDH's solidary liability, the CA ruled that the hospital's liability is

Casumpang, the hospital, through its screening committee, scrutinized and

based on Article 2180 of the Civil Code. The CA opined that the control

determined her qualifications, fitness, and competence before engaging

which the hospital exercises over its consultants, the hospital's power to

her services; the hospital also exercised control over her work.

hire and terminate their services, all fulfill the employer-employee

relationship requirement under Article 2180.

The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and

Lastly, the CA held that SJDH failed to adduce evidence showing that it

against the defendants, ordering the latter to pay solidarity and severally

exercised the diligence of a good father of a family in the hiring and the

plaintiff the following:

supervision of its physicians.

(1) Moral damages in the amount of P500,000.00;

The petitioners separately moved to reconsider the CA decision, but the

CA denied their motion in its resolution of January 12, 2006; hence, the

(2) Costs of burial and funeral in the amount of P45,000.00;

present consolidated petitions pursuant to Rule 45 of the Rules of Court.

The Petitions

(3) Attorney's fees of P50,000.00; and

(4) Cost of this suit.

I. Dr. Casumpang's Position (G.R. No. 171127)

SO ORDERED.

Dr. Casumpang contends that he gave his patient medical treatment and

The petitioners appealed the decision to the CA.

care to the best of his abilities, and within the proper standard of care
required from physicians under similar circumstances. He claims that his

The Ruling of the Court of Appeals

initial diagnosis of bronchopneumonia was supported by the chest x-ray

result.

In its decision dated October 29, 2004, the CA affirmed en toto the RTC's
ruling, finding that SJDH and its attending physicians failed to exercise the

Dr. Casumpang also contends that dengue fever occurs only after several

minimum medical care, attention, and treatment expected of an ordinary

days of confinement. He alleged that when he had suspected that Edmer

doctor under like circumstances.

might be suffering from dengue fever, he immediately attended and treated

him.

The CA found the petitioning doctors' failure to read even the most basic
signs of "dengue fever" expected of an ordinary doctor as medical

Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's credibility,

negligence. The CA also considered the petitioning doctors' testimonies as

arguing that the CA erred in appreciating his testimony as an expert

self-serving, noting that they presented no other evidence to prove that

witness since he lacked the necessary training, skills, and experience as a

they exercised due diligence in diagnosing Edmer's illness.

specialist in dengue fever cases.

The CA likewise found Dr. Rodolfo Jaudian's (Dr. Jaudian) testimony

II. Dr. Miranda's Position (G.R. No. 171217)

133 | P a g e

Torts 5

Furthermore, SJDH claims that the CA erroneously applied the control test
In her petition, Dr. Miranda faults the CA for holding her responsible for

when it treated the hospital's practice of accrediting consultants as an

Edmer's wrong diagnosis, stressing that the function of making the

exercise of control. It explained that the control contemplated by law is that

diagnosis and undertaking the medical treatment devolved upon Dr.

which the employer exercises over the: (i) end result; and the (ii) manner

Casumpang, the doctor assigned to Edmer, and who confirmed

and means to be used to reach this end, and not any kind of control,

"bronchopneumonia."

however significant, in accrediting the consultants.

Dr. Miranda also alleged that she exercised prudence in performing her

SJDH moreover contends that even if the petitioning doctors are

duties as a physician, underscoring that it was her professional intervention considered employees and not merely consultants of the hospital, SJDH
that led to the correct diagnosis of "Dengue Hemorrhagic Fever."

cannot still be held solidarity liable under Article 2180 of the Civil Code

Furthermore, Edmer's Complete Blood Count (CBC) showed leukopenia

because it observed the diligence of a good father of a family in their

and an increase in balance as shown by the differential count,

selection and supervision as shown by the following: (1) the adequate

demonstrating that Edmer's infection, more or less, is of bacterial and not

measures that the hospital undertakes to ascertain the petitioning doctors'

viral in nature.

qualifications and medical competence; and (2) the documentary evidence

that the petitioning doctors presented to prove their competence in the field

Dr. Miranda as well argued that there is no causal relation between the

of pediatrics.[27]

alleged erroneous diagnosis and medication for "Bronchopneumonia," and

Edmer's death due to "Dengue Hemorrhagic Fever."

SJDH likewise faults the CA for ruling that the petitioning doctors are its
agents, claiming that this theory, aside from being inconsistent with the

Lastly, she claimed that Dr. Jaudian is not a qualified expert witness since

CA's finding of employment relationship, is unfounded because: first, the

he never presented any evidence of formal residency training and

petitioning doctors are independent contractors, not agents of SJDH; and

fellowship status in Pediatrics.

second, as a medical institution, SJDH cannot practice medicine, much

more, extend its personality to physicians to practice medicine on its

III. SJDH's Position (G.R. No. 171228)

behalf.

SJDH, on the other hand, disclaims liability by asserting that Dr.

Lastly, SJDH maintains that the petitioning doctors arrived at an

Casumpang and Dr. Miranda are mere independent contractors and

intelligently deduced and correct diagnosis. It claimed that based on

"consultants" (not employees) of the hospital. SJDH alleges that since it did Edmer's signs and symptoms at the time of admission (i.e., one day
not exercise control or supervision over the consultants' exercise of

fever,[28] bacterial infection,[29] and lack of hemorrhagic manifestations[30]),

medical profession, there is no employer-employee relationship between

there was no reasonable indication yet that he was suffering from dengue

them, and consequently, Article 2180 of the Civil Code does not apply.

fever, and accordingly, their failure to diagnose dengue fever, does not
constitute negligence on their part.

SJDH likewise anchored the absence of, employer-employee relationship

on the following circumstances: (1) SJDH does not hire consultants; it only

The Case for the Respondent

grants them privileges to admit patients in the hospital through

accreditation; (2) SJDH does not pay the consultants wages similar to an

In his comment, the respondent submits that the issues the petitioners

ordinary employee; (3) the consultants earn their own professional fees

raised are mainly factual in nature, which a petition for review on certiorari

directly from their patients; SJDH does not fire or terminate their services;

under Rule 45 of the Rules of Court does not allow.

and (4) SJDH does not control or interfere with the manner and the means
the consultants use in the treatment of their patients. It merely provides

In any case, he contends that the petitioning doctors were negligent in

them with adequate space in exchange for rental payment.

conducting their medical examination and diagnosis based on the

following: (1) the petitioning doctors failed to timely diagnose Edmer's
correct illness due to their non-observance of the proper and acceptable
134 | P a g e

Torts 5

standard of medical examination; (2) the petitioning doctors' medical

of the appellate court's factual findings and conclusions; this Court is not a

examination was not comprehensive, as they were always in a rush; and

trier of facts.[31]

(3) the petitioning doctors employed a guessing game in diagnosing

bronchopneumonia.

A question of law arises when there is doubt as to what the law is on a

certain state of facts, while there is a question of fact when the doubt arises

The respondent also alleges that there is a causal connection between the

as to the truth or falsity of the alleged facts.[32]

petitioning doctors' negligence and Edmer's untimely death, warranting the

These consolidated petitions before us involve mixed questions of fact

claim for damages.

and law. As a rule, we do not resolve questions of fact. However, in

The respondent, too, asserted that SJDH is also negligent because it was

determining the legal question of whether the respondent is entitled to

not equipped with proper paging system, has no bronchoscope, and its

claim damages under Article 2176 of the Civil Code for the petitioners'

doctors are not proportionate to the number of its patients. He also pointed

alleged medical malpractice, the determination of the factual issues - i.e.,

out that out of the seven resident physicians in the hospital, only two

whether the petitioning doctors were grossly negligent in diagnosing the

resident physicians were doing rounds at the time of his son's confinement.

patient's illness, whether there is causal relation between the petitioners'

act/omission and the patient's resulting death, and whether Dr. Jaudian is

The Issues

qualified as an expert witness - must necessarily be resolved. We resolve

these factual questions solely for the purpose of determining the legal

The case presents to us the following issues:

1.

Whether or not the petitioning doctors had committed

issues raised.

Medical Malpractice Suit as a Specialized Area of Tort Law

"inexcusable lack of precaution" in diagnosing and in

treating the patient;

2.

Whether or not the petitioner hospital is solidarity

liable with the petitioning doctors;

The claim for damages is based on the petitioning doctors' negligence in

diagnosing and treating the deceased Edmer, the child of the respondent.
It is a medical malpractice suit, an action available to victims to redress a
wrong committed by medical professionals who caused bodily harm to, or

3.

Whether or not there is a causal connection between

the death of, a patient.[33] As the term is used, the suit is brought whenever

the petitioners' negligent act/omission and the

a medical practitioner or health care provider fails to meet the standards

patient's resulting death; and

demanded by his profession, or deviates from this standard, and causes

injury to the patient.

4.

Whether or not the lower courts erred in considering

Dr. Rodolfo Tabangcora Jaudian as an expert

To successfully pursue a medical malpractice suit, the plaintiff (in this case,

witness.

the deceased patient's heir) must prove that the doctor either failed to do
what a reasonably prudent doctor would have done, or did what a
Our Ruling

reasonably prudent doctor would not have done; and the act or omission
had caused injury to the patient.[34] The patient's heir/s bears the burden of

We find the petition partly meritorious.

proving his/her cause of action.

A Petition for Review on Certiorari under Rule 45 of the Rules of

The Elements of a Medical Malpractice Suit

Court is Limited to Questions of Law.

The elements of medical negligence are: (1) duty; (2) breach; (3) injury;
The settled rule is that the Court's jurisdiction in a petition for review on

and (4) proximate causation.

certiorari under Rule 45 of the Rules of Court is limited only to the review of
pure questions of law. It is not the Court's function to inquire on the veracity
135 | P a g e

Torts 5

Duty refers to the standard of behavior that imposes restrictions on one's

conduct.

[35]

or damage, and that the injury or damage was either a direct result, or a
reasonably probable consequence of the physician's negligence. [45]

It requires proof of professional relationship between the

physician and the patient. Without the professional relationship, a physician

owes no duty to the patient, and cannot therefore incur any liability.

a. The Relationship Between Dr. Casumpang and Edmer

A physician-patient relationship is created when a patient engages the

In the present case, the physician-patient relationship between Dr.

services of a physician,

[36]

and the latter accepts or agrees to provide care

Casumpang and Edmer was created when the latter's parents sought the

to the patient.[37] The establishment of this relationship is consensual,[38]

medical services of Dr. Casumpang, and the latter knowingly accepted

and the acceptance by the physician essential. The mere fact that an

Edmer as a patient. Dr. Casumpang's acceptance is implied from his

individual approaches a physician and seeks diagnosis, advice or

treatment does not create the duty of care unless the physician agrees.

affirmative examination, diagnosis and treatment of Edmer. On the other

[39]

hand, Edmer's parents, on their son's behalf, manifested their consent by

availing of the benefits of their health care plan, and by accepting the

The consent needed to create the relationship does not always need to be

hospital's assigned doctor without objections.

express.[40] In the absence of an express agreement, a physician-patient

relationship may be implied from the physician's affirmative action to

b. The Relationship Between Dr. Miranda and Edmer

diagnose and/or treat a patient, or in his participation in such diagnosis

and/or treatment.[41] The usual illustration would be the case of a patient

With respect to Dr. Miranda, her professional relationship with Edmer arose

who goes to a hospital or a clinic, and is examined and treated by the

when she assumed the obligation to provide resident supervision over the

doctor. In this case, we can infer, based on the established and customary

latter. As second year resident doctor tasked to do rounds and assist other

practice in the medical community that a patient-physician relationship

physicians, Dr. Miranda is deemed to have agreed to the creation of

exists.

physician-patient relationship with the hospital's patients when she

participated in the diagnosis and prescribed a course of treatment for

Once a physician-patient relationship is established, the legal duty of care

Edmer.

follows. The doctor accordingly becomes duty-bound to use at least the

same standard of care that a reasonably competent doctor would use to

The undisputed evidence shows that Dr. Miranda examined Edmer twice

treat a medical condition under similar circumstances.

(at around 12:00 and 3:30 in the afternoon of April 23, 1988), and in both
instances, she prescribed treatment and participated in the diagnosis of

Breach of duty occurs when the doctor fails to comply with, or improperly

Edmer's medical condition. Her affirmative acts amounted to her

performs his duties under professional standards. This determination is

acceptance of the physician-patient relationship, and incidentally, the legal

both factual and legal, and is specific to each individual case. [42]

duty of care that went with it.

If the patient, as a result of the breach of duty, is injured in body or in

In Jarcia, Jr. v. People of the Philippines,[46] the Court found the doctors

health, actionable malpractice is committed, entitling the patient to

who merely passed by and were requested to attend to the patient, liable

[43]

damages.

for medical malpractice. It held that a physician-patient relationship was

established when they examined the patient, and later assured the mother

To successfully claim damages, the patient must lastly prove the causal

that everything was fine.

relation between the negligence and the injury. This connection must be
direct, natural, and should be unbroken by any intervening efficient causes.

In the US case of Mead v. Legacy Health System,[47] the Court also

In other words, the negligence must be the proximate cause of the

considered the rendering of an opinion in the course of the patient's care

injury.[44] The injury or damage is proximately caused by the physician's

as the doctor's assent to the physician-patient relationship. It ruled that the

negligence when it appears, based on the evidence and the expert

relationship was formed because of the doctor's affirmative action.

testimony, that the negligence played an integral part in causing the injury

136 | P a g e

Torts 5

Likewise, in Wax v. Johnson,[48] the court found that a physician-patient

reasonably ruled out.[52]

relationship was formed between a physician who "contracts, agrees,

undertakes, or otherwise assumes" the obligation to provide resident

Furthermore, the standard of care according to Dr. Jaudian is to administer

supervision at a teaching hospital, and the patient with whom the doctor

oxygen inhalation, analgesic, and fluid infusion or dextrose.[53] If the patient

had no direct or indirect contract.

had twice vomited fresh blood and thrombocytopenia has already occurred,
the doctor should order blood transfusion, monitoring of the patient every

Standard of Care and Breach of Duty

30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in

breathing.[54]

A determination of whether or not the petitioning doctors met the required

standard of care involves a question of mixed fact and law; it is factual as

We find that Dr. Casumpang, as Edmer's attending physician, did not

medical negligence cases are highly technical in nature, requiring the

act according to these standards and, hence, was guilty of breach of

presentation of expert witnesses to provide guidance to the court on

duty. We do not find Dr. Miranda liable for the reasons discussed

matters clearly falling within the domain of medical science, and legal,

below.

insofar as the Court, after evaluating the expert testimonies, and guided by
medical literature, learned treatises, and its fund of common knowledge,

Dr. Casumpang's Negligence

ultimately determines whether breach of duty took place.

a. Negligence in the Diagnosis
Whether or not Dr. Casumpang and Dr. Miranda committed a breach of
duty is to be measured by the yardstick of professional standards observed

At the trial, Dr. Casumpang declared that a doctor's impression regarding a

by the other members of the medical profession in good standing under

patient's illness is 90% based on the physical examination, the information

similar circumstances.

[49]

It is in this aspect of medical malpractice that

given by the patient or the latter's parents, and the patient's medical

expert testimony is essential to establish not only the professional

history.[55] He testified that he did not consider either dengue fever or

standards observed in the medical community, but also that the physician's

dengue hemorrhagic fever because the patient's history showed that

conduct in the treatment of care falls below such standard. [50]

Edmer had low breath and voluntary submission, and that he was up and
about playing basketball.[56] He based his diagnosis of bronchopneumonia

In the present case, expert testimony is crucial in determining first, the

on the following observations: "difficulty in breathing, clearing run nostril,

standard medical examinations, tests, and procedures that the attending

harsh breath sound, tight air, and sivilant sound."[57]

physicians should have undertaken in the diagnosis and treatment of

dengue fever; and second, the dengue fever signs and symptoms that the

It will be recalled that during Dr. Casumpang's first and second visits to

attending physicians should have noticed and considered.

Edmer, he already had knowledge of Edmer's laboratory test result (CBC),

medical history, and symptoms (i.e., fever, rashes, rapid breathing, chest

Both the RTC and the CA relied largely on Dr. Jaudian's expert testimony

and stomach pain, throat irritation, difficulty in breathing, and traces of

on dengue diagnosis and management to support their finding that the

blood in the sputum). However, these information did not lead Dr.

petitioning doctors were guilty of breach of duty of care.

Casumpang to the possibility that Edmer could be suffering from

either dengue fever, or dengue hemorrhagic fever, as he clung to his

Dr. Jaudian testified that Edmer's rapid breathing, chest and stomach pain,

diagnosis of broncho pneumonia. This means that given the symptoms

fever, and the presence of blood in his saliva are classic symptoms of

exhibited, Dr. Casumpang already ruled out the possibility of other

dengue fever. According to him, if the patient was admitted for chest pain,

diseases like dengue.

abdominal pain, and difficulty in breathing coupled with fever, dengue fever
should definitely be considered;[51] if the patient spits coffee ground with the In other words, it was lost on Dr. Casumpang that the characteristic
presence of blood, and the patient's platelet count drops to 47,000, it

symptoms of dengue (as Dr. Jaudian testified) are: patient's rapid

becomes a clear case of dengue fever, and bronchopneumonia can be

breathing; chest and stomach pain; fever; and the presence of blood in his

137 | P a g e

Torts 5

saliva. All these manifestations were present and known to Dr. Casumpang Q: Do you know what action was taken by Dr. Casumpang when you
at the time of his first and second visits to Edmer. While he noted some of

told him that your son is experiencing a rapid breathing?

these symptoms in confirming bronchopneumonia, he did not seem to have A: No action. He just asked me if my son has an asthma but I said
considered the patient's other manifestations in ruling out dengue fever or
dengue hemorrhagic fever.

[58]

To our mind, Dr. Casumpang selectively

appreciated some, and not all of the symptoms; worse, he casually ignored

none.
Q: So how long did Dr. Casumpang stay and attended your son on
April 23?

the pieces of information that could have been material in detecting dengue A: More or less two (2) minutes then I followed him up to the door
fever. This is evident from the testimony of Mrs. Cortejo:

and I repeated about the fever of my son.

Q: What did he tell you, if any, regarding that information you gave

TSN, Mrs. Cortejo, November 27, 1990

Q: Now, when Dr. Casumpang visited your son for the first time at 5:30
p.m., what did he do, if any?

him that your son had a fever?

A: He said, that is broncho pneumonia, It's only being active now.
[Emphasis supplied]

A: He examined my son by using stethoscope and after that, he confirmed

to me that my son was suffering from broncho pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia,
what did you say if any?

We also find it strange why Dr. Casumpang did not even bother to check
Edmer's throat despite knowing that as early as 9:00 in the morning of April
23, 1988, Edmer had blood streaks in his sputum. Neither did Dr.
Casumpang order confirmatory tests to confirm the source of bleeding. The

A: Again, I told Dr. Casumpang, how come it was broncho

pneumonia when my son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx

Physician's Progress Notes[59] stated: "Blood streaks on phlegm can be

due to bronchial irritation or congestion" which clearly showed that Dr.
Casumpang merely assumed, without confirmatory physical examination,
that bronchopneumonia caused the bleeding.

A: And then, Dr. Casumpang answered "THAT'S THE USUAL

BRONCHO PNEUMONIA, NO COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your son's room?
A: He stayed for a minute or 2.

Dr. Jaudian likewise opined that Dr. Casumpang's medical examination

was not comprehensive enough to reasonably lead to a correct
diagnosis.[60] Dr. Casumpang only used a stethoscope in coming up with

xxxx
Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April 23, what
did you tell him, if any?

the diagnosis that Edmer was suffering from bronchopneumonia; he never

confirmed this finding with the use of a bronchoscope. Furthermore, Dr.
Casumpang based his diagnosis largely on the chest x-ray result that is

xxxx

generally inconclusive.[61]

A: I told Dr. Casumpang... After examining my son using stethoscope

and nothing more, I told Dr. Casumpang about the traces of blood
in my son's sputum and I told him what is all about and he has
throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of
looking at the throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach
pain.

Significantly, it was only at around 5:00 in the afternoon of April 23, 1988
(after Edmer's third episode of bleeding) that Dr. Casumpang ordered the
conduct of hematocrit, hemoglobin, blood typing, blood transfusion and
tourniquet tests. These tests came too late, as proven by: (1) the blood test
results that came at about 6:00 in the evening, confirming that Edmer's
illness had developed to "Dengue Hemorrhagic Fever" and (2) Dr.
Jaudian's testimony that "dengue fever could have been detected earlier
than 7:30 in the evening of April 23, 1988 because the symptoms were
already evident."[62]

Q: So what did Dr. Casumpang do after you have narrated all these
complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my
son was almost moving because of rapid breathing and he is

In Spouses Flores v. Spouses Pineda,[63] a case involving a medical

malpractice suit, the Court ruled that the petitioner doctors were negligent
because they failed to immediately order tests to confirm the patient's

swaying in the bed.

138 | P a g e

Torts 5

illness. Despite the doctors' suspicion that the patient could be suffering

Third, we also note that medicine is not an exact science;[66] and doctors,

from diabetes, the former still proceeded to the D&C operation. In that

or even specialists, are not expected to give a 100% accurate diagnosis in

case, expert testimony showed that tests should have been ordered

treating patients who come to their clinic for consultations. Error is possible

immediately on admission to the hospital in view of the symptoms

as the exercise of judgment is called for in considering and reading the

presented. The Court held:

exhibited symptoms, the results of tests, and in arriving at definitive

When a patient exhibits symptoms typical of a particular disease, these

conclusions. But in doing all these, the doctor must have acted according

symptoms should, at the very least, alert the physician of the possibility

to acceptable medical practice standards.

that the patient may be afflicted with the suspected disease.

The Court also ruled that reasonable prudence would have shown that

In the present case, evidence on record established that in confirming the

diabetes and its complications were foreseeable harm. However, the

diagnosis of bronchopneumonia, Dr. Casumpang selectively appreciated

petitioner doctors failed to take this into consideration and proceeded with

some and not all of the symptoms presented, and failed to promptly

the D&C operation. Thus, the Court ruled that they failed to comply with

conduct the appropriate tests to confirm his findings. In sum, Dr.

their duty to observe the standard of care to be given to

Casumpang failed to timely detect dengue fever, which failure, especially

hyperglycemic/diabetic patients.

when reasonable prudence would have shown that indications of dengue

were evident and/or foreseeable, constitutes negligence.

[64]

Similarly, in Jarcia,

involving the negligence of the doctors in failing to

exercise reasonable prudence in ascertaining the extent of the patient's

a. Negligence in the Treatment and Management of Dengue

injuries, this Court declared that:

In failing to perform an extensive medical examination to determine

Apart from failing to promptly detect dengue fever, Dr. Casumpang also

the extent of Roy Jr.'s injuries, Dr. Jarcia and Dr. Bastan were remiss

failed to promptly undertake the proper medical management needed

of their duties as members of the medical profession. Assuming for the

for this disease.

sake of argument that they did not have the capacity to make such
thorough evaluation at that stage, they should have referred the patient to

As Dr. Jaudian opined, the standard medical procedure once the patient

another doctor with sufficient training and experience instead of assuring

had exhibited the classic symptoms of dengue fever should have been:

him and his mother that everything was all right. [Emphasis supplied]

oxygen inhalation, use of analgesic, and infusion of fluids or dextrose;[67]

Even assuming that Edmer's symptoms completely coincided with the

and once the patient had twice vomited fresh blood, the doctor should have

diagnosis of bronchopneumonia (so that this diagnosis could not be

ordered: blood transfusion, monitoring of the patient every 30 minutes,

considered "wrong"), we still find Dr. Casumpang guilty of negligence.

hemostatic to stop bleeding, and oxygen if there is difficulty in breathing.[68]

First, we emphasize that we do not decide the correctness of a

Dr. Casumpang failed to measure up to these standards. The evidence

doctor's diagnosis, or the accuracy of the medical findings and

strongly suggests that he ordered a transfusion of platelet concentrate

treatment. Our duty in medical malpractice cases is to decide - based on

instead of blood transfusion. The tourniquet test was only conducted after

the evidence adduced and expert opinion presented - whether a breach of

Edmer's second episode of bleeding, and the medical management (as

duty took place.

reflected in the records) did not include antibiotic therapy and complete
physical examination.

Second, we clarify that a wrong diagnosis is not by itself medical

malpractice.[65] Physicians are generally not liable for damages resulting

Dr. Casumpang's testimony states:

from a bona fide error of judgment. Nonetheless, when the physician's

erroneous diagnosis was the result of negligent conduct (e.g., neglect of
medical history, failure to order the appropriate tests, failure to recognize
symptoms), it becomes an evidence of medical malpractice.

Q: Now, after entertaining - After considering that the patient Edmer

Cortero was already suffering from dengue hemorrhagic fever, what did
you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac
rate and respiratory rate of the patient.

139 | P a g e

Torts 5

Q: Now, was your instructions carried on?

he exercised prudence and due diligence in handling Edmer's case. Aside

A: Yes, sir.

from being self-serving, his claim is not supported by competent evidence.

Q: What was the blood pressure of the patient?

As the lower courts did, we rely on the uncontroverted fact that he failed,

A: During those times, the blood pressure of the patient was even normal

as a medical professional, to observe the most prudent medical procedure

during those times.

under the circumstances in diagnosing and treating Edmer.

Q: How about the respiratory rate?

A: The respiratory rate was fast because the patient in the beginning since Dr. Miranda is Not Liable for Negligence
admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?

In considering the case of Dr. Miranda, the junior resident physician who

A: We transfused platelet concentrate and at the same time, we

was on-duty at the time of Edmer's confinement, we see the need to draw

monitor [sic] the patient.

Q: Then, who monitor [sic] the patient?

distinctions between the responsibilities and corresponding liability of Dr.

Casumpang, as the attending physician, and that of Dr. Miranda.

A: The pediatric resident on duty at that time.

Q: Now, what happened after that?

In his testimony, Dr. Pasion declared that resident applicants are generally

Q: While monitoring the patient, all his vital signs were ________; his

doctors of medicine licensed to practice in the Philippines and who would

blood pressure was normal so we continued with the supportive

like to pursue a particular specialty.[70] They are usually the front line

management at that time.

doctors responsible for the first contact with the patient. During the scope

Q: Now, after that?

of the residency program,[71] resident physicians (or "residents")[72] function

A: In the evening of April 23, 1988,1 stayed in the hospital and I was

under the supervision of attending physicians[73] or of the hospital's

informed by the pediatric resident on duty at around 11:15 in the

teaching staff. Under this arrangement, residents operate merely as

evening that the blood pressure of the patient went down to .60

subordinates who usually defer to the attending physician on the decision

palpatory.

to be made and on the action to be taken.

Q: What did you do upon receipt of that information?

A: I immediately went up to the room of the patient and we changed

The attending physician, on the other hand, is primarily responsible for

the IV fluid from the present fluid which was D5 0.3 sodium

managing the resident's exercise of duties. While attending and resident

chloride to lactated ringers solution.

physicians share the collective responsibility to deliver safe and

Q: You mean to say you increased the dengue [sic] of the intervenus
[sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary

appropriate care to the patients,[74] it is the attending physician who

assumes the principal responsibility of patient care.[75] Because he/she
exercises a supervisory role over the resident, and is ultimately responsible

to resume the volume and to bring back the blood pressure, to

for the diagnosis and treatment of the patient, the standards applicable to

increase the blood pressure. [Emphasis supplied]

and the liability of the resident for medical malpractice is theoretically less

Although Dr. Casumpang presented the testimonies of Dr. Rodolfo

than that of the attending physician. These relative burdens and

Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion), Personnel Officer and

distinctions, however, do not translate to immunity from the legal duty of

Medical Director of SJDH, respectively as well as the testimonies of Dr.

care for residents,[76] or from the responsibility arising from their own

Livelo and Dr. Reyes (the radiologist who read Edmer's chest x-ray result),

negligent act.

these witnesses failed to dispute the standard of action that Dr. Jaudian
established in his expert opinion. We cannot consider them expert

In Jenkins v. Clark,[77] the Ohio Court of Appeals held that the applicable

witnesses either for the sole reason that they did not testify on the standard standard of care in medical malpractice cases involving first-year residents
of care in dengue cases.[69]

was that of a reasonably prudent physician and not that of interns.

According to Jenkins:

On the whole, after examining the totality of the adduced evidence, we find

It is clear that the standard of care required of physicians is not an

that the lower courts correctly did not rely on Dr. Casumpang's claim that

individualized one but of physicians in general in the community. In order to

140 | P a g e

Torts 5

establish medical malpractice, it must be shown by a preponderance of the

about the incident. Indubitably, her medical assistance led to the finding of

evidence that a physician did some particular thing or things that a

dengue fever.

physician or surgeon of ordinary skill, care and diligence would not have
done under like or similar conditions or circumstances, or that he failed or

We note however, that during Edmer's second episode of bleeding,[81] Dr.

omitted to do some particular thing or things that a physician or surgeon of

Miranda failed to immediately examine and note the cause of the blood

ordinary skill, care and diligence would have done under like or similar

specimen. Like Dr. Casumpang, she merely assumed that the blood in

conditions or circumstances, and that the inquiry complained of was the

Edmer's phlegm was caused by bronchopneumonia. Her testimony states:

direct result of such doing or failing to do such thing or things.

TSN, June 8, 1993:
We note that the standard of instruction given by the court was indeed a
proper one. It clearly informed the jury that the medical care required
is that of reasonably careful physicians or hospital emergency room
operators, not of interns or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,[78] affirmed the Jenkins ruling and held
that interns and first-year residents are "practitioners of medicine required
to exercise the same standard of care applicable to physicians with

Q: Let us get this clear, you said that the father told you the patient cocked
[sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the
specimen?
A: No, sir, I did not because according to the father he wash [sic] his
hands.
xxxx

unlimited licenses to practice." The Indiana Court held that although a firstyear resident practices under a temporary medical permit, he/she impliedly
contracts that he/she has the reasonable and ordinary qualifications of her
profession and that he/she will exercise reasonable skill, diligence, and
care in treating the patient.

Q: Now, from you knowledge, what does that indicate if the patient expels
a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have
come from the lung alone.[82] [Emphasis supplied]
xxxx

We find that Dr. Miranda was not independently negligent. Although

she had greater patient exposure, and was' subject to the same standard
of care applicable to attending physicians, we believe that a finding of
negligence should also depend on several competing factors, among them,
her authority to make her own diagnosis, the degree of supervision of the
attending physician over her, and the shared responsibility between her

TSN, June 17, 1993:

Q: Now, in the first meeting you had, when that was relayed to you by the
father that Edmer Cortejo had coughed out blood, what medical action
did you take?
A: I examined the patient and I thought that, that coughed out phlegm was
a product of broncho pneumonia.
xxxx

and the attending physicians.

Q: So what examination did you specifically conduct to see that there was
In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo and Dr.
Casumpang had diagnosed Edmer with bronchopneumonia. In her
testimony, Dr. Miranda admitted that she had been briefed about Edmer's
condition, his medical history, and initial diagnosis;[79] and based on these
pieces of information, she confirmed the, finding of bronchopneumonia.

no internal bleeding?
A: At that time I did not do anything to determine the cause of
coughing of the blood because I presumed that it was a mucous
(sic) produced by broncho pneumonia, And besides the patient
did not even show any signs of any other illness at that time.[83]
Based on her statements we find that Dr. Miranda was not entirely

Dr. Miranda likewise duly reported to Dr. Casumpang, who admitted

receiving updates regarding Edmer's condition.[80] There is also evidence
supporting Dr. Miranda's claim that she extended diligent care to Edmer. In
fact, when she suspected - during Edmer's second episode of bleeding that Edmer could be suffering from dengue fever, she wasted no time in
conducting the necessary tests, and promptly notified Dr. Casumpang

faultless. Nevertheless, her failure to discern the import of Edmer's

second bleeding does not necessarily amount to negligence as the
respondent himself admitted that Dr. Miranda failed to examine the blood
specimen because he washed it away. In addition, considering the
diagnosis previously made by two doctors, and the uncontroverted fact that
the burden of final diagnosis pertains to the attending physician (in this
case, Dr. Casumpang), we believe that Dr. Miranda's error was merely an

141 | P a g e

Torts 5

honest mistake of judgment influenced in no small measure by her status

the defendant-physicians. That the expert witnesses' specialties do not

in the hospital hierarchy; hence, she should not be held liable for medical

match the physicians' practice area only constituted, at most, one of the

negligence.

considerations that should not be taken out of context. After all, the sole
function of a medical expert witness, regardless of his/her specialty, is to

Dr. Jaudian 's Professional Competence and Credibility

afford assistance to the courts on medical matters, and to explain the

medical facts in issue.

One of the critical issues the petitioners raised in the proceedings before
the lower court and before this Court was Dr. Jaudian's competence and

Furthermore, there was no reasonable indication in Ramos and Cereno

credibility as an expert witness. The petitioners tried to discredit his expert

that the expert witnesses possess a sufficient familiarity with the standard

testimony on the ground that he lacked the proper training and fellowship

of care applicable to the physicians' specialties.

status in pediatrics.
US jurisprudence on medical malpractice demonstrated the trial courts'
Criteria in Qualifying as an Expert Witness

wide latitude of discretion in allowing a specialist from another field to

testify against a defendant specialist.

The competence of an expert witness is a matter for the trial court to

decide upon in the exercise of its discretion. The test of qualification is

In Brown v. Sims,[88] a neurosurgeon was found competent to give expert

necessarily a relative one, depending upon the subject matter of the

testimony regarding a gynecologist's standard of pre-surgical care. In that

investigation, and the fitness of the expert witness.

[84]

In our jurisdiction, the

case, the court held that since negligence was not predicated on the

criterion remains to be the expert witness' special knowledge experience

gynecologist's negligent performance of the operation, but primarily on the

and practical training that qualify him/her to explain highly technical

claim that the pre-operative histories and physicals were inadequate, the

medical matters to the Court.

neurosurgeon was competent to testify as an expert.

In Ramos v. Court of Appeals,[85] the Court found the expert witness, who is Frost v. Mayo Clinic[89] also allowed an orthopedic surgeon to testify
a pulmonologist, not qualified to testify on the field of anesthesiology.
[86]

Similarly, in Cereno v. Court of Appeals,

a 2012 case involving medical

against a neurologist in a medical malpractice action. The court considered

that the orthopedic surgeon's opinion on the "immediate need for

negligence, the Court excluded the testimony of an expert witness whose

decompression" need not come from a specialist in neurosurgery. The

specialty was anesthesiology, and concluded that an anesthesiologist

court held that:

cannot be considered an expert in the field of surgery or even in surgical

It is well established that "the testimony of a qualified medical doctor

practices and diagnosis.

cannot be excluded simply because he is not a specialist x x x." The matter

of "x x x training and specialization of the witness goes to the weight rather

Interestingly in this case, Dr. Jaudian, the expert witness was admittedly

than admissibility x x x."

not a pediatrician but a practicing physician who specializes in

xxxx

pathology.[87] He likewise does not possess any formal residency training in

pediatrics. Nonetheless, both the lower courts found his knowledge
acquired through study and practical experience sufficient to advance an

It did not appear to the court that a medical doctor had to be a specialist in

expert opinion on dengue-related cases.

neurosurgery to express the opinions permitted to be expressed by

plaintiffs' doctors, e.g., the immediate need for a decompression in the light

We agree with the lower courts.

of certain neurological deficits in a post-laminectomy patient. As stated

above, there was no issue as to the proper execution of the neurosurgery.

A close scrutiny of Ramos and Cereno reveals that the Court primarily

The medical testimony supported plaintiffs' theory of negligence and

based the witnesses' disqualification to testify as an expert on their

causation. (Citations omitted)

incapacity to shed light on the standard of care that must be observed by

In another case,[90] the court declared that it is the specialist's knowledge

of the requisite subject matter, rather than his/her specialty that
142 | P a g e

Torts 5

determines his/her qualification to testify.

practical and relevant exposure in pediatrics and dengue related cases, we

are convinced that Dr. Jaudian demonstrated sufficient familiarity with the

Also in Evans v. Ohanesian,[91] the court set a guideline in qualifying an

standard of care to be applied in dengue fever cases. Furthermore, we

expert witness:

agree that he possesses knowledge and experience sufficient to qualify

To qualify a witness as a medical expert, it must be shown that the witness

him to speak with authority on the subject.

(1) has the required professional knowledge, learning and skill of the
subject under inquiry sufficient to qualify him to speak with authority

The Causation Between Dr. Casumpang's Negligent Act/Omission,

on the subject; and (2) is familiar with the standard required of a

and the Patient's Resulting Death was Adequately Proven

physician under similar circumstances; where a witness has disclosed

sufficient knowledge of the subject to entitle his opinion to go to the jury,

Dr. Jaudian's testimony strongly suggests that due to Dr. Casumpang's

the question of the degree of his knowledge goes more to the weight of the

failure to timely diagnose Edmer with dengue, the latter was not

evidence than to its admissibility.

immediately given the proper treatment. In fact, even after Dr. Casumpang
had discovered Edmer's real illness, he still failed to promptly perform the
xxxx

standard medical procedure. We agree with these findings.

Nor is it critical whether a medical expert is a general practitioner or a

As the respondent had pointed out, dengue fever, if left untreated, could be

specialist so long as he exhibits knowledge of the subject. Where a

a life threatening disease. As in any fatal diseases, it requires immediate

duly licensed and practicing physician has gained knowledge of the

medical attention.[93] With the correct and timely diagnosis, coupled with the

standard of care applicable to a specialty in which he is not directly

proper medical management, dengue fever is not a life-threatening disease

engaged but as to which he has an opinion based on education,

and could easily be cured.[94]

experience, observation, or association wit that specialty, his opinion

is competent. (Emphasis supplied)

Furthermore, as Dr. Jaudian testified, with adequate intensive care, the

Finally, Brown v. Mladineo[92] adhered to the principle that the witness'

mortality rate of dengue fever should fall to less than 2%. Hence, the

familiarity, and not the classification by title or specialty, which should

survival of the patient is directly related to early and proper management of

control issues regarding the expert witness' qualifications:

the illness.[95]

The general rule as to expert testimony in medical malpractice actions is

that "a specialist in a particular branch within a profession will not be

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue

required." Most courts allow a doctor to testify if they are satisfied of his

fever despite the presence of its characteristic symptoms; and as a

familiarity with the standards of a specialty, though he may not practice the

consequence of the delayed diagnosis, he also failed to promptly manage

specialty himself. One court explained that "it is the scope of the witness'

Edmer's illness. Had he immediately conducted confirmatory tests, (i.e.,

knowledge and not the artificial classification by title that should govern the

tourniquet tests and series of blood tests) and promptly administered the

threshold question of admissibility. (Citations omitted)

proper care and management needed for dengue fever, the risk of

Application to the Present Case

complications or even death, could have been substantially reduced.

In the case and the facts before us, we find that Dr. Jaudian is competent

Furthermore, medical literature on dengue shows that early diagnosis and

to testify on the standard of care in dengue fever cases.

management of dengue is critical in reducing the risk of complications and

avoiding further spread of the virus.[96] That Edmer later died of

Although he specializes in pathology, it was established during trial that he

"Hypovolemic Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever

had attended not less than 30 seminars held by the Pediatric Society, had

Stage IV," a severe and fatal form of dengue fever, established the causal

exposure in pediatrics, had been practicing medicine for 16 years, and had

link between Dr. Casumpang's negligence and the injury.

handled not less than 50 dengue related cases.

Based on these considerations, we rule that the respondent successfully
As a licensed medical practitioner specializing in pathology, who had
143 | P a g e

Torts 5

proved the element of causation.

by which the petitioning doctors conducted and performed their medical

profession. SJDH did not control their diagnosis and treatment. Likewise,

Liability of SJDH

no evidence was presented to show that SJDH monitored, supervised, or

directed the petitioning doctors in the treatment and management of

We now discuss the liability of the hospital.

Edmer's case. In these lights, the petitioning doctors were not employees
of SJDH, but were mere independent contractors.

The respondent submits that SJDH should not only be held vicariously
liable for the petitioning doctors' negligence but also for its own negligence.

SJDH is Solidarity Liable Based on The Principle of Agency or

He claims that SJDH fell short of its duty of providing its patients with the

Doctrine of Apparent Authority

necessary facilities and equipment as shown by the following

circumstances:

Despite the absence of employer-employee relationship between SJDH

and the petitioning doctors, SJDH is not free from liability.[98]

(a) SJDH was not equipped with proper paging system;

(b) the number of its doctors is not proportionate to the number of patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmer's oxygen was removed, the medical staff did not
immediately provide him with portable oxygen;

As a rule, hospitals are not liable for the negligence of its independent
contractors. However, it may be found liable if the physician or independent
contractor acts as an ostensible agent of the hospital. This exception is
also known as the "doctrine of apparent authority."[99]

(e) when Edmer was about to be transferred to another hospital, SJDH's

was not ready and had no driver; and
(f) despite Edmer's critical condition, there was no doctor attending to him
from 5:30 p.m. of April 22, to 9:00 a.m. of April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning
doctors are not its employees but are mere consultants and independent
contractors.

The US case of Gilbert v. Sycamore Municipal Hospital[100] abrogated the

hospitals' immunity to vicarious liability of independent contractor
physicians. In that case, the Illinois Supreme Court held that under the
doctrine of apparent authority, hospitals could be found vicariously liable
for the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital
can be held vicariously liable for the negligent acts of a physician providing

We affirm the hospital's liability not on the basis of Article 2180 of the Civil
Code, but on the basis of the doctrine of apparent authority or agency by
estoppel.

care at the hospital, regardless of whether the physician is an independent

contractor, unless the patient knows, or should have known, that the
physician is an independent contractor. The elements of the action have
been set out as follows:

There is No Employer-Employee Relationship Between SJDH and the

Petitioning Doctors

For a hospital to be liable under the doctrine of apparent authority, a

plaintiff must show that: (1) the hospital, or its agent, acted in a manner
that would lead a reasonable person to conclude that the individual

In determining whether an employer-employee relationship exists between

the parties, the following elements must be present: (1) selection and
engagement of services; (2) payment of wages; (3) the power to hire and
fire; and (4) the power to control not only the end to be achieved, but the
means to be used in reaching such an end.[97]

who was alleged to be negligent was an employee or agent of the

hospital; (2) where the acts of the agent create the appearance of
authority, the plaintiff must also prove that the hospital had
knowledge of and acquiesced in them; and (3) the plaintiff acted in
reliance upon the conduct of the hospital or its agent, consistent with
ordinary care and prudence. (Emphasis supplied)

Control, which is the most crucial among the elements, is not present in
this case.

The doctrine was applied in Nogales v. Capitol Medical Center[101] where

this Court, through the ponencia of Associate Justice Antonio T. Carpio,
discussed the two factors in determining hospital liability as follows:

Based on the records, no evidence exists showing that SJDH exercised

any degree of control over the means, methods of procedure and manner

144 | P a g e

Torts 5

The first factor focuses on the hospital's manifestations and is sometimes

impliedly created the appearance of authority.

described as an inquiry whether the hospital acted in a manner which

would lead a reasonable person to conclude that the individual who was

b. Patient's reliance

alleged to be negligent was an employee or agent of the hospital. In this

regard, the hospital need not make express representations to the patient

It involves an inquiry on whether the plaintiff acted in reliance on the

that the treating physician is an employee of the hospital; rather a

conduct of the hospital or its agent, consistent with ordinary care and

representation may be general and implied.

prudence.[104]

xxxx

In Pamperin, the court held that the important consideration in determining

the patient's reliance is: whether the plaintiff is seeking care from the

The second factor focuses on the patient's reliance. It is sometimes

hospital itself or whether the plaintiff is looking to the hospital merely as a

characterized as an inquiry on whether the plaintiff acted in reliance upon

place for his/her personal physician to provide medical care.[105]

the conduct of the hospital or its agent, consistent with ordinary care and
prudence. (Citation omitted)

Thus, this requirement is deemed satisfied if the plaintiff can prove that

In sum, a hospital can be held vicariously liable for the negligent acts of a

he/she relied upon the hospital to provide care and treatment, rather than

physician (or an independent contractor) providing care at the hospital if

upon a specific physician. In this case, we shall limit the determination of

the plaintiff can prove these two factors: first, the hospital's manifestations;

the hospital's apparent authority to Dr. Casumpang, in view of our finding

and second, the patient's reliance.

that Dr. Miranda is not liable for negligence.

a. Hospital's manifestations

SJDH Clothed Dr. Casumpang With Apparent Authority

It involves an inquiry on whether the hospital acted in a manner that would

SJDH impliedly held out and clothed Dr. Casumpang with apparent

lead a reasonable person to conclude that the individual alleged to be

authority leading the respondent to believe that he is an employee or agent

negligent was an employee or agent of the hospital. As pointed out in

of the hospital.

Nogales, the hospital need not make express representations to the patient
that the physician or independent contractor is an employee of the hospital; Based on the records, the respondent relied on SJDH rather than upon Dr.
representation may be general and implied.[102]

Casumpang, to care and treat his son Edmer. His testimony during trial
showed that he and his wife did not know any doctors at SJDH; they also

In Pamperin v. Trinity Memorial Hospital,

[103]

questions were raised on

did not know that Dr. Casumpang was an independent contractor.

"what acts by the hospital or its agent are sufficient to lead a reasonable

They brought their son to SJDH for diagnosis because of their family

person to conclude that the individual was an agent of the hospital." In

doctor's referral. The referral did not specifically point to Dr. Casumpang or

ruling that the hospital's manifestations can be proven without the express

even to Dr. Miranda, but to SJDH.

representation by the hospital, the court relied on several cases from other
jurisdictions, and held that:
(1) the hospital, by providing emergency room care and by failing to advise
patients that they were being treated by the hospital's agent and not its
employee, has created the appearance of agency; and
(2) patients entering the hospital through the emergency room, could
properly assume that the treating doctors and staff of the hospital were
acting on its behalf.

Significantly, the respondent had relied on SJDH's representation of Dr.

Casumpang's authority. To recall, when Mrs. Cortejo presented her
Fortune Care card, she was initially referred to the Fortune Care
coordinator, who was then out of town. She was thereafter referred to Dr.
Casumpang, who is also accredited with Fortune Care. In both instances,
SJDH through its agent failed to advise Mrs. Cortejo that Dr. Casumpang is
an independent contractor.

In this case, the court considered the act of the hospital of holding itself out
as provider of complete medical care, and considered the hospital to have

Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief

145 | P a g e

Torts 5

that such were being provided by SJDH or its employees, agents, or

servants. By referring Dr. Casumpang to care and treat for Edmer,
SJDH impliedly held out Dr. Casumpang, not only as an accredited
member of Fortune Care, but also as a member of its medical staff.
SJDH cannot now disclaim liability since there is no showing that Mrs.
Cortejo or the respondent knew, or should have known, that Dr.
Casumpang is only an independent contractor of the hospital. In this case,
estoppel has already set in.

We also stress that Mrs. Cortejo's use of health care plan (Fortune Care)
did not affect SJDH's liability. The only effect of the availment of her
Fortune Care card benefits is that her choice of physician is limited only to
physicians who are accredited with Fortune Care. Thus, her use of health
care plan in this case only limited the choice of doctors (or coverage of
services, amount etc.) and not the liability of doctors or the hospital.

WHEREFORE, premises considered, this Court PARTLY GRANTS the

consolidated petitions. The Court finds Dr. Noel Casumpang and San Juan
de Dios Hospital solidarity liable for negligent medical practice. We SET
ASIDE the finding of liability as to Dr. Ruby Sanga-Miranda. The amounts
of P45,000.00 as actual damages and P500,000.00 as moral damages
should each earn legal interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial court. The Court
AFFIRMS the rest of the Decision dated October 29, 2004 and the
Resolution dated January 12, 2006 in CA-G.R. CV No. 56400.

SO ORDERED.

146 | P a g e

Torts 5

MARIANO C. MENDOZA AND ELVIRA LIM, PETITIONERS, VS.

As a result of the incident, Perez, as well as the helpers on board the Isuzu

SPOUSES LEONORA J. GOMEZ AND GABRIEL V. GOMEZ

truck, namely Melchor V. Anla (Anla), Romeo J. Banca (Banca), and

RESPONDENTS.

Jimmy Repisada (Repisada), sustained injuries necessitating medical

treatment amounting to P11,267.35, which amount was shouldered by

DECISION

respondents. Moreover, the Isuzu truck sustained extensive damages on

its cowl, chassis, lights and steering wheel, amounting to P142,757.40. [14]

PEREZ, J.:
Additionally, respondents averred that the mishap deprived them of a daily
Assailed in the present appeal by certiorari is the Decision[1] dated 29

income of P1,000.00. Engaged in the business of buying plastic scraps and

September 2003 of the Special Fourth Division of the Court of Appeals

delivering them to recycling plants, respondents claimed that the Isuzu

(CA) in CA-G.R. CV No. 71877, which affirmed with modification the

truck was vital in the furtherance of their business.

[2]

Decision dated 31 January 2001 of the Regional Trial Court (RTC),

Branch 172, Valenzuela City in Civil Case No. 5352-V-97, and which

For their part, petitioners capitalized on the issue of ownership of the bus in

effectively allowed the award of actual, moral, and exemplary damages, as

question. Respondents argued that although the registered owner was Lim,

well as attorney's fees and costs of the suit in favor of respondent Spouses

the actual owner of the bus was SPO1 Cirilo Enriquez (Enriquez), who had

Leonora and Gabriel Gomez (respondents).

the bus attached with Mayamy Transportation Company (Mayamy

Transport) under the so-called kabit system. Respondents then

Antecedent Facts

impleaded both Lim and Enriquez.

On 7 March 1997, an Isuzu Elf truck (Isuzu truck) with plate number UAW

Petitioners, on the other hand, presented Teresita Gutierrez (Gutierrez),

582,[3] owned by respondent Leonora J. Gomez (Leonora)[4] and driven by

whose testimony was offered to prove that Mayamy Bus or Mayamy

Antenojenes Perez (Perez),[5] was hit by a Mayamy Transportation bus

Transport is a business name registered under her name, and that such

(Mayamy bus) with temporary plate number 1376-1280,[6] registered under

business is a sole proprietorship. Such was presented by petitioners to

[7]

the name of petitioner Elvira Lim (Lim) and driven by petitioner Mariano

rebut the allegation of respondents that Mayamy Transport is a

C. Mendoza (Mendoza).[8]

corporation;[15] and to show, moreover, that although Gutierrez is the sole

proprietor of Mayamy Transport, she was not impleaded by respondents in

Owing to the incident, an Information for reckless imprudence resulting in

the case at bar.[16]

damage to property and multiple physical injuries was filed against

Mendoza.[9] Mendoza, however, eluded arrest, thus, respondents filed a

After weighing the evidence, the RTC found Mendoza liable for direct

separate complaint for damages against Mendoza and Lim, seeking actual

personal negligence under Article 2176 of the Civil Code, and it also found

damages, compensation for lost income, moral damages, exemplary

Lim vicariously liable under Article 2180 of the same Code.

damages, attorneys fees and costs of the suit.

[10]

This was docketed as

Civil Case No. 5352-V-97.

As regards Lim, the RTC relied on the Certificate of Registration issued by

the Land Transportation Office on 9 December 1996[17] in concluding that

According to PO1 Melchor F. Rosales (PO1 Rosales), investigating officer

she is the registered owner of the bus in question. Although actually owned

of the case, at around 5:30 a.m., the Isuzu truck, coming from Katipunan

by Enriquez, following the established principle in transportation law, Lim,

Road and heading towards E. Rodriguez, Sr. Avenue, was travelling along

as the registered owner, is the one who can be held liable.

the downward portion of Boni Serrano Avenue when, upon reaching the
corner of Riviera Street, fronting St. Ignatius Village, its left front portion
was hit by the Mayamy bus.

[11]

Thus, the RTC disposed of the case as follows:

According to PO1 Rosales, the Mayamy

bus, while traversing the opposite lane, intruded on the lane occupied by

WHEREFORE, judgment is hereby rendered in favor of the [respondents]

the Isuzu truck.[12]

and against the [petitioners]:

PO1 Rosales also reported that Mendoza tried to escape by speeding

1.

Ordering the [petitioners] except Enriquez to pay

away, but he was apprehended in Katipunan Road corner C. P. Garcia

[respondents], jointly and severally, the costs of repair

Avenue by one Traffic Enforcer Galante and a security guard of St. Ignatius

of the damaged vehicle in the amount of P142,757.40;

[13]

Village.

2.

Ordering the defendants except Enriquez to pay

[respondents], jointly and severally, the amount of
147 | P a g e

Torts 5

P1,000.00 per day from March 7, 1997 up to

which is founded on fault or negligence.

November 1997 representing the unrealized income

3.

4.

5.

of the [respondents] when the incident transpired up

b. Exemplary damages in spite of the fact that there is

to the time the damaged Isuzu truck was repaired;

no finding that the vehicular accident was due to

Ordering the [petitioners] except Enriquez to pay

petitioner-drivers gross negligence to be entitled

[respondents], jointly and severally, the amount of

thereto pursuant to Article 2231 of the New Civil Code

P100,000.00 as moral damages, plus a separate

and pertinent decisions of the Supreme Court to that

amount of P50,000.00 as exemplary damages;

effect. The factual basis of the court a quo that the

Ordering the [petitioners] except Enriquez to pay

act of the driver of the bus in attempting to escape

[respondents], jointly and severally, the amount of

after causing the accident in wanton disregard of the

P50,000.00 as attorneys fees;

consequences of his negligent act is such gross

Ordering the [petitioners] except Enriquez to pay

[respondents] the costs of suit.

negligence that justifies an award of exemplary

[18]

damages is an act after the fact which is not within

the contemplation of Article 2231 of the New Civil
Code.

Displeased, petitioners appealed to the CA, which appeal was docketed as

CA-G.R. CV No. 71877. After evaluating the damages awarded by the

c. Attorneys fees in spite of the fact that the assailed

RTC, such were affirmed by the CA with the exception of the award of

decisions of the trial court and the court a quo are

unrealized income which the CA ordered deleted, viz:

bereft with jurisdictions for the award of attorneys

fees pursuant to the pertinent decisions of the

WHEREFORE, premises considered, the appeal is PARTLY GRANTED.

Supreme Court on the matter and provision Article

The judgment of the Regional Trial Court of Valenzuela City, Branch 172

2208 of the New Civil Code. The court a quo

dated January 31, 2001, is MODIFIED, in that the award of P1,000.00 per

erroneously applied the decision of the Supreme

day from March 1997 up to November 1997 representing unrealized

Court in Baas, Jr. vs. Court of Appeals, 325 SCRA

income is DELETED. The award of P142,757.40 for the cost of repair of

259.

the damaged vehicle, the award of P100,000.00 as moral damages, the

The Courts Ruling

award of P50,000.00 as exemplary damages, the award of P50,000.00 as

attorneys fees and the costs of the suit are hereby MAINTAINED.

[19]

The petition is partially meritorious.

The Present Petition
Respondents anchor their claim for damages on Mendozas negligence,
Unsatisfied with the CA ruling, petitioners filed an appeal by certiorari
before the Court, raising the following issues:

banking on Article 2176 of the Civil Code, to wit:

[20]

Whoever by act or omission causes damage to another, there being fault

1.

The court a quo has decided questions of substance

or negligence, is obliged to pay for the damage done. Such fault or

in a way not in accord with law or with the applicable

negligence, if there is no pre-existing contractual relation between the

decisions of the Supreme Court when it awarded:

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

Chapter.

a. Moral damages in spite of the fact that the

[respondents] cause of action is clearly based on

In impleading Lim, on the other hand, respondents invoke the latters

quasi-delict and [respondents] did not sustain

vicarious liability as espoused in Article 2180 of the same Code:

physical injuries to be entitled thereto pursuant to

Article 2219 (2) of the New Civil Code and pertinent

The obligation imposed by Article 2176 is demandable not only for ones

decisions of the Supreme Court to that effect. The

own acts or omissions, but also for those of persons for whom one is

court a quo erroneously concluded that the driver

responsible.

acted in bad faith and erroneously applied the

provision of Article 21 of the same code to justify the

xxxx

award for bad faith is not consistent with quasi-delict

148 | P a g e

Torts 5

Employers shall be liable for the damages caused by their employees and

created by virtue of which the injured person acquires a right to be

household helpers acting within the scope of their assigned tasks, even

indemnified and the person causing the damage is charged with the

though the former are not engaged in any business of industry.

corresponding duty of repairing the damage. The reason for this is found in
the obvious truth that man should subordinate his acts to the precepts of

The first question to address, then, is whether or not Mendozas negligence prudence and if he fails to observe them and causes damage to another,
was duly proven. Negligence is defined as the failure to observe for the

he must repair the damage.[24] His negligence having caused the damage,

protection of the interests of another person, that degree of care,

Mendoza is certainly liable to repair said damage.

precaution and vigilance which the circumstances justly demand, whereby

such other person suffers injury.[21]

Additionally, Mendozas employer may also be held liable under the

doctrine of vicarious liability or imputed negligence. Under such doctrine, a

As found by the RTC, and affirmed by the CA, Mendoza was negligent in

person who has not committed the act or omission which caused damage

driving the subject Mayamy bus, as demonstrated by the fact that, at the

or injury to another may nevertheless be held civilly liable to the latter

time of the collision, the bus intruded on the lane intended for the Isuzu

either directly or subsidiarily under certain circumstances.[25] In our

truck. Having encroached on the opposite lane, Mendoza was clearly in

jurisdiction, vicarious liability or imputed negligence is embodied in Article

violation of traffic laws. Article 2185 of the Civil Code provides that unless

2180 of the Civil Code and the basis for damages in the action under said

there is proof to the contrary, it is presumed that a person driving a motor

article is the direct and primary negligence of the employer in the selection

vehicle has been negligent if at the time of the mishap, he was violating

or supervision, or both, of his employee.[26]

any traffic regulation. In the case at bar, Mendozas violation of traffic laws
In the case at bar, who is deemed as Mendozas employer? Is it Enriquez,

was the proximate cause of the harm.

the actual owner of the bus or Lim, the registered owner of the bus?
Proximate cause is defined as that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the

In Filcar Transport Services v. Espinas,[27] we held that the registered

injury, and without which the result would not have occurred. And more

owner is deemed the employer of the negligent driver, and is thus

comprehensively, the proximate legal cause is that acting first and

vicariously liable under Article 2176, in relation to Article 2180, of the Civil

producing the injury, either immediately or by setting other events in

Code. Citing Equitable Leasing Corporation v. Suyom,[28] the Court ruled

motion, all constituting a natural and continuous chain of events, each

that in so far as third persons are concerned, the registered owner of the

having a close causal connection with its immediate predecessor, the final

motor vehicle is the employer of the negligent driver, and the actual

event in the chain immediately effecting the injury as a natural and

employer is considered merely as an agent of such owner. Thus, whether

probable result of the cause which first acted, under such circumstances

there is an employer-employee relationship between the registered owner

that the person responsible for the first event should, as an ordinary

and the driver is irrelevant in determining the liability of the registered

prudent and intelligent person, have reasonable ground to expect at the

owner who the law holds primarily and directly responsible for any

moment of his act or default that an injury to some person might probably

accident, injury or death caused by the operation of the vehicle in the

result therefrom.

[22]

streets and highways.[29]

The evidence on record shows that before the collision, the Isuzu truck was As early as Erezo v. Jepte,[30] the Court, speaking through Justice Alejo
in its rightful lane, and was even at a stop, having been flagged down by a
security guard of St. Ignatius Village.

[23]

The mishap occurred when the

Labrador summarized the justification for holding the registered owner

directly liable, to wit:

Mayamy bus, travelling at a fast speed as shown by the impact of the

collision, and going in the opposite direction as that of the Isuzu truck,

x x x The main aim of motor vehicle registration is to identify the owner so

encroached on the lane rightfully occupied by said Isuzu truck, and caused

that if any accident happens, or that any damage or injury is caused by the

the latter to spin, injuring Perez, Anla, Banca, and Repisada, and

vehicles on the public highways, responsibility therefore can be fixed on a

considerably damaging the Isuzu truck.

definite individual, the registered owner. Instances are numerous where

vehicle running on public highways caused accidents or injuries to

Having settled the fact of Mendozas negligence, then, the next question

pedestrians or other vehicles without positive identification of the owner or

that confronts us is who may be held liable. According to Manresa, liability

drivers, or with very scant means of identification. It is to forestall these

for personal acts and omissions is founded on that indisputable principle of

circumstances, so inconvenient or prejudicial to the public, that the motor

justice recognized by all legislations that when a person by his act or

vehicle registration is primarily ordained, in the interest of the determination

omission causes damage or prejudice to another, a juridical relation is

of persons responsible for damages or injuries caused on public highways.

149 | P a g e

Torts 5

are those awarded in satisfaction of, or in recompense for, loss or injury

One of the principal purposes of motor vehicles legislation is identification

sustained. They simply make good or replace the loss caused by the

of the vehicle and of the operator, in case of accident; and another is that

wrong.[34]

the knowledge that means of detection are always available may act as a
deterrent from lax observance of the law and of the rules of conservative

Article 2202 of the Civil Code provides that in crimes and quasi- delicts, the

and safe operation. Whatever purpose there may be in these statutes, it is

defendant shall be liable for all damages which are the natural and

subordinate at the last to the primary purpose of rendering it certain that

probable consequences of the act or omission complained of. It is not

the violator of the law or of the rules of safety shall not escape because of

necessary that such damages have been foreseen or could have

lack of means to discover him. The purpose of the statute is thwarted, and

reasonably been foreseen by the defendant. Article 2199 of the same

the displayed number becomes a snare and delusion, if courts will

Code, however, sets the limitation that, except as provided by law or by

entertain such defenses as that put forward by appellee in this case. No

stipulation, one is entitled to an adequate compensation only for such

responsible person or corporation could be held liable for the most

pecuniary loss suffered by him as he has duly proved. As such, to warrant

outrageous acts of negligence, if they should be allowed to place a

an award of actual or compensatory damages, the claimant must prove

middleman between them and the public, and escape liability by the

that the damage sustained is the natural and probable consequences of

manner in which they recompense their servants.[31]

the negligent act and, moreover, the claimant must adequately prove the
amount of such damage.

Generally, when an injury is caused by the negligence of a servant or

employee, there instantly arises a presumption of law that there was

In the case at bar, the RTC, basing on the receipts submitted by

negligence on the part of the master or employer either in the selection of

respondents and which receipts petitioners had the opportunity to examine,

the servant or employee (culpa in eligiendo) or in the supervision over him

found that the total repairs on the Isuzu truck amounted to P142,757.40,

after the selection (culpa vigilando), or both. The presumption is juris

and that the full hospitalization and medical expenses of Perez, Anla,

tantum and not juris et de jure; consequently, it may be rebutted.

Banca, and Repisada amounted to P11,267.35. As such, these are the

Accordingly, the general rule is that if the employer shows to the

amounts that respondents are entitled to as actual and compensatory

satisfaction of the court that in the selection and supervision of his

damages.

employee he has exercised the care and diligence of a good father of a

family, the presumption is overcome and he is relieved of liability.[32]

Although respondents alleged in their complaint that the damage to their

However, with the enactment of the motor vehicle registration law, the

Isuzu truck caused them the loss of a daily income of P1,000.00, such

defenses available under Article 2180 of the Civil Code - that the employee

claim was not duly substantiated by any evidence on record, and thus

acts beyond the scope of his assigned task or that it exercised the due

cannot be awarded in their favor.

diligence of a good father of a family to prevent damage are no longer

available to the registered owner of the motor vehicle, because the motor
vehicle registration law, to a certain extent, modified Article 2180.

[33]

Moral Damages. Moral damages are awarded to enable the injured party
to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he has undergone, by reason of the defendant's culpable

As such, there can be no other conclusion but to hold Lim vicariously liable

action.[35]

with Mendoza.
In prayers for moral damages, however, recovery is more an exception
This does not mean, however, that Lim is left without any recourse against

rather than the rule. Moral damages are not meant to be punitive but are

Enriquez and Mendoza. Under the civil law principle of unjust enrichment,

designed to compensate and alleviate the physical suffering, mental

the registered owner of the motor vehicle has a right to be indemnified by

anguish, fright, serious anxiety, besmirched reputation, wounded feelings,

the actual employer of the driver; and under Article 2181 of the Civil Code,

moral shock, social humiliation, and similar harm unjustly caused to a

whoever pays for the damage caused by his dependents or employees

person. To be entitled to such an award, the claimant must satisfactorily

may recover from the latter what he has paid or delivered in satisfaction of

prove that he has suffered damages and that the injury causing it has

the claim.

sprung from any of the cases listed in Articles 2219 and 2220 of the Civil
Code. Moreover, the damages must be shown to be the proximate result of

Having identified the persons liable, our next question is what may be

a wrongful act or omission. The claimant must thus establish the factual

awarded.

basis of the damages and its causal tie with the acts of the defendant.[36]

Actual or Compensatory Damages. Actual or compensatory damages

In fine, an award of moral damages calls for the presentation of 1)

150 | P a g e

Torts 5

evidence of besmirched reputation or physical, mental or psychological

the following elements: (1) There is an act which is legal; (2) but which is

suffering sustained by the claimant; 2) a culpable act or omission factually

contrary to morals, good custom, public order, or public policy; (3) and it is

established; 3) proof that the wrongful act or omission of the defendant is

done with intent to injure.[43] In the present case, it can hardly be said that

the proximate cause of the damages sustained by the claimant; and 4) the

Mendozas negligent driving and violation of traffic laws are legal acts.

proof that the act is predicated on any of the instances expressed or

Moreover, it was not proven that Mendoza intended to injure Perez, et al.

envisioned by Article 2219 and Article 2220 of the Civil Code.

[37]

Thus, Article 21 finds no application to the case at bar.

A review of the complaint and the transcript of stenographic notes yields

All in all, we find that the RTC and the CA erred in granting moral damages

the pronouncement that respondents neither alleged nor offered any

to respondents.

evidence of besmirched reputation or physical, mental or psychological

suffering incurred by them. All that Leonora and her counsel had to say on

Exemplary Damages. Article 2229 of the Civil Code provides that

the matter of damages other than actual or compensatory damages is

exemplary or corrective damages are imposed, by way of example or

this:

[38]

correction for the public good, in addition to moral, temperate, liquidated or

compensatory damages. Article 2231 of the same Code further states that

Q: Did you ever spend covering attorneys fees?

in quasi-delicts, exemplary damages may be granted if the defendant acted

A: Yes, sir. P50,000.00.

with gross negligence.

Q: Aside from the actual damage that you have mentioned x x x, how much
more would you like this Court to award you by way of moral damages?

Our jurisprudence sets certain conditions when exemplary damages may

A: P100,000.00, sir.

be awarded: First, they may be imposed by way of example or correction

Q: How about exemplary damages?

only in addition, among others, to compensatory damages, and cannot be

A: P50,000.00, sir.

recovered as a matter of right, their determination depending upon the

Q: What happened to you, what did you feel when the defendants failed to

amount of compensatory damages that may be awarded to the claimant.

immediately repair your vehicle that was damaged Madam Witness?

Second, the claimant must first establish his right to moral, temperate,

A: I have incurred expenses and I was forced to apply for a loan, sir.

liquidated or compensatory damages. Third, the wrongful act must be

accompanied by bad faith, and the award would be allowed only if the

In Kierulf v. CA,

[39]

we observed that this Court cannot remind the bench

and the bar often enough that in order that moral damages may be

guilty party acted in a wanton, fraudulent, reckless, oppressive or

malevolent manner.[44]

awarded, there must be pleading and proof of moral suffering, mental

anguish, fright and the like. Citing Francisco v. GSIS,[40] the Court held that

In motor vehicle accident cases, exemplary damages may be awarded

there must be clear testimony on the anguish and other forms of mental

where the defendants misconduct is so flagrant as to transcend simple

suffering. Thus, if the plaintiff fails to take the witness stand and testify as

negligence and be tantamount to positive or affirmative misconduct rather

to his social humiliation, wounded feelings and anxiety, moral damages

than passive or negative misconduct. In characterizing the requisite

cannot be awarded.

positive misconduct which will support a claim for punitive damages, the
courts have used such descriptive terms as willful, wanton, grossly

Moreover, respondents were not able to show that their claim properly falls

negligent, reckless, or malicious, either alone or in combination.[45]

under Articles 2219 and 2220 of the Civil Code. Respondents cannot rely
on Article 2219 (2) of the Civil Code which allows moral damages in quasi-

Gross negligence is the absence of care or diligence as to amount to a

delicts causing physical injuries because in physical injuries, moral

reckless disregard of the safety of persons or property. It evinces a

damages are recoverable only by the injured party,[41] and in the case at

thoughtless disregard of consequences without exerting any effort to avoid

bar, herein respondents were not the ones who were actually injured.

them.[46]

In B.F. Metal (Corp.) v. Sps. Lomotan, et al.,[42] the Court, in a claim for

In the case at bar, having established respondents right to compensatory

damages based on quasi-delict causing physical injuries, similarly

damages, exemplary damages are also in order, given the fact that

disallowed an award of moral damages to the owners of the damaged

Mendoza was grossly negligent in driving the Mayamy bus. His act of

vehicle, when neither of them figured in the accident and sustained injuries. intruding or encroaching on the lane rightfully occupied by the Isuzu truck
shows his reckless disregard for safety.
Neither can respondents rely on Article 21 of the Civil Code as the RTC
erroneously did. Article 21 deals with acts contra bonus mores, and has

In Bao v. Bachelor Express, Inc., et al.,[47] where an erring bus, in the

151 | P a g e

Torts 5

process of overtaking a jeepney, also encroached on the opposite lane,

Following established jurisprudence,[51] however, the CA should have

and consequently collided with a dump truck, the Court held the driver of

disallowed on appeal said award of attorneys fees as the RTC failed to

the bus grossly negligent and affirmed the award of exemplary damages.

substantiate said award.

Attorneys Fees. Article 2208 of the Civil Code enumerates the instances

Costs of suit. The Rules of Court provide that, generally, costs shall be

when attorneys fees may be recovered:

allowed to the prevailing party as a matter of course, thus:[52]

Art. 2208. In the absence of stipulation, attorneys fees and expenses of

litigation, other than judicial costs, cannot be recovered, except:

Section 1. Costs ordinarily follow results of suit.- Unless otherwise provided

in these rules, costs shall be allowed to the prevailing party as a matter of

(1) When exemplary damages are awarded;

(2) When the defendants act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;

course, but the court shall have power, for special reasons, to adjudge that
either party shall pay the costs of an action, or that the same be divided, as
may be equitable. No costs shall be allowed against the Republic of the
Philippines, unless otherwise provided by law.

(4) In case of a clearly unfounded civil action or proceeding against the

plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to

In the present case, the award of costs of suit to respondents, as the

prevailing party, is in order.

satisfy the plaintiffs valid and demandable claim;

(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and
skilled workers;
(8) In actions for indemnity under workmens compensation and
employers liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;

Interests. Interest by way of damages has been defined as interest

allowed in actions for breach of contract or tort for the unlawful detention of
money already due. This type of interest is frequently called moratory
interest. Interest as a part of damage, is allowed, not by application of
arbitrary rules, but as a result of the justice of the individual case and as
compensation to the injured party.[53]

(10)When at least double judicial costs are awarded;

(11)In any other case where the court deems it just and equitable that
attorneys fees and expenses of litigation should be recovered;

The legal provision on interests in quasi-delicts is Article 2211 of the Civil

Code which provides that in crimes and quasi-delicts, interest as part of the
damage, may, in a proper case, be adjudicated in the discretion of the

In all cases, the attorneys fees and expenses of litigation must be

court.

reasonable.
Generally, interest is allowed as a matter of right for failure to pay
From the very opening sentence of Article 2208 of the Civil Code, it is
clearly intended to retain the award of attorneys fees as the exception in
our law, as the general rule remains that attorneys fees are not
recoverable in the absence of a stipulation thereto, the reason being that it

liquidated claims when due.[54] For unliquidated claims, however, Article

2213 of the Civil Code provides that interest cannot be recovered upon
unliquidated claims or damages, except when the demand can be
established with reasonable certainty.

is not sound policy to set a premium on the right to litigate.[48]

In the case at bar, although the award of exemplary damages is
As such, in Spouses Agustin v. CA,[49] we held that, the award of attorneys
fees being an exception rather than the general rule, it is necessary for the
court to make findings of facts and law that would bring the case within the
exception and justify the grant of such award. Thus, the reason for the
award of attorneys fees must be stated in the text of the courts decision;
otherwise, if it is stated only in the dispositive portion of the decision, the
same must be disallowed on appeal.

unliquidated in the sense that petitioners cannot know for sure, before
judgment, the exact amount that they are required to pay to respondents,
the award of actual or compensatory damages, however, such as the truck
repairs and medical expenses, is arguably liquidated in that they can be
measured against a reasonably certain standard.[55] Moreover, justice
would seem to require that the delay in paying for past losses which can be
made reasonably certain should be compensated through an award of
interest.[56]

In the case at bar, the RTC Decision had nil discussion on the propriety of
attorneys fees, and it merely awarded such in the dispositive. The CA
Decision, on the other hand, merely stated that the award of attorneys fees

WHEREFORE, premises considered, the Court Resolves to PARTIALLY

GRANT the appeal by certiorari, as follows:

is merited as such is allowed when exemplary damages are awarded. [50]

152 | P a g e

Torts 5

1) DECLARE Mariano Mendoza and Elvira Lim solidarily liable to

respondent Spouses Leonora and Gabriel Gomez ;
2) MAINTAIN the award of actual or compensatory damages in the
amount of Pl42,757.40 for the repair of the Isuzu Elf truck, with legal
interest beginning 31 January 2001 until fully paid;
3) GRANT additional actual or compensatory damages in the amount of
P11,267.35 for the medical expenses shouldered by respondent
Spouses Leonora and Gabriel Gomez, with legal interest beginning 31
January 2001 until fully paid;
4) DELETE the award of moral damages;
5) MAINTAIN the award of exemplary damages at P50,000.00;
6) DELETE the award of attorney's fees; and
7) MAINTAIN the award of costs of suit.

SO ORDERED.

153 | P a g e

Torts 5

R TRANSPORT CORPORATION, PETITIONER, VS. LUISITO G. YU,

RESPONDENT.

certificate of registration and prove who the actual owner is in order to

enforce a right of action. Thus, the trial court ordered the payment of
damages in its Decision[6] dated June 3, 2004, the dispositive portion of

DECISION

PERALTA, J.:

which reads:

WHEREFORE, foregoing premises considered, judgment is hereby

rendered ordering defendants Rizal Transport and Metro Manila Transport

Before the Court is a petition for review on certiorari under Rule 45 of the

Corporation to be primarily and solidarily liable and defendant Antonio

Rules of Court seeking to reverse and set aside the Decision[1] and

Parraba Gimena subsidiarily liable to plaintiff Luisito Yu as follows:

Resolution,[2] dated September 9, 2005 and August 8, 2006, respectively,

of the Court of Appeals (CA) in CA-G.R. CV No. 84175.

1.

Actual damages in the amount of Php78,357.00

subject to interest at the legal rate from the filing of the

The antecedent facts are as follows:

complaint until fully paid;

2.

Loss of income in the amount of Php500,000.00;

At around 8:45 in the morning of December 12, 1993, Loreta J. Yu, after

3.

Moral damages in the amount of P150,000.00;

having alighted from a passenger bus in front of Robinsons Galleria along

4.

Exemplary damages in the amount of P20,000.00;

the north-bound lane of Epifanio de los Santos Avenue (EDSA), was hit

5.

Attorneys fees in the amount of P10,000.00; and

and run over by a bus driven by Antonio P. Gimena, who was then

6.

Costs of suit.[7]

employed by petitioner R Transport Corporation. Loreta was immediately

rushed to Medical City Hospital where she was pronounced dead on
arrival.[3]

On September 9, 2005, the CA affirmed the Decision of the RTC with

modification that defendant Antonio Gimena is made solidarily liable for the

On February 3, 1994, the husband of the deceased, respondent Luisito G.

damages caused to respondent. According to the appellate court,

Yu, filed a Complaint for damages before the Regional Trial Court (RTC) of

considering that the negligence of Antonio Gimena was sufficiently proven

Makati City against petitioner R Transport, Antonio Gimena, and Metro

by the records of the case, and that no evidence of whatever nature was

Manila Transport Corporation (MMTC) for the death of his wife. MMTC

presented by petitioner to support its defense of due diligence in the

denied its liability reasoning that it is merely the registered owner of the bus selection and supervision of its employees, petitioner, as the employer of
involved in the incident, the actual owner, being petitioner R Transport. [4] It

Gimena, may be held liable for the damage caused. The CA noted that the

explained that under the Bus Installment Purchase Program of the

fact that petitioner is not the registered owner of the bus which caused the

government, MMTC merely purchased the subject bus, among several

death of the victim does not exculpate it from liability.[8] Thereafter,

others, for resale to petitioner R Transport, which will in turn operate the

petitioners Motion for Reconsideration was further denied by the CA in its

same within Metro Manila. Since it was not actually operating the bus

Resolution[9] dated August 8, 2006.

which killed respondents wife, nor was it the employer of the driver thereof,
MMTC alleged that the complaint against it should be dismissed.[5] For its

Hence, the present petition.

part, petitioner R Transport alleged that respondent had no cause of action

against it for it had exercised due diligence in the selection and supervision

Petitioner essentially invokes the following ground to support its petition:

of its employees and drivers and that its buses are in good condition.
Meanwhile, the driver Antonio Gimena was declared in default for his

I.

failure to file an answer to the complaint.

THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF
After trial on the merits, wherein the parties presented their respective

THE REGIONAL TRIAL COURT FINDING PETITIONER LIABLE FOR

witnesses and documentary evidence, the trial court rendered judgment in

THE DAMAGES CAUSED BY THE NEGLIGENCE OF ITS EMPLOYEE,

favor of respondent Yu ruling that petitioner R Transport failed to prove that WHICH WAS NOT SUPPORTED BY THE EVIDENCE ON RECORD.
it exercised the diligence required of a good father of a family in the
selection and supervision of its driver, who, by its negligence, ran over the

Petitioner insists that the CA and the RTC were incorrect in ruling that its

deceased resulting in her death. It also held that MMTC should be held

driver was negligent for aside from the mere speculations and

solidarily liable with petitioner R Transport because it would unduly

uncorroborated testimonies of the police officers on duty at the time of the

prejudice a third person who is a victim of a tort to look beyond the

accident, no other evidence had been adduced to prove that its driver was
154 | P a g e

Torts 5

driving in a reckless and imprudent manner. It asserts that contrary to the

reckless speed. As testified by the police officer on duty at the time of the

findings of the courts below, the bus from which the victim alighted is

incident[16] and indicated in the Autopsy Report,[17] not only were the

actually the proximate cause of the victims death for having unloaded its

deceaseds clothes ripped off from her body, her brain even spewed out

passengers on the lane where the subject bus was traversing. Moreover,

from her skull and spilled over the road. Indeed, this Court is not prepared

petitioner reiterates its argument that since it is not the registered owner of

to believe petitioners contention that its bus was travelling at a normal

the bus which bumped the victim, it cannot be held liable for the damage

speed in preparation for a full stop in view of the fatal injuries sustained by

caused by the same.

the deceased. Moreover, the location wherein the deceased was hit and
run over further indicates Gimenas negligence. As borne by the records,

We disagree.

the bus driven by Gimena bumped the deceased in a loading and

unloading area of a commercial center. The fact that he was approaching

Time and again, it has been ruled that whether a person is negligent or not

such a busy part of EDSA should have already cautioned the driver of the

is a question of fact which this Court cannot pass upon in a petition for

bus. In fact, upon seeing that a bus has stopped beside his lane should

review on certiorari, as its jurisdiction is limited to reviewing errors of law.

[10]

This Court is not bound to weigh all over again the evidence adduced by

have signalled him to step on his brakes to slow down for the possibility
that said bus was unloading its passengers in the area. Unfortunately, he

the parties, particularly where the findings of both the trial and the appellate did not take the necessary precaution and instead, drove on and bumped
courts on the matter of petitioners negligence coincide. As a general rule,

the deceased despite being aware that he was traversing a commercial

therefore, the resolution of factual issues is a function of the trial court,

center where pedestrians were crossing the street. Ultimately, Gimena

whose findings on these matters are binding on this Court, more so where

should have observed due diligence of a reasonably prudent man by

these have been affirmed by the Court of Appeals,[11]save for the following

slackening his speed and proceeding cautiously while passing the area.

exceptional and meritorious circumstances: (1) when the factual findings of

the appellate court and the trial court are contradictory; (2) when the

Under Article 2180[18] of the New Civil Code, employers are liable for the

findings of the trial court are grounded entirely on speculation, surmises or

damages caused by their employees acting within the scope of their

conjectures; (3) when the lower courts inference from its factual findings is

assigned tasks. Once negligence on the part of the employee is

manifestly mistaken, absurd or impossible; (4) when there is grave abuse

established, a presumption instantly arises that the employer was remiss in

of discretion in the appreciation of facts; (5) when the findings of the

the selection and/or supervision of the negligent employee. To avoid

appellate court go beyond the issues of the case, or fail to notice certain

liability for the quasi-delict committed by its employee, it is incumbent upon

relevant facts which, if properly considered, will justify a different

the employer to rebut this presumption by presenting adequate and

conclusion; (6) when there is a misappreciation of facts; (7) when the

convincing proof that it exercised the care and diligence of a good father of

findings of fact are themselves conflicting; and (8) when the findings of fact

a family in the selection and supervision of its employees.[19]

are conclusions without mention of the specific evidence on which they are
based, are premised on the absence of evidence, or are contradicted by

Unfortunately, however, the records of this case are bereft of any proof

[12]

evidence on record.

showing the exercise by petitioner of the required diligence. As aptly

observed by the CA, no evidence of whatever nature was ever presented

After a review of the records of the case, we find no cogent reason to

depicting petitioners due diligence in the selection and supervision of its

reverse the rulings of the courts below for none of the aforementioned

driver, Gimena, despite several opportunities to do so. In fact, in its

exceptions are present herein. Both the trial and appellate courts found

petition, apart from denying the negligence of its employee and imputing

driver Gimena negligent in hitting and running over the victim and ruled that the same to the bus from which the victim alighted, petitioner merely
his negligence was the proximate cause of her death. Negligence has been reiterates its argument that since it is not the registered owner of the bus
defined as "the failure to observe for the protection of the interests of

which bumped the victim, it cannot be held liable for the damage caused by

another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.
Verily, foreseeability is the fundamental test of negligence.

[14]

the same. Nowhere was it even remotely alleged that petitioner had
[13]

It is the

omission to do something which a reasonable man, guided by those

exercised the required diligence in the selection and supervision of its

employee. Because of this failure, petitioner cannot now avoid liability for
the quasi-delict committed by its negligent employee.

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.

[15]

At this point, it must be noted that petitioner, in its relentless attempt to

evade liability, cites our rulings in Vargas v. Langcay[20] and Tamayo v.
Aquino[21] insisting that it should not be held solidarily liable with MMTC for

In this case, the records show that driver Gimena was clearly running at a

it is not the registered owner of the bus which killed the deceased.
155 | P a g e

Torts 5

However, this Court, in Jereos v. Court of Appeals, et al.,[22] rejected such

responsibility is not solidary as held by the Court of Appeals.

contention in the following wise:

The question that poses, therefore, is how should the holder of the
Finally, the petitioner, citing the case of Vargas vs. Langcay,

certificate of public convenience, Tamayo, participate with his transferee,

contends that it is the registered owner of the vehicle, rather than the

operator Rayos, in the damages recoverable by the heirs of the deceased

actual owner, who must be jointly and severally liable with the driver

passenger, if their liability is not that of Joint tortfeasors in accordance with

of the passenger vehicle for damages incurred by third persons as a

Article 2194 of the Civil Code. The following considerations must be borne

consequence of injuries or death sustained in the operation of said

in mind in determining this question. As Tamayo is the registered owner of

vehicle.

the truck, his responsibility to the public or to any passenger riding in the
vehicle or truck must be direct, for the reasons given in our decision in the

The contention is devoid of merit. While the Court therein ruled that

case of Erezo vs. Jepte, supra, as quoted above. But as the transferee,

the registered owner or operator of a passenger vehicle is jointly and

who operated the vehicle when the passenger died, is the one directly

severally liable with the driver of the said vehicle for damages

responsible for the accident and death he should in turn be made

incurred by passengers or third persons as a consequence of injuries

responsible to the registered owner for what the latter may have been

or death sustained in the operation of the said vehicle, the Court did

adjudged to pay. In operating the truck without transfer thereof having been

so to correct the erroneous findings of the Court of Appeals that the

approved by the Public Service Commission, the transferee acted merely

liability of the registered owner or operator of a passenger vehicle is

as agent of the registered owner and should be responsible to him (the

merely subsidiary, as contemplated in Art. 103 of the Revised Penal

registered owner), for any damages that he may cause the latter by his

Code. In no case did the Court exempt the actual owner of the

negligence.[24]

passenger vehicle from liability. On the contrary, it adhered to the rule

followed in the cases of Erezo vs. Jepte, Tamayo vs. Aquino, and De

However, it must be noted that the case at hand does not involve a breach

Peralta vs. Mangusang, among others, that the registered owner or

of contract of carriage, as in Tamayo, but a tort or quasi-delict under Article

operator has the right to be indemnified by the real or actual owner of the

2176,[25] in relation to Article 2180[26] of the New Civil Code. As such, the

amount that he may be required to pay as damage for the injury caused.

liability for which petitioner is being made responsible actually arises not
from a pre-existing contractual relation between petitioner and the

The right to be indemnified being recognized, recovery by the registered

deceased, but from a damage caused by the negligence of its employee.

owner or operator may be made in any form-either by a cross-claim, third-

Petitioner cannot, therefore, rely on our ruling in Tamayo and escape its

party complaint, or an independent action. The result is the same.

[23]

solidary liability for the liability of the employer for the negligent conduct of
its subordinate is direct and primary, subject only to the defense of due

Moreover, while We held in Tamayo that the responsibility of the registered

diligence in the selection and supervision of the employee.[27]

owner and actual operator of a truck which caused the death of its
passenger is not solidary, We noted therein that the same is due to the fact

Indeed, this Court has consistently been of the view that it is for the better

that the action instituted was one for breach of contract, to wit:

protection of the public for both the owner of record and the actual operator
to be adjudged jointly and severally liable with the driver.[28] As aptly stated

The decision of the Court of Appeals is also attacked insofar as it holds

by the appellate court, the principle of holding the registered owner liable

that inasmuch as the third-party defendant had used the truck on a route

for damages notwithstanding that ownership of the offending vehicle has

not covered by the registered owner's franchise, both the registered owner

already been transferred to another is designed to protect the public and

and the actual owner and operator should be considered as joint

not as a shield on the part of unscrupulous transferees of the vehicle to

tortfeasors and should be made liable in accordance with Article 2194 of

take refuge in, inorder to free itself from liability arising from its own

the Civil Code. This Article is as follows:

negligent act.[29]

Art. 2194. The responsibility of two or more persons who are liable for a
quasi-delict is solidary.

Hence, considering that the negligence of driver Gimena was sufficiently

But the action instituted in the case at bar is one for breach of

proven by the records of the case, and that no evidence of whatever nature

contract, for failure of the defendant to carry safely the deceased for

was presented by petitioner to support its defense of due diligence in the

her destination. The liability for which he is made responsible, i.e., for

selection and supervision of its employees, petitioner, as the employer of

the death of the passenger, may not be considered as arising from a

Gimena, may be held liable for damages arising from the death of

quasi-delict. As the registered owner Tamayo and his transferee

respondent Yus wife.

Rayos may not be held guilty of tort or a quasi-delict; their

156 | P a g e

Torts 5

WHEREFORE, premises considered, the instant petition is DENIED. The

Decision and Resolution, dated September 9, 2005 and August 8, 2006,
respectively, of the Court of Appeals in CA-G.R. CV No. 84175 are hereby
AFFIRMED.

SO ORDERED.

157 | P a g e

Torts 5

FILAMER CHRISTIAN INSTITUTE, PETITIONER, VS. HON.

INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, IN
HIS CAPACITY AS JUDGE OF THE REGIONAL TRIAL COURT,

Having a student driver's license, Funtecha requested the driver, Allan

Masa, and was allowed, to take over the vehicle while the latter was on his
way home one late afternoon. It is significant to note that the place where

BRANCH XIV, ROXAS CITY AND POTENCIANO KAPUNAN, SR.,

Allan lives is also the house of his father, the school president, Agustin

RESPONDENTS.

Masa. Moreover, it is also the house where Funtecha was allowed free
board while he was a student of Filamer Christian Institute.

RESOLUTION
Allan Masa turned over the vehicle to Funtecha only after driving down a
GUTIERREZ, JR., J.:

road, negotiating a sharp dangerous curb, and viewing that the road was
clear. (TSN, April 4, 1983, pp. 78-79) According to Allan's testimony, a fast

The private respondents, heirs of the late Pontenciano Kapunan, seek

moving truck with glaring lights nearly hit them so that they had to swerve

reconsideration of the decision rendered by this Court on October 16, 1990

to the right to avoid a collision. Upon swerving, they heard a sound as if

(Filamer Christian Institute v. Court Appeals, 190 SCRA 477) reviewing the

something had bumped against the vehicle, but they did not stop to check.

appellate court's conclusion that there exists an employer-employee

Actually, the Pinoy jeep swerved towards the pedestrian, Potenciano

relationship between the petitioner and its co-defendant Funtecha. The

Kapunan who was walking in his lane in the direction against vehicular

Court ruled that the petitioner is not liable for the injuries caused by

traffic, and hit him. Allan affirmed that Funtecha followed his advise to

Funtecha on the grounds that the latter was not an authorized driver for

swerve to the right. (Ibid., p. 79) At the time of the incident (6:30 P.M.) in

whose acts the petitioner shall be directly and primarily answerable, and

Roxas City, the jeep had only one functioning headlight.

that Funtecha was merely a working scholar who, under Section 14, Rule
X, Book III of the Rules and Regulations Implementing the Labor Code is

Allan testified that he was the driver and at the same time a security guard

not considered an employee of the petitioner.

of the petitioner-school. He further said that there was no specific time for
him to be off-duty and that after driving the students home at 5:00 in the

The private respondents assert that the circumstances obtaining in the

afternoon, he still had to go back to school and then drive home using the

present case call for the application of Article 2180 of the Civil Code since

same vehicle.

Funtecha is no doubt an employee of the petitioner. The private

respondent maintain that under Article 2180 an injured party shall have

Driving the vehicle to and from the house of the school president where

recourse against the servant as well as the petitioner for whom, at the time

both Allan and Funtecha reside is an act in furtherance of the interest of

of the incident, the servant was performing an act in furtherance of the

the petitioner-school. Allan's job demands that he drive home the school

interest and for the benefit of the petitioner. Funtecha allegedly did not

jeep so he can use it to fetch students in the morning of the next school

steal the school jeep nor use it for a joy ride without the knowledge of the

day.

school authorities.
It is indubitable under the circumstances that the school president had
After a re-examination of the laws relevant to the facts found by the trial

knowledge that the jeep was routinely driven home for the said purpose.

court and the appellate court, the Court reconsiders its decision. We

Moreover, it is not improbable that the school president also had

reinstate the Court of Appeals' decision penned by the late Justice

knowledge of Funtecha's possession of a student driver's license and his

Desiderio Jurado and concurred in by Justices Jose C. Campos, Jr. and

desire to undergo driving lessons during the time that he was not in his

Serafin E. Camilon. Applying Civil Code provisions, the appellate court

classrooms.

affirmed the trial court decision which ordered the payment of the
P20,000.00 liability in the Zenith Insurance Corporation policy, P10,000.00

In learning how to drive while taking the vehicle home in the direction of

moral damages, P4,000.00 litigation and actual expenses, and P3,000.00

Allan's house, Funtecha definitely was not having a joy ride. Funtecha was

attorney's fees.

not driving for the purpose of his enjoyment or for a "frolic of his own" but
ultimately, for the service for which the jeep was intended by the petitioner

It is undisputed that Funtecha was a working student, being a part-time

school. (See L. Battistoni v. Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR

janitor and a scholar of petitioner Filamer. He was, in relation to the school,

722 [1932]; See also Association of Baptists for World Evangelism, Inc. v.

an employee even if he was assigned to clean the school premises for only

Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]). Therefore, the

two (2) hours in the morning of each school day.

Court is constrained to conclude that the act of Funtecha in taking over the
steering wheel was one done for and in behalf of his employer for which
act the petitioner-school cannot deny any responsibility by arguing that it
158 | P a g e

Torts 5

was done beyond the scope of his janitorial duties. The clause "within the

Funtecha is an employee of petitioner Filamer. He need not have an official

scope of their assigned tasks" for purposes of raising the presumption of

appointment for a driver's position in order that the petitioner may be held

liability of an employer, includes any act done by an employee, in

responsible for his grossly negligent act, it being sufficient that the act of

furtherance of the interests of the employer or for the account of the

driving at the time of the incident was for the benefit of the petitioner.

employer at the time of the infliction of the injury or damage. (Manuel

Hence, the fact that Funtecha was not the school driver or was not acting

Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, the employee

within the scope of his janitorial duties does not relieve the petitioner of the

driving the vehicle derived some benefit from the act, the existence of a

burden of rebutting the presumption juris tantum that there was negligence

presumptive liability of the employer is determined by answering the

on its part either in the selection of a servant or employee, or in the

question of whether or not the servant was at the time of the accident

supervision over him. The petitioner has failed to show proof of its having

performing any act in furtherance of his master's business. (Kohlman v.

exercised the required diligence of a good father of a family over its

Hyland, 210 NW 643, 50 ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d

employees Funtecha and Allan.

937 [1937])
The Court reiterates that supervision includes the formulation of suitable
Section 14, Rule X, Book III of the Rules implementing the Labor Code, on

rules and regulation for the guidance of its employees and the issuance of

which the petitioner anchors its defense, was promulgated by the Secretary proper instructions intended for the protection of the public and persons
of Labor and Employment only for the purpose of administering and

with whom the employer has relations through his employees. (Bahia v.

enforcing the provisions of the Labor Code on conditions of employment.

Litonjud and Leynes, supra, at p. 628; Phoenix Construction, Inc. v.

Particularly, Rule X of Book III provides guidelines on the manner by which

Intermediate Appellate Court, 148 SCRA 353 [1987])

the powers of the Labor Secretary shall be exercised; on what records

should be kept, maintained and preserved; on payroll; and on the exclusion An employer is expected to impose upon its employees the necessary
of working scholars from, and inclusion of resident physicians in the

discipline called for in the performance of any act indispensable to the

employment coverage as far as compliance with the substantive labor

business and beneficial to their employer.

provisions on working conditions, rest periods, and wages, is concerned.

In the present case, the petitioner has not shown that it has set forth such
In other words, Rule X is merely a guide to the enforcement of the

rules and guidelines as would prohibit any one of its employees from taking

substantive law on labor. The Court, thus, makes the distinction and so

control over its vehicles if one is not the official driver or prohibiting the

holds that Section 14, Rule X, Book III of the Rules is not the decisive law

driver and son of the Filamer president from authorizing another employee

in a civil suit for damages instituted by an injured person during a vehicular

to drive the school vehicle. Furthermore, the petitioner has failed to prove

accident against a working student of a school and against the school

that it had imposed sanctions or warned its employees against the use of

itself.

its vehicles by persons other than the driver.

The present case does not deal with a labor dispute on conditions of

The petitioner, thus, has an obligation to pay damages for injury arising

employment between an alleged employee and an alleged employer. It

from the unskilled manner by which Funtecha drove the vehicle. (Cangco

invokes a claim brought by one for damages for injury caused by the

v. Manila Railroad Co., 38 Phil. 768, 772 [1918]) In the absence of

patently negligent acts of a person, against both doer-employee and his

evidence that the petitioner had exercised the diligence of a good father of

employer. Hence, the reliance on the implementing rule on labor to

a family in the supervision of its employees, the law imposes upon it the

disregard the primary liability of an employer under Article 2180 of the Civil

vicarious liability for acts or omissions of its employees. (Umali v. Bacani,

Code is misplaced. An implementing rule on labor cannot be used by an

69 SCRA 263 [1976); Poblete v. Fabros, 93 SCRA 200 [1979]; Kapalaran

employer as a shield to avoid liability under the substantive provisions of

Bus Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate

the Civil Code.

Appellate Court, 178 SCRA 331 [1989]; Pantranco North Express, Inc. v.
Baesa, 179, SCRA 384 [1989]) The liability of the employer is, under

There is evidence to show that there exists in the present case an extra-

Article 2180, primary and solidary. However, the employer shall have

contractual obligation arising from the negligence or reckless imprudence

recourse against the negligent employee for whatever damages are paid to

of a person "whose acts or omissions are imputable, by a legal fiction, to

the heirs of the plaintiff.

other(s) who are in a position to exercise an absolute or limited control over

(him)." (Bahia v. Litonjua and Leynes, 30 Phil. 624 [1915])

It is an admitted fact that the actual driver of the school jeep, Allan Masa,
was not made a party defendant in the civil case for damages. This is quite
understandable considering that as far as the injured pedestrian, plaintiff
159 | P a g e

Torts 5

Potenciano Kapunan, was concerned, it was Funtecha who was the one
driving the vehicle and presumably was one authorized by the school to
drive. The plaintiff and his heirs should not now be left to suffer without
simultaneous recourse against the petitioner for the consequent injury
caused by a janitor doing a driving chore for the petitioner even for a short
while. For the purpose of recovering damages under the prevailing
circumstances, it is enough that the plaintiff and the private respondent
heirs were able to establish the existence of employer-employee
relationship between Funtecha and petitioner Filamer and the fact that
Funtecha was engaged in an act not for an independent purpose of his
own but in furtherance of the business of his employer. A position of
responsibility on the part of the petitioner has thus been satisfactorily
demonstrated.

WHEREFORE, the motion for reconsideration of the decision dated

October 16, 1990 is hereby GRANTED. The decision of the respondent
appellate court affirming the trial court decision is REINSTATED.

SO ORDERED.

160 | P a g e

Torts 5

NATIONAL POWER CORPORATION, PETITIONER, VS. COURT OF

project and the employees of the labor only contractor (Industrial Timer

APPEALS, FIFTEENTH DIVISION AND PHESCO INCORPORATED,

Corporation vs. National Labor Relations Commission, 202 SCRA 465).

RESPONDENTS.

So, even if Phesco hired driver Gavino Ilumba, as Phesco is admittedly a

labor only contractor of Napocor, the statute itself establishes an

DECISION

employer-employee relationship between the employer (Napocor) and the

employee (driver Ilumba) of the labor only contractor (Phesco). (Ecal vs.

ROMERO, J.:

National Labor Relations Commission, 195 SCRA 224).

On July 22, 1979, a convoy of four (4) dump trucks owned by the National

Consequently, we hold Phesco not liable for the tort of driver Gavino

Power Corporation (NPC) left Marawi city bound for Iligan city.

Ilumba, as there was no employment relationship between Phesco and

Unfortunately, enroute to its destination, one of the trucks with plate no.

driver Gavino Ilumba. Under Article 2180 of the Civil Code, to hold the

RFT-9-6-673 driven by a certain Gavino Ilumba figured in a head-on-

employer liable for torts committed by his employees within the scope of

collision with a Toyota Tamaraw. The incident resulted in the death of three their assigned task, there must exist an employer-employee relationship.
(3) persons riding in the Toyota Tamaraw, as well as physical injuries to

(Martin vs. Court of Appeals, 205 SCRA 591).

seventeen other passengers.

WHEREFORE, we REVERSE the appealed decision. In lieu thereof, the
On June 10, 1980, the heirs of the victims filed a complaint for damages

Court renders judgment sentencing defendant National Power Corporation

against National Power Corporation (NPC) and PHESCO Incorporated

to pay plaintiffs the sum of P174,889.20 plus P20,000.00 as attorneys fees

(PHESCO) before the then Court of First Instance of Lanao del Norte,

and costs.

Marawi City. When defendant PHESCO filed its answer to the complaint it
contended that it was not the owner of the dump truck which collided with

SO ORDERED.

the Toyota Tamaraw but NPC. Moreover, it asserted that it was merely a
contractor of NPC with the main duty of supplying workers and technicians

Chagrined by the sudden turnaround, NPC filed a motion for

for the latters projects. On the other hand, NPC denied any liability and

reconsideration of said decision which was, however, denied on February

countered that the driver of the dump truck was the employee of PHESCO.

9, 1995.[1] Hence, this petition.

After trial on the merits, the trial court rendered a decision dated July 25,

The principal query to be resolved is, as between NPC and PHESCO, who

1988 absolving NPC of any liability. The dispositive portion reads:

is the employer of Ilumba, driver of the dumptruck which figured in the

accident and which should, therefore, would be liable for damages to the

Consequently, in view of the foregoing consideration, judgment is hereby

victims. Specifically, NPC assigns the sole error that:

rendered ordering PHESCO, Inc. and Gavino Ilumba upon receipt hereof:
THE COURT OF APPEALS DECISION FINDING THAT PETITIONER
1. To pay jointly and severally the plaintiffs thru the Dansalan College the

NPC AS THE EMPLOYER OF THE DRIVER GAVINO ILUMBA, AND

sum of P954,154.55 representing the actual or compensatory damages

CONSEQUENTLY, SENTENCING IT TO PAY THE ACTUAL AND

incurred by the plaintiffs; and

COMPENSATORY DAMAGES SUSTAINED BY COMPLAINANTS, IS

NOT IN ACCORD WITH THE LAW OR WITH THE APPLICABLE

2. To pay the sum of P50,000.00 representing Attorneys fees.

RULINGS OF THIS HONORABLE COURT.[2]

SO ORDERED.

As earlier stated, NPC denies that the driver of the dump truck was its
employee. It alleges that it did not have the power of selection and

Dissatisfied, PHESCO appealed to the Court of Appeals, which on

dismissal nor the power of control over Ilumba.[3] PHESCO, meanwhile,

November 10, 1994 reversed the trial courts judgment. We quote the

argues that it merely acted as a recruiter of the necessary workers for

pertinent portion of the decision:

and in behalf of NPC.[4]

A labor only contractor is considered merely as an agent of the employer

Before we decide who is the employer of Ilumba, it is evidently necessary

(Deferia vs. National Labor Relations Commission, 194 SCRA 525). A

to ascertain the contractual relationship between NPC and PHESCO. Was

finding that a contractor is a labor only contractor is equivalent to a finding

the relationship one of employer and job (independent) contractor or one of

that there is an employer-employee relationship between the owner of the

employer and labor only contractor?

161 | P a g e

Torts 5

Job (independent) contracting is present if the following conditions are met:

However, NPC maintains that even assuming that a labor only contract

(a) the contractor carries on an independent business and undertakes the

exists between it and PHESCO, its liability will not extend to third persons

contract work on his own account under his own responsibility according to

who are injured due to the tortious acts of the employee of the labor-only

his own manner and method, free from the control and direction of his

contractor.[16] Stated otherwise, its liability shall only be limited to violations

employer or principal in all matters connected with the performance of the

of the Labor Code and not quasi-delicts.

work except to the result thereof; and (b) the contractor has substantial
capital or investments in the form of tools, equipment, machineries, work

To bolster its position, NPC cites Section 9(b), Rule VII, Book III of the

premises and other materials which are necessary in the conduct of his

Omnibus Rules Implementing the Labor Code which reads:

[5]

business. Absent these requisites, what exists is a labor only contract

under which the person acting as contractor is considered merely as an

(b) Labor only contracting as defined herein is hereby prohibited and the

agent or intermediary of the principal who is responsible to the workers in

person acting as contractor shall be considered merely as an agent or

the same manner and to the same extent as if they had been directly

intermediary of the employer who shall be responsible to the workers in the

[6]

employed by him. Taking into consideration the above distinction and the

same manner and extent as if the latter were directly employed by him.

provisions of the Memorandum of Understanding entered into by

PHESCO and NPC, we are convinced that PHESCO was engaged in

In other words, NPC posits the theory that its liability is limited only to

labor only contracting.

compliance with the substantive labor provisions on working conditions,

rest periods, and wages and shall not extend to liabilities suffered by third

It must be noted that under the Memorandum, NPC had mandate to

parties, viz.:

approve the critical path network and rate of expenditure to be undertaken

by PHESCO.[7] Likewise, the manning schedule and pay scale of the

Consequently, the responsibilities of the employer contemplated in a labor

workers hired by PHESCO were subject to confirmation by NPC. [8] Then

only contract, should, consistent with the terms expressed in the rule, be

too, it cannot be ignored that if PHESCO enters into any sub-contract or

restricted to the workers. The same can not be expanded to cover

lease, again NPCs concurrence is needed. Another consideration is that

liabilities for damages to third persons resulting from the employees

even in the procurement of tools and equipment that will be used by

tortious acts under Article 2180 of the Civil Code.[17]

[9]

PHESCO, NPCs favorable recommendation is still necessary before these

tools and equipment can be purchased.[10] Notably, it is NPC that will
provide the money or funding that will be used by PHESCO to undertake
the project.[11] Furthermore, it must be emphasized that the project being
undertaken by PHESCO, i.e., construction of power energy facilities, is

The reliance is misplaced. It bears stressing that the action was premised
on the recovery of damages as a result of quasi-delict against both NPC
and PHESCO, hence, it is the Civil Code and not the Labor Code which is
the applicable law in resolving this case.

related to NPCs principal business of power generation. In sum, NPCs

control over PHESCO in matters concerning the performance of the latters
work is evident. It is enough that NPC has the right to wield such power to

To be sure, the pronouncement of this Court in Filamer Christian Institute

v. IAC,[18] is most instructive:

be considered as the employer.[12]

The present case does not deal with a labor dispute on conditions of
Under this factual milieu, there is no doubt that PHESCO was engaged in
labor-only contracting vis--vis NPC and as such, it is considered merely
an agent of the latter. In labor-only contracting, an employer-employee
relationship between the principal employer and the employees of the

employment between an alleged employee and an alleged employer. It

invokes a claim brought by one for damages for injury caused by the
patently negligent acts of a person, against both doer-employee and his
employer. Hence, the reliance on the implementing rule on labor to

labor-only contractor is created. Accordingly, the principal employer is

disregard the primary liability of an employer under Article 2180 of the Civil

responsible to the employees of the labor-only contractor as if such

Code is misplaced. An implementing rule on labor cannot be used by an

employees had been directly employed by the principal employer.[13] Since

employer as a shield to avoid liability under the substantive provisions of

PHESCO is only a labor-only contractor, the workers it supplied to NPC,

the Civil Code.

including the driver of the ill-fated truck, should be considered as

employees of NPC.[14] After all, it is axiomatic that any person (the principal
employer) who enters into an agreement with a job contractor, either for
the performance of a specified work or for the supply of manpower,
assumes responsibility over the employees of the latter.[15]

Corollarily from the above doctrine, the ruling in Cuison v. Norton &
Harrison Co.,[19] finds applicability in the instant case, viz.:

It is well to repeat that under the civil law an employer is only liable for the
negligence of his employees in the discharge of their respective duties.

162 | P a g e

Torts 5

The defense of independent contractor would be a valid one in the

NPC to demand from PHESCO and Ilumba reimbursement of the damages

Philippines just as it would be in the United States. Here Ora was a

it would be adjudged to pay to complainants. No costs.

contractor, but it does not necessarily follow that he was an independent

contractor. The reason for this distinction is that the employer retained the

SO ORDERED.

power of directing and controlling the work. The chauffeur and the two
persons on the truck were the employees of Ora, the contractor, but Ora,
the contractor, was an employee of Norton & Harrison Co., charged with
the duty of directing the loading and transportation of the lumber. And it
was the negligence in loading the lumber and the use of minors on the
truck which caused the death of the unfortunate boy. On the facts and the
law, Ora was not an independent contractor, but was the servant of the
defendant, and for his negligence defendant was responsible.

Given the above considerations, it is apparent that Article 2180 of the Civil
Code and not the Labor Code will determine the liability of NPC in a civil
suit for damages instituted by an injured person for any negligent act of the
employees of the labor only contractor. This is consistent with the ruling
that a finding that a contractor was a labor-only contractor is equivalent to
a finding that an employer-employee relationship existed between the
owner (principal contractor) and the labor-only contractor, including the
latters workers.[20]

With respect to the liability of NPC as the direct employer, Article 2180 of
the Civil Code explicitly provides:

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.

In this regard, NPCs liability is direct, primary and solidary with PHESCO
and the driver.[21] Of course, NPC, if the judgment for damages is satisfied
by it, shall have recourse against PHESCO and the driver who committed
the negligence which gave rise to the action.[22]

Finally, NPC, even if it truly believed that it was not the employer of the
driver, could still have disclaimed any liability had it raised the defense of
due diligence in the selection or supervision of PHESCO and Ilumba.[23]
However, for some reason or another, NPC did not invoke said defense.
Hence, by opting not to present any evidence that it exercised due
diligence in the supervision of the activities of PHESCO and Ilumba, NPC
has foreclosed its right to interpose the same on appeal in conformity with
the rule that points of law, theories, issues of facts and arguments not
raised in the proceedings below cannot be ventilated for the first time on
appeal.[24] Consequently, its liability stands.

WHEREFORE, in view of the foregoing, the assailed decision of the Court

of Appeals dated November 10, 1994 and its accompanying resolution
dated February 9, 1995 are AFFIRMED without prejudice to the right of

163 | P a g e

Torts 5

MA. LOURDES VALENZUELA, PETITIONER, VS. COURT OF

including loss of expected earnings.

APPEALS, RICHARD LI AND ALEXANDER COMMERCIAL, INC.,

RESPONDENTS.

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

DECISION

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

KAPUNAN, J.:

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

These two petitions for review on certiorari under Rule 45 of the Revised

direction, travelling at 80 kph, with "full bright lights." Temporarily blinded,

Rules of Court stem from an action to recover damages by petitioner

he instinctively swerved to the right to avoid colliding with the oncoming

Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries

vehicle, and bumped plaintiffs car, which he did not see because it was

sustained by her in a vehicular accident in the early morning of June 24,

midnight blue in color, with no parking lights or early warning device, and

1990. The facts found by the trial court are succinctly summarized by the

the area was poorly lighted. He alleged in his defense that the left rear

Court of Appeals below:

portion of plaintiffs car was protruding as it was then "at a standstill

diagonally" on the outer portion of the right lane towards Araneta Avenue

This is an action to recover damages based on quasi-delict, for serious

(par. 18, Answer). He confirmed the testimony of plaintiffs witness that

physical injuries sustained in a vehicular accident.

after being bumped the car of the plaintiff swerved to the right and hit
another car parked on the sidewalk. Defendants counterclaimed for

Plaintiffs version of the accident is as follows: At around 2:00 in the

damages, alleging that plaintiff was reckless or negligent, as she was not a

morning of June 24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a

licensed driver.

blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at
Marcos highway to her home at Palanza Street, Araneta Avenue. She was

The police investigator, Pfc. Felic Ramos, who prepared the vehicular

travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading

accident report and the sketch of the three cars involved in the accident,

towards the direction of Manila. Before reaching A. Lake Street, she

testified that the plaintiffs car was "near the sidewalk"; this witness did not

noticed something wrong with her tires; she stopped at a lighted place

remember whether the hazard lights of plaintiffs car were on, and did not

where there were people, to verify whether she had a flat tire and to solicit

notice if there was an early warning device; there was a street light at the

help if needed. Having been told by the people present that her rear right

corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not

tire was flat and that she cannot reach her home in that cars condition, she mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).
parked along the sidewalk, about 1 feet away, put on her emergency
lights, alighted from the car, and went to the rear to open the trunk. She

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff

was standing at the left side of the rear of her car pointing to the tools to a

alighted from her car and opened the trunk compartment, defendants car

man who will help her fix the tire when she was suddenly bumped by a

came approaching very fast ten meters from the scene; the car was

1987 Mitsubishi Lancer driven by defendant Richard Li and registered in

"zigzagging." The rear left side of plaintiffs car was bumped by the front

the name of defendant Alexander Commercial, Inc. Because of the impact

right portion of defendants car; as a consequence, the plaintiffs car

plaintiff was thrown against the windshield of the car of the defendant,

swerved to the right and hit the parked car on the sidewalk. Plaintiff was

which was destroyed, and then fell to the ground. She was pulled out from

thrown to the windshield of defendants car, which was destroyed, and

under defendants car. Plaintiffs left leg was severed up to the middle of

landed under the car. He stated that defendant was under the influence of

her thigh, with only some skin and sucle connected to the rest of the body.

liquor as he could "smell it very well" (pp. 43, 79, tsn., June 17, 1991).

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

After trial, the lower court sustained the plaintiffs submissions and found

eventually fitted with an artificial leg. The expenses for the hospital

defendant Richard Li guilty of gross negligence and liable for damages

confinement (P 120,000.00) and the cost of the artificial leg (P27,000.00)

under Article 2176 of the Civil Code. The trial court likewise held Alexander

were paid by defendants from the car insurance.

Commercial, Inc., Lis employer, jointly and severally liable for damages
pursuant to Article 2180. It ordered the defendants to jointly and severally

In her complaint, plaintiff prayed for moral damages in the amount of P1

pay the following amounts:

million, exemplary damages in the amount of P100,000.00 and other

medical and related expenses amounting to a total of P180,000.00,
164 | P a g e

Torts 5

1. P41,840.00, as actual damages, representing the miscellaneous

Li because he noticed that the latter was under the influence of liquor,

expenses of the plaintiff as a result of her severed left leg;

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 1970s, but

2. The sums of (a) P37,500.00, for the unrealized profits because of the

did not know either plaintiff or defendant Li before the accident.

stoppage of plaintiffs 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

In agreeing with the trial court that the defendant Li was liable for the

the date of this judgment; and (c) P30,000.00, a month, for unrealized

injuries sustained by the plaintiff, the Court of Appeals, in its decision,

profits in plaintiffs two (2) beauty salons from July, 1990 until the date of

however, absolved the Lis employer, Alexander Commercial, Inc. from any

this decision;

liability towards petitioner Lourdes Valenzuela and reduced the amount of

moral damages to P500,000.00. Finding justification for exemplary

3. P1,000,000.00, in moral damages;

damages, the respondent court allowed an award of P50,000.00 for the

same, in addition to costs, attorneys fees and the other damages. The

4. P50,000.00, as exemplary damages,

Court of Appeals, likewise, dismissed the defendants counterclaims. [3]

5. P60,000.00, as reasonable attorneys fees; and

Consequently, both parties assail the respondent courts decision by filing

two separate petitions before this Court. Richard Li, in G.R. No. 117944,

6. Costs.

contends that he should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes Valenzuelas own
negligence. Alternatively, he argues that in the event that this Court finds

As a result of the trial courts decision, defendants filed an Omnibus Motion

him negligent, such negligence ought to be mitigated by the contributory

for New Trial and for Reconsideration, citing testimony in Criminal Case

negligence of Valenzuela.

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,

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails

appeared to be at the center of the right lane of Aurora Blvd. The trial court

the respondent courts decision insofar as it absolves Alexander

denied the motion. Defendants forthwith filed an appeal with the

Commercial, Inc. from liability as the owner of the car driven by Richard Li

respondent Court of Appeals. In a Decision rendered March 30, 1994, the

and insofar as it reduces the amount of the actual and moral damages

Court of Appeals found that there was "ample basis from the evidence of

awarded by the trial court.[4]

record for the trial courts finding that the plaintiffs car was properly parked
at the right, beside the sidewalk when it was bumped by defendants car."[1] As the issues are intimately related, both petitions are hereby consolidated.
Dismissing the defendants argument that the plaintiffs car was improperly

It is plainly evident that the petition for review in G.R. No. 117944 raises no

parked, almost at the center of the road, the respondent court noted that

substantial questions of law. What it, in effect, attempts to have this Court

evidence which was supposed to prove that the car was at or near center

review are factual findings of the trial court, as sustained by the Court of

of the right lane was never presented during the trial of the case.

[2]

The

respondent court furthermore observed that:

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

Defendant Lis testimony that he was driving at a safe speed of 55

Appeals are binding and conclusive upon us, and this Court will not

km./hour is self serving; it was not corroborated. It was in fact contradicted

normally disturb such factual findings unless the findings of fact of the said

by eyewitness Rodriguez who stated that he was outside his beerhouse

court are palpably unsupported by the evidence on record or unless the

located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of

judgment itself is based on a misapprehension of facts.[5]

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;

In the first place, Valenzuelas version of the incident was fully

he noticed the car of Richard Li "approaching very fast ten (10) meters

corroborated by an uninterested witness, Rogelio Rodriguez, the owner-

away from the scene"; defendants car was zigzagging, although there

operator of an establishment located just across the scene of the accident.

were no holes and hazards on the street, and "bumped the leg of the

On trial, he testified that he observed a car being driven at a "very fast"

plaintiff who was thrown against the windshield of defendants car, causing

speed, racing towards the general direction of Araneta Avenue. [6]

its destruction. He came to the rescue of the plaintiff, who was pulled out

Rodriguez further added that he was standing in front of his establishment,

from under defendants car and was able to say "hurting words" to Richard

just ten to twenty feet away from the scene of the accident, when he saw
165 | P a g e

Torts 5

the car hit Valenzuela, hurtling her against the windshield of the

arrived at the scene only in response to a telephone call after the accident

defendants Mitsubishi Lancer, from where she eventually fell under the

had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial

defendants car. Spontaneously reacting to the incident, he crossed the

inconsistencies in Rodriguezs testimony that would impair the essential

street, noting that a man reeking with the smell of liquor had alighted from

integrity of his testimony or reflect on his honesty. We are compelled to

[7]

the offending vehicle in order to survey the incident. Equally important,

affirm the trial courts acceptance of the testimony of said eyewitness.

Rodriguez declared that he observed Valenzuelas car parked parallel and

very near the sidewalk,[8] contrary to Lis allegation that Valenzuelas car
was close to the center of the right lane. We agree that as between Lis

Against the unassailable testimony of witness Rodriguez we note that Lis

"self-serving" asseverations and the observations of a witness who did not

testimony was peppered with so many inconsistencies leading us to

even know the accident victim personally and who immediately gave a

conclude that his version of the accident was merely adroitly crafted to

statement of the incident similar to his testimony to the investigator

provide a version, obviously self-serving, which would exculpate him from

immediately after the incident, the latters testimony deserves greater

any and all liability in the incident. Against Valenzuelas corroborated

weight. As the court emphasized:

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

The issue is one of credibility and from Our own examination of the

driving merely at a speed of 55 kph. when "out of nowhere he saw a dark

transcript, We are not prepared to set aside the trial courts reliance on the

maroon lancer right in front of him, which was (the) plaintiffs car." He

testimony of Rodriguez negating defendants assertion that he was driving

alleged that upon seeing this sudden "apparition" he put on his brakes to

at a safe speed. While Rodriguez drives only a motorcycle, his perception

no avail as the road was slippery.[9]

of speed is not necessarily impaired. He was subjected to crossexamination and no attempt was made to question his competence or the

One will have to suspend disbelief in order to give credence to Lis

accuracy of his statement that defendant was driving "very fast." This was

disingenuous and patently self-serving asseverations. The average

the same statement he gave to the police investigator after the incident, as

motorist alert to road conditions will have no difficulty applying the brakes

told to a newspaper report (Exh. "P"). We see no compelling basis for

to a car traveling at the speed claimed by Li. Given a light rainfall, the

disregarding his testimony.

visibility of the street, and the road conditions on a principal metropolitan

thoroughfare like Aurora Boulevard, Li would have had ample time to react

The alleged inconsistencies in Rodriguez testimony are not borne out by

to the changing conditions of the road if he were alert - as every driver

an examination of the testimony. Rodriguez testified that the scene of the

should be - to those conditions. Driving exacts a more than usual toll on the

accident was across the street where his beerhouse is located about ten to

senses. Physiological "fight or flight"[10] mechanisms are at work, provided

twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the

such mechanisms were not dulled by drugs, alcohol, exhaustion,

accident transpired immediately in front of his establishment. The

drowsiness, etc.[11] Lis failure to react in a manner which would have

ownership of the Lambingan sa Kambingan is not material; the business is

avoided the accident could therefore have been only due to either or both

registered in the name of his mother, but he explained that he owns the

of the two factors: 1) that he was driving at a "very fast" speed as testified

establishment (p. 5, tsn., June 20, 1991).

by Rodriquez; and 2) that he was under the influence of alcohol.[12] Either

factor working independently would have diminished his responsiveness to

Moreover, the testimony that the streetlights on his side of Aurora

road conditions, since normally he would have slowed down prior to

Boulevard were on the night the accident transpired (p. 8) is not

reaching Valenzuelas car, rather than be in a situation forcing him to

necessarily contradictory to the testimony of Pfc. Ramos that there was a

suddenly apply his brakes. As the trial court noted (quoted with approval by

streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45,

respondent court):

tsn., Oct. 20, 1991).

Secondly, as narrated by defendant Richard Li to the San Juan Police
With respect to the weather condition, Rodriguez testified that there was

immediately after the incident, he said that while driving along Aurora Blvd.,

only a drizzle, not a heavy rain and the rain has stopped and he was

out of nowhere he saw a dark maroon lancer right in front of him, which

outside his establishment at the time the accident transpired (pp. 64-65,

was plaintiffs car, indicating, again, thereby that, indeed, he was driving

tsn., June 17, 1991). This was consistent with plaintiffs testimony that it

very fast, oblivious of his surroundings and the road ahead of him, because

was no longer raining when she left Bistro La Conga (pp. 10-11, tsn., April

if he was not, then he could not have missed noticing at a still far distance

29, 1991). It was defendant Li who stated that it was raining all the way in

the parked car of the plaintiff at the right side near the sidewalk which had

an attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn.,

its emergency lights on, thereby avoiding forcefully bumping at the plaintiff

Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he

who was then standing at the left rear edge of her car.
166 | P a g e

Torts 5

law takes stock of impulses of humanity when placed in threatening or

Since, according to him, in his narration to the San Juan Police, he put on

dangerous situations and does not require the same standard of thoughtful

his brakes when he saw the plaintiffs car in front of him, but that it failed as

and reflective care from persons confronted by unusual and oftentimes

the road was wet and slippery, this goes to show again, that, contrary to his threatening conditions.[15] Under the "emergency rule" adopted by this
claim, he was, indeed, running very fast. For, were it otherwise, he could

Court in Gan vs Court of Appeals,[16] an individual who suddenly finds

have easily completely stopped his car, thereby avoiding the bumping of

himself in a situation of danger and is required to act without much time to

the plaintiff, notwithstanding that the road was wet and slippery. Verily,

consider the best means that may be adopted to avoid the impending

since, if, indeed, he was running slow, as he claimed, at only about 55

danger, is not guilty of negligence if he fails to undertake what

kilometers per hour, then, inspite of the wet and slippery road, he could

subsequently and upon reflection may appear to be a better solution,

have avoided hitting the plaintiff by the mere expedient or applying his

unless the emergency was brought by his own negligence.[17]

brakes at the proper time and distance.

Applying this principle to a case in which the victims in a vehicular accident
It could not be true, therefore, as he now claims during his testimony,

swerved to the wrong lane to avoid hitting two children suddenly darting

which is contrary to what he told the police immediately after the accident

into the street, we held, in Mc Kee vs. Intermediate Appellate Court,[18] that

and is, therefore, more believable, that he did not actually step on his

the driver therein, Jose Koh, "adopted the best means possible in the given

brakes, but simply swerved a little to the right when he saw the on-coming

situation" to avoid hitting the children. Using the "emergency rule" the court

car with glaring headlights, from the opposite direction, in order to avoid it.

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

For, had this been what he did, he would not have bumped the car of the

negligence.[19]

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

While the emergency rule applies to those cases in which reflective

safely avoid a collision with the on-coming car, considering that Aurora

thought, or the opportunity to adequately weigh a threatening situation is

Blvd. is a double lane avenue separated at the center by a dotted white

absent, the conduct which is required of an individual in such cases is

paint, and there is plenty of space for both cars, since her car was running

dictated not exclusively by the suddenness of the event which absolutely

at the right lane going towards Manila and the on-coming car was also on

negates thoughtful care, but by the over-all nature of the circumstances. A

its right lane going to Cubao."

[13]

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

Having come to the conclusion that Li was negligent in driving his

the entire boulevard in search for a parking zone or turn on a dark Street or

company-issued Mitsubishi Lancer, the next question for us to determine is

alley where she would likely find no one to help her. It would be hazardous

whether or not Valenzuela was likewise guilty of contributory negligence in

for her not to stop and assess the emergency (simply because the entire

parking her car alongside Aurora Boulevard, which entire area Li points

length of Aurora Boulevard is a no-parking zone) because the hobbling

out, is a no parking zone.

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

We agree with the respondent court that Valenzuela was not guilty of

close to A. Lake St., noticed that she had a flat tire. To avoid putting herself

contributory negligence.

and other motorists in danger, she did what was best under the situation.
As narrated by respondent court:

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 "She stopped at a lighted place where there were people, to verify whether
the standard to which he is required to conform for his own protection.

[14]

she had a flat tire and to solicit help if needed. Having been told by the

Based on the foregoing definition, the standard or act to which, according

people present that her rear right tire was flat and that she cannot reach

to petitioner Li, Valenzuela ought to have conformed for her own protection

her home she parked along the sidewalk, about 1 feet away, behind a

was not to park at all at any point of Aurora Boulevard, a no parking zone.

Toyota Corona Car."[20] In fact, respondent court noted, Pfc. Felix Ramos,

We cannot agree.

the investigator on the scene of the accident confirmed that Valenzuelas

car was parked very close to the sidewalk.[21] The sketch which he

Courts have traditionally been compelled to recognize that an actor who is

prepared after the incident showed Valenzuelas car partly straddling the

confronted with an emergency is not to be held up to the standard of

sidewalk, clear and at a convenient distance from motorists passing the

conduct normally applied to an individual who is in no such situation. The

right lane of Aurora Boulevard. This fact was itself corroborated by the
167 | P a g e

Torts 5

testimony of witness Rodriguez.[22]

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

Under the circumstances described, Valenzuela did exercise the standard

fringe benefits attaching to his position.

reasonably dictated by the emergency and could not be considered to have

contributed to the unfortunate circumstances which eventually led to the

Under the civil law, an employer is liable for the negligence of his

amputation of one of her lower extremities. The emergency which led her

employees in the discharge of their respective duties, the basis of which

to park her car on a sidewalk in Aurora Boulevard was not of her own

liability is not respondeat superior, but the relationship of pater familias,

making, and it was evident that she had taken all reasonable precautions.

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

Obviously in the case at bench, the only negligence ascribable was the

Co., 55 Phil. 18). Before an employer may be held liable for the negligence

negligence of Li on the night of the accident. "Negligence, as it is

of his employee, the act or omission which caused damage must have

commonly understood is conduct which creates an undue risk of harm to

occurred while an employee was in the actual performance of his assigned

others."

[23]

It is the failure to observe that degree of care, precaution, and

tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341).

vigilance which the circumstances justly demand, whereby such other

In defining an employers liability for the acts done within the scope of the

person suffers injury.[24] We stressed, in Corliss vs. Manila Railroad

employees assigned tasks, the Supreme Court has held that this includes

[25]

Company,

that negligence is the want of care required by the

circumstances.

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

The circumstances established by the evidence adduced in the court below Court, 212 SCRA 637). An employer is expected to impose upon its
plainly demonstrate that Li was grossly negligent in driving his Mitsubishi

employees the necessary discipline called for in the performance of any act

Lancer. It bears emphasis that he was driving at a fast speed at about 2:00

indispensable to the business and beneficial to their employer (at p. 645).

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

In light of the foregoing, We are unable to sustain the trial courts finding

was under the influence of liquor. Under these conditions, his chances of

that since defendant Li was authorized by the company to use the

effectively dealing with changing conditions on the road were significantly

company car either officially or socially or even bring it home, he can be

lessened. As Prosser and Keaton emphasize:

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

[U]nder present day traffic conditions, any driver of an automobile must be

functions as assistant manager; using it for non-official purposes would

prepared for the sudden appearance of obstacles and persons on the

appear to be a fringe benefit, one of the perks attached to his position. But

highway, and of other vehicles at intersections, such as one who sees a

to impose liability upon the employer under Article 2180 of the Civil Code,

child on the curb may be required to anticipate its sudden dash into the

earlier quoted, there must be a showing that the damage was caused by

street, and his failure to act properly when they appear may be found to

their employees in the service of the employer or on the occasion of their

amount to negligence.

[26]

functions. There is no evidence that Richard Li was at the time of the

accident performing any act in furtherance of the companys business or its
interests, or at least for its benefit. The imposition of solidary liability

Lis obvious unpreparedness to cope with the situation confronting him on

against defendant Alexander Commercial Corporation must therefore

the night of the accident was clearly of his own making.

fail.[27]

We now come to the question of the liability of Alexander Commercial, Inc.

Lis employer. In denying liability on the part of Alexander Commercial, the

We agree with the respondent court that the relationship in question is not

respondent court held that:

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

There is no evidence, not even defendant Lis testimony, that the visit was

ultimately falls upon the employer, for his failure to exercise the diligence of

in connection with official matters. His functions as assistant manager

a good father of the family in the selection and supervision of his

sometimes required him to perform work outside the office as he has to

employees. It is up to this point, however, that our agreement with the

visit buyers and company clients, but he admitted that on the night of the

respondent court ends. Utilizing the bonus pater familias standard

accident he came from BF Homes Paraaque he did not have business

expressed in Article 2180 of the Civil Code,[28] we are of the opinion that

from the company (pp. 25-26, tsn, Sept. 23, 1991). The use ofthe

Lis employer, Alexander Commercial, Inc. is jointly and solidarily liable for
168 | P a g e

Torts 5

the damage caused by the accident of June 24, 1990.

the first plan, require rigorous tests of road worthiness from their agents
prior to turning over the car (subject of company maintenance) to their

First, the case of St. Francis High School vs. Court of Appeals[29] upon

representatives. In other words, like a good father of a family, they entrust

which respondent court has placed undue reliance, dealt with the subject of the company vehicle only after they are satisfied that the employee to
a school and its teachers supervision of students during an extracurricular

whom the car has been given full use of the said company car for company

activity. These cases now fall under the provision on special parental

or private purposes will not be a threat or menace to himself, the company

authority found in Art. 218 of the Family Code which generally

or to others. When a company gives full use and enjoyment of a company

encompasses all authorized school activities, whether inside or outside

car to its employee, it in effect guarantees that it is, like every good father,

school premises.

satisfied that its employee will use the privilege reasonably and
responsively.

Second, the employers primary liability under the concept of pater familias
embodied by Art. 2180 (in relation to Art. 2176) of the Civil Code is quasi-

In the ordinary course of business, not all company employees are given

delictual or tortious in character. His liability is relieved on a showing that

the privilege of using a company-issued car. For large companies other

he exercised the diligence of a good father of the family in the selection

than those cited in the example of the preceding paragraph, the privilege

and supervision of its employees. Once evidence is introduced showing

serves important business purposes either related to the image of success

that the employer exercised the required amount of care in selecting its

an entity intends to present to its clients and to the public in general, or for

employees, half of the employers burden is overcome. The question of

practical and utilitarian reasons - to enable its managerial and other

diligent supervision, however, depends on the circumstances of

employees of rank or its sales agents to reach clients conveniently. In most

employment.

cases, providing a company car serves both purposes. Since important

business transactions and decisions may occur at all hours in all sorts of

Ordinarily, evidence demonstrating that the employer has exercised

situations and under all kinds of guises, the provision for the unlimited use

diligent supervision of its employee during the performance of the latters

of a company car therefore principally serves the business and goodwill of

assigned tasks would be enough to relieve him of the liability imposed by

a company and only incidentally the private purposes of the individual who

Article 2180 in relation to Article 2176 of the Civil Code. The employer is

actually uses the car, the managerial employee or company sales agent.

not expected to exercise supervision over either the employees private

As such, in providing for a company car for business use and/or for the

activities or during the performance of tasks either unsanctioned by the

purpose of furthering the companys image, a company owes a

former or unrelated to the employees tasks. The case at bench presents a

responsibility to the public to see to it that the managerial or other

situation of a different character, involving a practice utilized by large

employees to whom it entrusts virtually unlimited use of a company issued

companies with either their employees of managerial rank or their

car are able to use the company issue capably and responsibly.

representatives.
In the instant case, Li was an Assistant Manager of Alexander Commercial,
It is customary for large companies to provide certain classes of their

Inc. In his testimony before the trial court, he admitted that his functions as

employees with courtesy vehicles. These company cars are either wholly

Assistant Manager did not require him to scrupulously keep normal office

owned and maintained by the company itself or are subject to various

hours as he was required quite often to perform work outside the office,

plans through which employees eventually acquire their vehicles after a

visiting prospective buyers and contacting and meeting with company

given period of service, or after paying a token amount. Many companies

clients.[30] These meetings, clearly, were not strictly confined to routine

provide liberal "car plans" to enable their managerial or other employees of

hours because, as a managerial employee tasked with the job of

rank to purchase cars, which, given the cost of vehicles these days, they

representing his company with its clients, meetings with clients were both

would not otherwise be able to purchase on their own.

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

Under the first example, the company actually owns and maintains the car

corporation - to put up the front of a highly successful entity, increasing the

up to the point of turnover of ownership to the employee; in the second

latters goodwill before its clientele. It also facilitated meeting between Li

example, the car is really owned and maintained by the employee himself.

and its clients by providing the former with a convenient mode of travel.

In furnishing vehicles to such employees, are companies totally absolved

of responsibility when an accident involving a company-issued car occurs

Moreover, Lis claim that he happened to be on the road on the night of the

during private use after normal office hours?

accident because he was coming from a social visit with an officemate in

Paraaque was a bare allegation which was never corroborated in the

Most pharmaceutical companies, for instance, which provide cars under

court below. It was obviously self-serving. Assuming he really came from

169 | P a g e

Torts 5

his officemates place, the same could give rise to speculation that he and
his officemate had just been from a work-related function, or they were

The foregoing discussion does not even scratch the surface of the nature

together to discuss sales and other work related strategies.

of the resulting damage because it would be highly speculative to estimate

the amount of psychological pain, damage and injury which goes with the

In fine, Alexander Commercial, Inc. has not demonstrated, to our

sudden severing of a vital portion of the human body. A prosthetic device,

satisfaction, that it exercised the care and diligence of a good father of the

however technologically advanced, will only allow a reasonable amount of

family in entrusting its company car to Li. No allegations were made as to

functional restoration of the motor functions of the lower limb. The sensory

whether or not the company took the steps necessary to determine or

functions are forever lost. The resultant anxiety, sleeplessness,

ascertain the driving proficiency and history of Li, to whom it gave full and

psychological injury, mental and physical pain are inestimable.

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

As the amount of moral damages are subject to this Courts discretion, we

its company car to Li, said company, based on the principle of bonus pater

are of the opinion that the amount of P1,000,000.00 granted by the trial

familias, ought to be jointly and severally liable with the former for the

court is in greater accord with the extent and nature of the injury -. physical

injuries sustained by Ma. Lourdes Valenzuela during the accident.

and psychological - suffered by Valenzuela as a result of Lis grossly

negligent driving of his Mitsubishi Lancer in the early morning hours of the

Finally, we find no reason to overturn the amount of damages awarded by

accident.

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

WHEREFORE, PREMISES CONSIDERED, the decision of the court of

the plaintiff at the expense of a defendant, the award should nonetheless

Appeals is modified with the effect of REINSTATING the judgment of the

be commensurate to the suffering inflicted. In the instant case we are of the Regional Trial Court.
opinion that the reduction in moral damages from an amount of P
1,000,000.00 to P500,000.00 by the Court of Appeals was not justified

SO ORDERED.

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 middleage, 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.
170 | P a g e

Torts 5

CORNELIO LAMPESA and DARIO COPSIYAT, Petitioners, vs. DR.

JUAN DE VERA, JR., FELIX RAMOS and MODESTO TOLLAS,

Tollas, as the truck owner, truck driver, jeepney owner/operator and

jeepney driver, respectively.

Respondents.
The trial court found driver Copsiyat negligent in the operation of his truck
DECISION

and ruled that his negligence was the proximate cause of the injuries
suffered by De Vera, Jr. It also ruled that Lampesa did not exercise due

QUISUMBING, J.:

diligence in the selection and supervision of his driver as required under

Articles 2176[9] and 2180[10] of the Civil Code. The fallo of the decision
[1]

This petition for review seeks the reversal of the Decision dated August

reads:

21, 2002 of the Court of Appeals in CA-G.R. CV No. 49778 which had

WHEREFORE, judgment is hereby rendered:

affirmed the Decision[2] dated March 22, 1995 of the Regional Trial Court of
San Carlos City, Pangasinan, Branch 57, finding petitioners Cornelio

1. Ordering Dario Copsiyat and Cornelio F. Lampesa, jointly and solidarily

Lampesa and Dario Copsiyat liable for damages on account of the injury

to pay the plaintiff the sum of P75,000.00 as moral damages; P22,000.00

sustained by respondent, Dr. Juan De Vera, Jr.

as actual damages; and P15,000.00 as attorneys fees plus the costs of

suit.

The antecedent facts, as found by the appellate court, are as follows:

2. The counterclaim and cross-claim of defendant Lampesa and Copsiyat
On December 28, 1988, De Vera, Jr. boarded a passenger jeepney[3]

and the counterclaim and counter-cross-claim of defendants Ramos and

bound for Baguio City driven by respondent Modesto Tollas. Upon

Tollas are hereby dismissed.

reaching the Km. 4 marker of the national highway, the jeepney came to a
complete stop to allow a truck,[4] then being driven by Dario Copsiyat, to

SO ORDERED.[11]

cross the path of the jeepney in order to park at a private parking lot on the

Upon review, the Court of Appeals upheld the trial courts findings of

right side of the road. As Tollas began to maneuver the jeepney slowly

negligence on the part of Copsiyat and Lampesa. The dispositive portion of

along its path, the truck, which had just left the pavement, suddenly started

the decision reads:

to slide back towards the jeepney until its rear left portion hit the right side

WHEREFORE, the questioned Decision, dated March 22, 1995, of the

of the jeepney. De Vera, Jr., who was seated in the front passenger seat,

Regional Trial Court of Pangasinan, Branch 57, in Civil Case No. SCC-

noticed his left middle finger was cut off as he was holding on to the handle

1506, is hereby AFFIRMED.

of the right side of the jeepney. He asked Tollas to bring him immediately
to the hospital. The Medical Certificate[5] dated June 19, 1989, described

SO ORDERED.[12]

De Vera, Jr.s amputated left middle finger as follows:

Hence, the instant petition, raising the following as issues:

Neuroma, proximal phalange left middle finger OPERATION

PERFORMED: Ray amputation middle finger left

I.

[6]

P/Cpl. Arthur A. Bomogao of the Benguet Integrated National Police

WHO BETWEEN THE TWO (2) DRIVERS (COPSIYAT WHO WAS THE

investigated and recorded the incident in his Police Investigation Report [7]

ELF TRUCK DRIVER AND TOLLAS FOR THE PASSENGER JEEP) WAS

dated January 17, 1989.

NEGLIGENT?

The defense, for its part, presented the following version of the incident:

II.

After delivering a load of vegetables, truck owner Lampesa instructed his

driver, Copsiyat, to park the truck in the parking lot across the highway.

GRANTING THAT COPSIYAT WAS ALSO NEGLIGENT, WHETHER OR

While the rear of the truck was still on the pavement of the highway, an

NOT THE AWARD OF MORAL DAMAGES AND ATTORNEYS FEES

approaching passenger jeepney sideswiped the rear portion of the truck.

ARE JUSTIFIED; AND

This resulted in the dismemberment of De Vera, Jr.s left middle finger,

according to the defense.

III.

Lampesa offered P5,000 to De Vera, Jr. as a gesture of humanitarian

WHETHER OR NOT THE TRIAL COURT AND THE COURT OF

support, but the latter demanded P1 million although this amount was later

APPEALS COMMITTED REVERSIBLE ERROR IN THE APPRECIATION

lowered to P75,000. The parties failed to settle amicably; thus, De Vera, Jr.

OF THE EVIDENCE.[13]

filed an action for damages[8] against Lampesa, Copsiyat, Ramos and

171 | P a g e

Torts 5

Simply put, the issues for our resolution are: (1) Did the Court of Appeals
err in affirming the trial courts ruling that petitioners are liable for the injury

Lampesa claims he did his legal duty as an employer in the selection and

sustained by De Vera, Jr.? and (2) Did it err in awarding moral damages

supervision of Copsiyat. But the record is bare on this point. It lacks any

and attorneys fees?

showing that Lampesa did so. Admitting arguendo that Copsiyat did show
his professional license when he applied for the job of truck driver,

Petitioners insist that it was Tollas, the jeepney driver, who was negligent.

Lampesa should not have been satisfied by the mere possession of a

They maintain that Tollas should have first allowed the truck to park as he

professional drivers license by Copsiyat. As an employer, Lampesa was

had a clear view of the scenario, compared to Copsiyat, the truck driver,

duty bound to do more. He should have carefully examined Copsiyats

who had a very limited view of the back of the truck. Lampesa also avers

qualifications, experiences and record of service, if any.[19] Lampesa must

he did his legal duty in the selection and supervision of Copsiyat as his

also show that he exercised due supervision over Copsiyat after his

driver. He alleges that before hiring Copsiyat, he asked the latter if he had

selection. But all he had shown on record were bare allegations

a professional drivers license.

unsubstantiated by evidence. Having failed to exercise the due diligence

required of him as employer, Lampesa cannot avoid solidary liability for the

For their part, respondents adopt the findings of the trial and appellate

tortuous act committed by his driver, Copsiyat.

courts. They contend that it was Copsiyat who was negligent in driving the
truck and the testimony of De Vera, Jr. on this matter was more than

On a final note, petitioners liability for moral damages and attorneys fees

sufficient to prove the fact. De Vera, Jr. also contends that petitioners are

cannot now be questioned for failure of petitioners to raise it before the

liable for moral damages and attorneys fees under Articles 2217

[14]

and

2208[15] of the Civil Code.

Court of Appeals. It is a well-entrenched rule that issues not raised below

cannot be raised for the first time on appeal as to do so would be offensive
to the basic rules of fair play and justice.[20] Moreover, the award of moral

Considering the contentions of the parties, in the light of the circumstances

damages in this case is justifiable under Article 2219 (2)[21] of the Civil

in this case, we are in agreement that the petition lacks merit.

Code, which provides for said damages in cases of quasi-delicts causing

physical injuries.[22] The award for attorneys fees is also proper under

Article 2176 of the Civil Code provides that whoever by act or omission

Article 2208 (2)[23] of the Civil Code, considering that De Vera, Jr. was

causes damage to another, there being fault or negligence, is obliged to

compelled to litigate when petitioners ignored his demand for an amicable

pay for the damage done. Such fault or negligence, if there is no pre-

settlement of his claim.[24]

existing contractual relation between the parties, is called quasi-delict.

Whether a person is negligent or not is a question of fact, which we cannot

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated

pass upon in a petition for review on certiorari, as our jurisdiction is limited

August 21, 2002 of the Court of Appeals in CA-G.R. CV No. 49778 is

to reviewing errors of law.

[16]

In this case, both the trial and the appellate courts found Copsiyat

AFFIRMED. Costs against the petitioners.

SO ORDERED.

negligent in maneuvering the truck and ruled that his negligence was the
proximate cause of the injury sustained by De Vera, Jr. Lampesa was also
held accountable by both courts because he failed to exercise due
diligence in the supervision of his driver. This Court is not bound to weigh
all over again the evidence adduced by the parties, particularly where the
findings of both the trial court and the appellate court on the matter of
petitioners negligence coincide. The resolution of factual issues is a
function of the trial court, whose findings on these matters are, as a
general rule, binding on this Court more so where these have been
affirmed by the Court of Appeals.[17]

Once negligence on the part of the employee is established, a presumption

instantly arises that the employer was negligent in the selection and/or
supervision of said employee.[18] To rebut this presumption, the employer
must present adequate and convincing proof that he exercised care and
diligence in the selection and supervision of his employees.
172 | P a g e

Torts 5

MERCURY DRUG CORPORATION AND ROLANDO J. DEL ROSARIO,

PETITIONERS, VS. SPOUSES RICHARD HUANG AND CARMEN
HUANG, AND STEPHEN HUANG, RESPONDENTS.

Respondents fault petitioner Del Rosario for committing gross negligence

and reckless imprudence while driving, and petitioner Mercury Drug for
failing to exercise the diligence of a good father of a family in the selection
and supervision of its driver.

DECISION
In contrast, petitioners allege that the immediate and proximate cause of
PUNO, C.J.:

the accident was respondent Stephen Huang's recklessness. According to

petitioner Del Rosario, he was driving on the left innermost lane when the

On appeal are the Decision[1] and Resolution[2] of the Court of Appeals in

car bumped the truck's front right tire. The truck then swerved to the left,

CA-G.R. CV No. 83981, dated February 16, 2006 and March 30, 2006,

smashed into an electric post, crossed the center island, and stopped on

respectively which affirmed with modification the Decision[3] of the Regional

the other side of the highway. The car likewise crossed over the center

Trial Court (RTC) of Makati City, dated September 29, 2004. The trial court

island and landed on the same portion of C-5. Further, petitioner Mercury

found petitioners jointly and severally liable to pay respondents damages

Drug claims that it exercised due diligence of a good father of a family in

for the injuries sustained by respondent Stephen Huang, son of respondent the selection and supervision of all its employees.
spouses Richard and Carmen Huang.
The trial court, in its Decision dated September 29, 2004, found petitioners
First, the facts:

Mercury Drug and Del Rosario jointly and severally liable to pay
respondents actual, compensatory, moral and exemplary damages,

Petitioner Mercury Drug Corporation (Mercury Drug) is the registered

attorney's fees, and litigation expenses. The dispositive portion reads:

owner of a six-wheeler 1990 Mitsubishi Truck with plate number PRE 641

WHEREFORE, judgment is rendered finding defendants Mercury Drug

(truck). It has in its employ petitioner Rolando J. del Rosario as driver.

Corporation, Inc. and Rolando del Rosario, jointly and severally liable to

Respondent spouses Richard and Carmen Huang are the parents of

pay plaintiffs Spouses Richard Y. Huang and Carmen G. Huang, and

respondent Stephen Huang and own the red 1991 Toyota Corolla GLI

Stephen Huang the following amounts:

Sedan with plate number PTT 775 (car).

1.
These two vehicles figured in a road accident on December 20, 1996 at

Two Million Nine Hundred Seventy Three Thousand

Pesos (P2,973,000.00) actual damages;

around 10:30 p.m. within the municipality of Taguig, Metro Manila.

Respondent Stephen Huang was driving the car, weighing 1,450 kg., while

2.

As compensatory damages:

petitioner Del Rosario was driving the truck, weighing 14,058 kg. Both were
traversing the C-5 Highway, north bound, coming from the general

a.

Twenty Three Million Four Hundred Sixty

direction of Alabang going to Pasig City. The car was on the left innermost

One Thousand, and Sixty-Two Pesos

lane while the truck was on the next lane to its right, when the truck

(P23,461,062.00) for life care cost of

suddenly swerved to its left and slammed into the front right side of the car.

Stephen;

The collision hurled the car over the island where it hit a lamppost, spun
around and landed on the opposite lane. The truck also hit a lamppost, ran

b.

Ten Million Pesos (P10,000,000.00) as and

over the car and zigzagged towards, and finally stopped in front of Buellah

for lost or impaired earning capacity of

Land Church.

Stephen;

At the time of the accident, petitioner Del Rosario only had a Traffic
Violation Receipt (TVR). His driver's license had been confiscated because
he had been previously apprehended for reckless driving.

3.

Four Million Pesos (P4,000,000.00) as moral

damages;

The car, valued at P300,000.00, was a total wreck. Respondent Stephen

Huang sustained massive injuries to his spinal cord, head, face, and lung.

4.

Two Million Pesos (P2,000,000.00) as exemplary

damages; and

Despite a series of operations, respondent Stephen Huang is paralyzed for

life from his chest down and requires continuous medical and rehabilitation
treatment.

5.

One Million Pesos (P1,000,000.00) as attorneys fees

and litigation expense.[4]
173 | P a g e

Torts 5

On February 16, 2006, the Court of Appeals affirmed the decision of the

DISREGARDING THE EVIDENCES PRESENTED

trial court but reduced the award of moral damages to P1,000,000.00. The

DURING THE TRIAL OF THE CASE.

appellate court also denied the motion for reconsideration filed by

petitioners.

G.

IN PRESENTING ONLY IN THE DECISION

TESTIMONIES FAVORABLE TO THE

Hence, this appeal.

RESPONDENTS HEREIN AND COMPLETELY

DISREGARDING THE EVIDENCES PRESENTED BY

Petitioners cite the following grounds for their appeal:

THE PETITIONERS HEREIN WHICH

CONTRADICTED SUCH TESTIMONIES NOT ONLY

1.

That the subject Decision which dismissed the appeal

THROUGH ORAL TESTIMONIES BUT AS WELL AS

of petitioners herein but AFFIRMED WITH

DOCUMENTARY EVIDENCES.[5]

MODIFICATION the decision of the Regional Trial

Court, Branch 64, Makati City, in that the award of

We affirm the findings of the trial court and the appellate court that

moral damages was reduced to P1,000,000.00 and its

petitioner Del Rosario was negligent. The evidence does not support

Resolution dated March 30, 2006, which dismissed

petitioners' claim that at the time of the accident, the truck was at the left

outright the Motion for Reconsideration must be set

inner lane and that it was respondent Stephen Huang's car, at its right,

aside because the Honorable Court of Appeals

which bumped the right front side of the truck. Firstly, petitioner Del

committed reversible error:

Rosario could not precisely tell which part of the truck was hit by the car, [6]
despite the fact that the truck was snub-nosed and a lot higher than the

A.

IN DENYING OUTRIGHTLY THE MOTION FOR

car. Petitioner Del Rosario could not also explain why the car landed on the

RECONSIDERATION ON ALLEGEDLY BEING FILED

opposite lane of C-5 which was on its left side. He said that "the car did not

OUT OF TIME FOR ONE DAY;

pass in front of him after it hit him or under him or over him or behind
him."[7] If the truck were really at the left lane and the car were at its right,

B.

C.

IN ACCORDING GREATER WEIGHT TO THE

and the car hit the truck at its front right side, the car would not have

EVIDENCE ADDUCED BY THE RESPONDENTS

landed on the opposite side, but would have been thrown to the right side

HEREIN AND COMPLETELY DISREGARDING THE

of the C-5 Highway. Noteworthy on this issue is the testimony of Dr. Marlon

DEFENSE INTERPOSED BY THE PETITIONERS

Rosendo H. Daza, an expert in the field of physics. He conducted a study

HEREIN;

based on the following assumptions provided by respondents:

IN DISREGARDING COMPLETELY ALL EVIDENCES

1.

Two vehicles collided;

2.

One vehicle is ten times heavier, more massive than

PRESENTED BY THE PETITIONERS HEREIN AND

PROCEEDED TO RENDER ITS DECISION BASED
ON PRESUMPTIONS AND PERSONAL OPINIONS OF

the other;

PEOPLE WHO ARE NOT WITNESSES TO THE

ACCIDENT;

3.

Both vehicles were moving in the same direction and

at the same speed of about 85 to 90 kilometers per

D.

IN AWARDING DAMAGES IN FAVOR OF

hour;

RESPONDENTS HEREIN;
4.
E.

IN FINDING THAT MERCURY DRUG CORPORATION

The heavier vehicle was driving at the innermost left

lane, while the lighter vehicle was at its right.

FAILED TO EXERCISE THE DILIGENCE REQUIRED

IN SUPERVISING ITS EMPLOYEES DESPITE

Dr. Daza testified that given the foregoing assumptions, if the lighter

OVERWHELMING EVIDENCE PRESENTED BY

vehicle hits the right front portion of the heavier vehicle, the general

PETITIONER COMPANY;

direction of the light vehicle after the impact would be to the right side of
the heavy vehicle, not the other way around. The truck, he opined, is more

F.

IN FINDING THAT PETITIONER ROLANDO DEL

difficult to move as it is heavier. It is the car, the lighter vehicle, which

ROSARIO WAS NEGLIGENT IN DRIVING THE

would move to the right of, and away from the truck. Thus, there is very

TRUCK AT THE TIME OF ACCIDENT AND TOTALLY

little chance that the car will move towards the opposite side, i.e., to the left
174 | P a g e

Torts 5

of the truck.
ATTY. DIAZ:
Dr. Daza also gave a further study on the basis of the same assumptions
except that the car is on the left side of the truck, in accordance with the

And this was despite the fact that you were only traveling at the speed of

testimony of respondent Stephen Huang. Dr. Daza concluded that the

seventy five kilometers per hour, jumped over the island, hit the lamppost,

general direction of the car after impact would be to the left of the truck. In

and traveled the three lanes of the opposite lane of C-5 highway, is that

this situation, the middle island against which the car was pinned would

what you want to impress upon this court?

slow down the car, and enable the truck to catch up and hit the car again,
before running over it.[8]

WITNESS:

To support their thesis, petitioners tried to show the damages that the truck

Yes, sir.[10]

sustained at its front right side. The attempt does not impress. The

We therefore find no cogent reason to disturb the findings of the RTC and

photographs presented were taken a month after the accident, and Rogelio

the Court of Appeals. The evidence proves petitioner Del Rosario's

Pantua, the automechanic who repaired the truck and authenticated the

negligence as the direct and proximate cause of the injuries suffered by

photographs, admitted that there were damages also on the left side of the

respondent Stephen Huang. Petitioner Del Rosario failed to do what a

truck.

[9]

reasonable and prudent man would have done under the circumstances.

Worse still, petitioner Del Rosario further admitted that after the impact, he

We now come to the liability of petitioner Mercury Drug as employer of Del

lost control of the truck and failed to apply his brakes. Considering that the

Rosario. Articles 2176 and 2180 of the Civil Code provide:

car was smaller and lighter than the six-wheeler truck, the impact allegedly

Art. 2176. Whoever by act or omission causes damage to another, there

caused by the car when it hit the truck could not possibly be so great to

being fault or negligence, is obliged to pay for the damage done. Such fault

cause petitioner to lose all control that he failed to even step on the brakes.

or negligence, if there is no pre-existing contractual relation between the

He testified, as follows:

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

ATTY. DIAZ:

Chapter.

May I proceed, Your Honor. You were able to apply the brakes, were you

Art. 2180. The obligation imposed by article 2176 is demandable not only

sir?

for one's own acts or omissions, but also for those of persons for whom
one is responsible.

WITNESS:
xxx
No more, sir, because I went over the island.
The owners and managers of an establishment or enterprise are likewise
ATTY. DIAZ:

responsible for damages caused by their employees in the service of the

branches in which the latter are employed or on the occasion of their

Because as you said you lost control, correct sir?

functions.

WITNESS:

xxx
The liability of the employer under Art. 2180 of the Civil Code is direct or

Yes, sir.

immediate. It is not conditioned on a prior recourse against the negligent

employee, or a prior showing of insolvency of such employee. It is also

ATTY. DIAZ:

joint and solidary with the employee.[11]

In other words, sir from the time your truck was hit according to you up to

To be relieved of liability, petitioner Mercury Drug should show that it

the time you rested on the shoulder, you traveled fifty meters?

exercised the diligence of a good father of a family, both in the selection of

the employee and in the supervision of the performance of his duties.

WITNESS:

Thus, in the selection of its prospective employees, the employer is

required to examine them as to their qualifications, experience, and service

Yes, sir, about that distance.

records.[12] With respect to the supervision of its employees, the employer

175 | P a g e

Torts 5

should formulate standard operating procedures, monitor their

a.

Twenty-Three Million Four Hundred Sixty

implementation, and impose disciplinary measures for their breach. To

One Thousand, and Sixty-Two Pesos

establish compliance with these requirements, employers must submit

(P23,461,062.00) for life care cost of

concrete proof, including documentary evidence.

[13]

Stephen;

In the instant case, petitioner Mercury Drug presented testimonial evidence

b.

Ten Million Pesos (P10,000,000.00) as and

on its hiring procedure. According to Mrs. Merlie Caamic, the Recruitment

for lost or impaired earning capacity of

and Training Manager of petitioner Mercury Drug, applicants are required

Stephen;

to take theoretical and actual driving tests, and psychological examination.

In the case of petitioner Del Rosario, however, Mrs. Caamic admitted that
he took the driving tests and psychological examination when he applied
for the position of Delivery Man, but not when he applied for the position of

3.

Four Million Pesos (P4,000,000.00) as moral

damages;

Truck Man. Mrs. Caamic also admitted that petitioner Del Rosario used a
Galant which is a light vehicle, instead of a truck during the driving tests.
Further, no tests were conducted on the motor skills development,

4.

Two Million Pesos (P2,000,000.00) as exemplary

damages; and

perceptual speed, visual attention, depth visualization, eye and hand

coordination and steadiness of petitioner Del Rosario. No NBI and police
clearances were also presented. Lastly, petitioner Del Rosario attended
only three driving seminars on June 30, 2001, February 5, 2000 and July

5.

One Million Pesos (P1,000,000.00) as attorney's fees

and litigation expense.

7, 1984. In effect, the only seminar he attended before the accident which
occurred in 1996 was held twelve years ago in 1984.

The Court of Appeals affirmed the decision of the trial court but reduced
the award of moral damages to P1,000,000.00.

It also appears that petitioner Mercury Drug does not provide for a back-up
driver for long trips. At the time of the accident, petitioner Del Rosario has

With regard to actual damages, Art. 2199 of the Civil Code provides that

been out on the road for more than thirteen hours, without any alternate.

"[E]xcept as provided by law or by stipulation one is entitled to an adequate

Mrs. Caamic testified that she does not know of any company policy

compensation only for such pecuniary loss suffered by him as he has duly

requiring back-up drivers for long trips.

[14]

proved x x x." In the instant case, we uphold the finding that the actual
damages claimed by respondents were supported by receipts. The amount

Petitioner Mercury Drug likewise failed to show that it exercised due

of P2,973,000.00 represented cost of hospital expenses, medicines,

diligence on the supervision and discipline over its employees. In fact, on

medical services and supplies, and nursing care services provided

the day of the accident, petitioner Del Rosario was driving without a

respondent Stephen from December 20, 1996, the day of the accident,

license. He was holding a TVR for reckless driving. He testified that he

until December 1998.

reported the incident to his superior, but nothing was done about it. He was
not suspended or reprimanded.[15] No disciplinary action whatsoever was

Petitioners are also liable for all damages which are the natural and

taken against petitioner Del Rosario. We therefore affirm the finding that

probable consequences of the act or omission complained of. [16] The

petitioner Mercury Drug has failed to discharge its burden of proving that it

doctors who attended to respondent Stephen are one in their prognosis

exercised due diligence in the selection and supervision of its employee,

that his chances of walking again and performing basic body functions are

petitioner Del Rosario.

nil. For the rest of his life, he will need continuous rehabilitation and
therapy to prevent further complications such as pneumonia, bladder and

We now consider the damages which respondents should recover from the

rectum infection, renal failure, sepsis and severe bed sores, osteoporosis

petitioners.

and fractures, and other spinal cord injury-related conditions. He will be

completely dependent on the care and support of his family. We thus affirm

The trial court awarded the following amounts:

the award of P23,461,062.00 for the life care cost of respondent Stephen
Huang, based on his average monthly expense and the actuarial

1.

Two Million Nine Hundred Seventy-Three Thousand

computation of the remaining years that he is expected to live; and the

Pesos (P2,973,000.00) actual damages;

conservative amount of P10,000,000.00, as reduced by the trial court, for

the loss or impairment of his earning capacity,[17] considering his age,

2.

As compensatory damages:

probable life expectancy, the state of his health, and his mental and
176 | P a g e

Torts 5

physical condition before the accident. He was only seventeen years old,
nearly six feet tall and weighed 175 pounds. He was in fourth year high

Respondent Carmen Huang's brother testified on the insensitivity of

school, and a member of the school varsity basketball team. He was also

petitioner Mercury Drug towards the plight of respondent. Stephen, viz.:

class president and editor-in-chief of the school annual. He had shown very Maybe words cannot describe the anger that we feel towards the
good leadership qualities. He was looking forward to his college life, having

defendants. All the time that we were going through the crisis, there was

just passed the entrance examinations of the University of the Philippines,

none (sic) a single sign of nor offer of help, any consolation or anything

De La Salle University, and the University of Asia and the Pacific. The

whatsoever. It is funny because, you know, I have many colleagues,

University of Sto. Tomas even offered him a chance to obtain an athletic

business associates, people even as far as United States, Japan, that I

scholarship, but the accident prevented him from attending the basketball

probably met only once, when they found out, they make a call, they sent

try-outs. Without doubt, he was an exceptional student. He excelled both in

card, they write small notes, but from the defendant, absolute silence. They

his academics and extracurricular undertakings. He is intelligent and

didn't care, and worst, you know, this is a company that have (sic) all the

motivated, a go-getter, as testified by Francisco Lopez, respondent

resources to help us. They were (sic) on our part, it was doubly painful

Stephen Huang's godfather and a bank executive.

[18]

Had the accident not

because we have no choice but to go back to them and buy the medicines

happened, he had a rosy future ahead of him. He wanted to embark on a

that we need for Stephen. So, I don't know how someone will really have

banking career, get married and raise children. Taking into account his

no sense of decency at all to at least find out what happened to my son,

outstanding abilities, he would have enjoyed a successful professional

what is his condition, or if there is anything that they can do to help us.[22]

career in banking. But, as Mr. Lopez stated, it is highly unlikely for

On the matter of exemplary damages, Art. 2231 of the Civil Code provides

someone like respondent to ever secure a job in a bank. To his knowledge,

that in cases of quasi-delicts, exemplary damages may be granted if the

no bank has ever hired a person suffering with the kind of disability as

defendant acted with gross negligence. The records show that at the time

Stephen Huang's.

[19]

of the accident, petitioner Del Rosario was driving without a license

because he was previously ticketed for reckless driving. The evidence also

We likewise uphold the award of moral and exemplary damages and

shows that he failed to step on his brakes immediately after the impact.

attorney's fees.

Had petitioner Del Rosario done so, the injuries which respondent Stephen
sustained could have been greatly reduced. Wanton acts such as that

"The award of moral damages is aimed at a restoration, within the limits of

the possible, of the spiritual status quo ante."

[20]

Moral damages are

committed by petitioner Del Rosario need be suppressed; and employers

like petitioner Mercury Drug should be more circumspect in the observance

designed to compensate and alleviate in some way the physical suffering,

of due diligence in the selection and supervision of their employees. The

mental anguish, fright, serious anxiety, besmirched reputation, wounded

award of exemplary damages in favor of the respondents is therefore

feelings, moral shock, social humiliation, and similar injury unjustly caused

justified.

a person. Although incapable of pecuniary computation, they must be

proportionate to the suffering inflicted.[21] The amount of the award bears

With the award of exemplary damages, we also affirm the grant of

no relation whatsoever with the wealth or means of the offender.

attorney's fees to respondents.[23] In addition, attorney's fees may be

granted when a party is compelled to litigate or incur expenses to protect

In the instant case, respondent Stephen Huang and respondent spouses

his interest by reason of an unjustified act of the other party. [24]

Richard and Carmen Huang testified to the intense suffering they continue
to experience as a result of the accident. Stephen recounted the

Cost against petitioners.

nightmares and traumas he suffers almost every night when he relives the
accident. He also gets depression when he thinks of his bleak future. He

IN VIEW THEREOF, the petition is DENIED. The Decision and Resolution

feels frustration and embarrassment in needing to be helped with almost

of the Court of Appeals dated February 16, 2006 and March 30, 2006,

everything and in his inability to do simple things he used to do. Similarly,

respectively, in CA-G.R. CV No. 83981, are AFFIRMED.

respondent spouses and the rest of the family undergo their own private
suffering. They live with the day-to-day uncertainty of respondent Stephen

SO ORDERED.

Huang's condition. They know that the chance of full recovery is nil.
Moreover, respondent Stephen Huang's paralysis has made him prone to
many other illnesses. His family, especially respondent spouses, have to
make themselves available for Stephen twenty-four hours a day. They
have patterned their daily life around taking care of him, ministering to his
daily needs, altering the lifestyle to which they had been accustomed.
177 | P a g e

Torts 5

CHILD LEARNING CENTER, INC. AND SPOUSES EDGARDO L. LIMON

November 23, 2001.[4]

AND SYLVIA S. LIMON, PETITIONERS, VS. TIMOTHY TAGARIO,

ASSISTED BY HIS PARENTS BASILIO TAGORIO AND

Petitioners question several factual findings of the trial court, which were
affirmed by the Court of Appeals, namely:[5]

PROMULGATED: HERMINIA TAGORIO, RESPONDENTS.

1.

DECISION

That respondent was allegedly trapped inside the

boy's comfort room located at the third floor of the

AZCUNA, J.:

school building on March 5, 1991;

This petition started with a tort case filed with the Regional Trial Court of

2.

Makati by Timothy Tagorio and his parents, Basilio R. Tagorio and

Herminia Tagorio, docketed as Civil Case No. 91-1389. The complaint

That respondent allegedly banged and kicked the

door of said comfort room several times to attract

[1]

attention and that he allegedly yelled thereat for help

alleged that during the school year 1990-1991, Timothy was a Grade IV

which never came;

student at Marymount School, an academic institution operated and

maintained by Child Learning Center, Inc. (CLC). In the afternoon of March

3.

5, 1991, between 1 and 2 p.m., Timothy entered the boy's comfort room at

That respondent was allegedly forced to open the

window of said comfort room to seek help;

the third floor of the Marymount building to answer the call of nature. He,
however, found himself locked inside and unable to get out. Timothy

4.

That the lock set installed at the boy's comfort room

started to panic and so he banged and kicked the door and yelled several

located in the third floor of the school building on

times for help. When no help arrived he decided to open the window to call

March 5, 1991 was allegedly defective and that the

for help. In the process of opening the window, Timothy went right through

same lock set was involved in previous incidents of

and fell down three stories. Timothy was hospitalized and given medical

alleged malfunctioning;

treatment for serious multiple physical injuries.

5.

That petitioner Child Learning Center, Inc. allegedly

An action under Article 2176 of the Civil Code was filed by respondents

failed to install iron grills in the window of the boy's

against the CLC, the members of its Board of Directors, namely Spouses

comfort room at the third floor of the school building;

Edgardo and Sylvia Limon, Alfonso Cruz, Carmelo Narciso and Luningning
Salvador, and the Administrative Officer of Marymount School, Ricardo

6.

That petitioner Child Learning Center, Inc. allegedly

Pilao. In its defense,[2] CLC maintained that there was nothing defective

failed to exercise the due care of a good father of a

about the locking mechanism of the door and that the fall of Timothy was

family in the selection and supervision of its

not due to its fault or negligence. CLC further maintained that it had

employees;

exercised the due care and diligence of a good father of a family to ensure
the safety, well-being and convenience of its students.

7.

That the proximate cause of respondent's accident

was allegedly not due to his own contributory

After trial, the court a quo found in favor of respondents and ordered

negligence;

petitioners CLC and Spouses Limon to pay respondents, jointly and

severally, P200,253.12 as actual and compensatory damages, P200,000

8.

That there was an alleged basis to apply the legal

as moral damages, P50,000 as exemplary damages, P100,000 as

principle of "piercing the veil of corporate entity" in

attorney's fees and the costs of the suit. The trial court disregarded the

resolving the issue of alleged liability of petitioners

corporate fiction of CLC and held the Spouses Limon personally liable

Edgardo L. Limon and Sylvia S. Limon;

because they were the ones who actually managed the affairs of the CLC.
9.

That there was alleged basis for petitioners to pay

Petitioners CLC and the Spouses Limon appealed the decision to the Court

respondent actual, moral and exemplary damages,

of Appeals.

plus attorney's fees;

On September 28, 2001, the Court of Appeals[3] affirmed the decision in

10. That there was an alleged basis in not awarding

toto. Petitioners elevated the case to this Court under Rule 45 of the Rules

petitioners' prayer for moral and exemplary damages,

of Court, after their motion for reconsideration was denied by Resolution of

including attorney's fees.

178 | P a g e

Torts 5

Generally, factual findings of the trial court, affirmed by the Court of

whether the door knob specified in his plans during the construction [was]

Appeals, are final and conclusive and may not be reviewed on appeal. The actually put in place. This is so because he did not verify whether the door
established exceptions are: (1) when the inference made is manifestly

knob he specified w[as] actually put in place at the particular comfort room

mistaken, absurd or impossible; (2) when there is grave abuse of

where Timothy was barred from getting outside. (TSN, pp. 19-20,

discretion; (3) when the findings are grounded entirely on speculations,

December 8, 1994).

surmises or conjectures; (4) when the judgment of the Court of Appeals is

The Court of Appeals held that there was no reason to disturb the factual

based on misapprehension of facts; (5) when the findings of fact are

assessment:[10]

conflicting; (6) when the Court of Appeals, in making its findings, went

After having perused the records, We fail to see any indication of whim or

beyond the issues of the case and the same is contrary to the admissions

arbitrariness on the part of the trial magistrate in his assessment of the

of both appellant and appellee; (7) when the findings of fact are

facts of the case. That said, We deem it not to be within Our business to

conclusions without citation of specific evidence on which they are based;

recast the factual conclusions reached by the court below.

(8) when the Court of Appeals manifestly overlooked certain relevant facts

Petitioners would make much of the point that no direct evidence was

not disputed by the parties and which, if properly considered, would justify

presented to prove that the door knob was indeed defective on the date in

a different conclusion; and (9) when the findings of fact of the Court of

question.

Appeals are premised on the absence of evidence and are contradicted by

the evidence on record.[6]

The fact, however, that Timothy fell out through the window shows that the
door could not be opened from the inside. That sufficiently points to the

On the basis of the records of this case, this Court finds no justification to

fact that something was wrong with the door, if not the door knob, under

reverse the factual findings and consider this case as an exception to the

the principle of res ipsa loquitor. The doctrine of res ipsa loquitor applies

general rule.

where (1) the accident was of such character as to warrant an inference

that it would not have happened except for the defendant's negligence; (2)

In every tort case filed under Article 2176 of the Civil Code, plaintiff has to

the accident must have been caused by an agency or instrumentality within

prove by a preponderance of evidence: (1) the damages suffered by the

the exclusive management or control of the person charged with the

plaintiff; (2) the fault or negligence of the defendant or some other person

negligence complained of; and (3) the accident must not have been due to

for whose act he must respond; and (3) the connection of cause and effect

any voluntary action or contribution on the part of the person injured.[11]

between the fault or negligence and the damages incurred. [7]

Petitioners are clearly answerable for failure to see to it that the doors of
their school toilets are at all times in working condition. The fact that a

Fault, in general, signifies a voluntary act or omission which causes

student had to go through the window, instead of the door, shows that

damage to the right of another giving rise to an obligation on the part of the

something was wrong with the door.

actor to repair such damage. Negligence is the failure to observe for the
protection of the interest of another person that degree of care, precaution

As to the absence of grills on the window, petitioners contend that there

and vigilance which the circumstances justly demand. Fault requires the

was no such requirement under the Building Code. Nevertheless, the fact

execution of a positive act which causes damage to another while

is that such window, as petitioners themselves point out, was

negligence consists of the omission to do acts which result in damage to

approximately 1.5 meters from the floor, so that it was within reach of a

another.[8]

student who finds the regular exit, the door, not functioning. Petitioners,
with the due diligence of a good father of the family, should have

In this tort case, respondents contend that CLC failed to provide

anticipated that a student, locked in the toilet by a non-working door, would

precautionary measures to avoid harm and injury to its students in two

attempt to use the window to call for help or even to get out. Considering

instances: (1) failure to fix a defective door knob despite having been

all the circumstances, therefore, there is sufficient basis to sustain a finding

notified of the problem; and (2) failure to install safety grills on the window

of liability on petitioners' part.

where Timothy fell from.

Petitioners' argument that CLC exercised the due diligence of a good
The trial court found that the lock was defective on March 5, 1991:[9]

father of a family in the selection and supervision of its employees is not

The door knob was defective. After the incident of March 5, 1991, said door decisive. Due diligence in the selection and supervision of employees is
knob was taken off the door of the toilet where Timothy was in. The

applicable where the employer is being held responsible for the acts or

architect who testified during the trial declared that although there were

omissions of others under Article 2180 of the Civil Code.[12] In this case,

standard specifications for door knobs for comfort room[s], and he

CLC's liability is under Article 2176 of the Civil Code, premised on the fact

designed them according to that requirement, he did not investigate

of its own negligence in not ensuring that all its doors are properly
179 | P a g e

Torts 5

maintained.

Our pronouncement that Timothy climbed out of the window because he

could not get out using the door, negates petitioners' other contention that
the proximate cause of the accident was Timothy's own negligence. The
injuries he sustained from the fall were the product of a natural and
continuous sequence, unbroken by any intervening cause, that originated
from CLC's own negligence.

We, however, agree with petitioners that there was no basis to pierce
CLC's separate corporate personality. To disregard the corporate
existence, the plaintiff must prove: (1) Control by the individual owners, not
mere majority or complete stock ownership, resulting in complete
domination not only of finances but of policy and business practice in
respect to a transaction so that the corporate entity as to this transaction
had at the time no separate mind, will or existence of its own; (2) such
control must have been used by the defendant to commit fraud or wrong, to
perpetuate the violation of a statutory or other positive legal duty, or a
dishonest and unjust act in contravention of the plaintiff's legal right; and
(3) the control and breach of duty must proximately cause the injury or
unjust loss complained of. The absence of these elements prevents
piercing the corporate veil.[13] The evidence on record fails to show that
these elements are present, especially given the fact that plaintiffs'
complaint had pleaded that CLC is a corporation duly organized and
existing under the laws of the Philippines.

On 9th and 10th points raised concerning the award of damages, the
resolution would rest on factual determinations by the trial court, affirmed
by the Court of Appeals, and no legal issue warrants our intervention.

WHEREFORE, the petition is partly granted and the Decision and

Resolution of the Court of Appeals in CA-G.R. CV No. 50961 dated
September 28, 2001 and November 23, 2001, respectively, are MODIFIED
in that petitioners Spouses Edgardo and Sylvia Limon are absolved from
personal liability. The Decision and Resolution are AFFIRMED in all other
respects. No pronouncement as to costs.

SO ORDERED.

180 | P a g e

Torts 5

MARIANO C. MENDOZA AND ELVIRA LIM, PETITIONERS, VS.

As a result of the incident, Perez, as well as the helpers on board the Isuzu

SPOUSES LEONORA J. GOMEZ AND GABRIEL V. GOMEZ

truck, namely Melchor V. Anla (Anla), Romeo J. Banca (Banca), and

RESPONDENTS.

Jimmy Repisada (Repisada), sustained injuries necessitating medical

treatment amounting to P11,267.35, which amount was shouldered by

DECISION

respondents. Moreover, the Isuzu truck sustained extensive damages on

its cowl, chassis, lights and steering wheel, amounting to P142,757.40. [14]

PEREZ, J.:
Additionally, respondents averred that the mishap deprived them of a daily
Assailed in the present appeal by certiorari is the Decision[1] dated 29

income of P1,000.00. Engaged in the business of buying plastic scraps and

September 2003 of the Special Fourth Division of the Court of Appeals

delivering them to recycling plants, respondents claimed that the Isuzu

(CA) in CA-G.R. CV No. 71877, which affirmed with modification the

truck was vital in the furtherance of their business.

[2]

Decision dated 31 January 2001 of the Regional Trial Court (RTC),

Branch 172, Valenzuela City in Civil Case No. 5352-V-97, and which

For their part, petitioners capitalized on the issue of ownership of the bus in

effectively allowed the award of actual, moral, and exemplary damages, as

question. Respondents argued that although the registered owner was Lim,

well as attorney's fees and costs of the suit in favor of respondent Spouses

the actual owner of the bus was SPO1 Cirilo Enriquez (Enriquez), who had

Leonora and Gabriel Gomez (respondents).

the bus attached with Mayamy Transportation Company (Mayamy

Transport) under the so-called kabit system. Respondents then

Antecedent Facts

impleaded both Lim and Enriquez.

On 7 March 1997, an Isuzu Elf truck (Isuzu truck) with plate number UAW

Petitioners, on the other hand, presented Teresita Gutierrez (Gutierrez),

582,[3] owned by respondent Leonora J. Gomez (Leonora)[4] and driven by

whose testimony was offered to prove that Mayamy Bus or Mayamy

Antenojenes Perez (Perez),[5] was hit by a Mayamy Transportation bus

Transport is a business name registered under her name, and that such

(Mayamy bus) with temporary plate number 1376-1280,[6] registered under

business is a sole proprietorship. Such was presented by petitioners to

[7]

the name of petitioner Elvira Lim (Lim) and driven by petitioner Mariano

rebut the allegation of respondents that Mayamy Transport is a

C. Mendoza (Mendoza).[8]

corporation;[15] and to show, moreover, that although Gutierrez is the sole

proprietor of Mayamy Transport, she was not impleaded by respondents in

Owing to the incident, an Information for reckless imprudence resulting in

the case at bar.[16]

damage to property and multiple physical injuries was filed against

Mendoza.[9] Mendoza, however, eluded arrest, thus, respondents filed a

After weighing the evidence, the RTC found Mendoza liable for direct

separate complaint for damages against Mendoza and Lim, seeking actual

personal negligence under Article 2176 of the Civil Code, and it also found

damages, compensation for lost income, moral damages, exemplary

Lim vicariously liable under Article 2180 of the same Code.

damages, attorneys fees and costs of the suit.

[10]

This was docketed as

Civil Case No. 5352-V-97.

As regards Lim, the RTC relied on the Certificate of Registration issued by

the Land Transportation Office on 9 December 1996[17] in concluding that

According to PO1 Melchor F. Rosales (PO1 Rosales), investigating officer

she is the registered owner of the bus in question. Although actually owned

of the case, at around 5:30 a.m., the Isuzu truck, coming from Katipunan

by Enriquez, following the established principle in transportation law, Lim,

Road and heading towards E. Rodriguez, Sr. Avenue, was travelling along

as the registered owner, is the one who can be held liable.

the downward portion of Boni Serrano Avenue when, upon reaching the
corner of Riviera Street, fronting St. Ignatius Village, its left front portion
was hit by the Mayamy bus.

[11]

Thus, the RTC disposed of the case as follows:

According to PO1 Rosales, the Mayamy

bus, while traversing the opposite lane, intruded on the lane occupied by

WHEREFORE, judgment is hereby rendered in favor of the [respondents]

the Isuzu truck.[12]

and against the [petitioners]:

PO1 Rosales also reported that Mendoza tried to escape by speeding

1.

Ordering the [petitioners] except Enriquez to pay

away, but he was apprehended in Katipunan Road corner C. P. Garcia

[respondents], jointly and severally, the costs of repair

Avenue by one Traffic Enforcer Galante and a security guard of St. Ignatius

of the damaged vehicle in the amount of P142,757.40;

[13]

Village.

2.

Ordering the defendants except Enriquez to pay

[respondents], jointly and severally, the amount of
181 | P a g e

Torts 5

P1,000.00 per day from March 7, 1997 up to

which is founded on fault or negligence.

November 1997 representing the unrealized income

3.

4.

5.

of the [respondents] when the incident transpired up

b. Exemplary damages in spite of the fact that there is

to the time the damaged Isuzu truck was repaired;

no finding that the vehicular accident was due to

Ordering the [petitioners] except Enriquez to pay

petitioner-drivers gross negligence to be entitled

[respondents], jointly and severally, the amount of

thereto pursuant to Article 2231 of the New Civil Code

P100,000.00 as moral damages, plus a separate

and pertinent decisions of the Supreme Court to that

amount of P50,000.00 as exemplary damages;

effect. The factual basis of the court a quo that the

Ordering the [petitioners] except Enriquez to pay

act of the driver of the bus in attempting to escape

[respondents], jointly and severally, the amount of

after causing the accident in wanton disregard of the

P50,000.00 as attorneys fees;

consequences of his negligent act is such gross

Ordering the [petitioners] except Enriquez to pay

[respondents] the costs of suit.

negligence that justifies an award of exemplary

[18]

damages is an act after the fact which is not within

the contemplation of Article 2231 of the New Civil
Code.

Displeased, petitioners appealed to the CA, which appeal was docketed as

CA-G.R. CV No. 71877. After evaluating the damages awarded by the

c. Attorneys fees in spite of the fact that the assailed

RTC, such were affirmed by the CA with the exception of the award of

decisions of the trial court and the court a quo are

unrealized income which the CA ordered deleted, viz:

bereft with jurisdictions for the award of attorneys

fees pursuant to the pertinent decisions of the

WHEREFORE, premises considered, the appeal is PARTLY GRANTED.

Supreme Court on the matter and provision Article

The judgment of the Regional Trial Court of Valenzuela City, Branch 172

2208 of the New Civil Code. The court a quo

dated January 31, 2001, is MODIFIED, in that the award of P1,000.00 per

erroneously applied the decision of the Supreme

day from March 1997 up to November 1997 representing unrealized

Court in Baas, Jr. vs. Court of Appeals, 325 SCRA

income is DELETED. The award of P142,757.40 for the cost of repair of

259.

the damaged vehicle, the award of P100,000.00 as moral damages, the

The Courts Ruling

award of P50,000.00 as exemplary damages, the award of P50,000.00 as

attorneys fees and the costs of the suit are hereby MAINTAINED.

[19]

The petition is partially meritorious.

The Present Petition
Respondents anchor their claim for damages on Mendozas negligence,
Unsatisfied with the CA ruling, petitioners filed an appeal by certiorari
before the Court, raising the following issues:

banking on Article 2176 of the Civil Code, to wit:

[20]

Whoever by act or omission causes damage to another, there being fault

1.

The court a quo has decided questions of substance

or negligence, is obliged to pay for the damage done. Such fault or

in a way not in accord with law or with the applicable

negligence, if there is no pre-existing contractual relation between the

decisions of the Supreme Court when it awarded:

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

Chapter.

a. Moral damages in spite of the fact that the

[respondents] cause of action is clearly based on

In impleading Lim, on the other hand, respondents invoke the latters

quasi-delict and [respondents] did not sustain

vicarious liability as espoused in Article 2180 of the same Code:

physical injuries to be entitled thereto pursuant to

Article 2219 (2) of the New Civil Code and pertinent

The obligation imposed by Article 2176 is demandable not only for ones

decisions of the Supreme Court to that effect. The

own acts or omissions, but also for those of persons for whom one is

court a quo erroneously concluded that the driver

responsible.

acted in bad faith and erroneously applied the

provision of Article 21 of the same code to justify the

xxxx

award for bad faith is not consistent with quasi-delict

182 | P a g e

Torts 5

Employers shall be liable for the damages caused by their employees and

created by virtue of which the injured person acquires a right to be

household helpers acting within the scope of their assigned tasks, even

indemnified and the person causing the damage is charged with the

though the former are not engaged in any business of industry.

corresponding duty of repairing the damage. The reason for this is found in
the obvious truth that man should subordinate his acts to the precepts of

The first question to address, then, is whether or not Mendozas negligence prudence and if he fails to observe them and causes damage to another,
was duly proven. Negligence is defined as the failure to observe for the

he must repair the damage.[24] His negligence having caused the damage,

protection of the interests of another person, that degree of care,

Mendoza is certainly liable to repair said damage.

precaution and vigilance which the circumstances justly demand, whereby

such other person suffers injury.[21]

Additionally, Mendozas employer may also be held liable under the

doctrine of vicarious liability or imputed negligence. Under such doctrine, a

As found by the RTC, and affirmed by the CA, Mendoza was negligent in

person who has not committed the act or omission which caused damage

driving the subject Mayamy bus, as demonstrated by the fact that, at the

or injury to another may nevertheless be held civilly liable to the latter

time of the collision, the bus intruded on the lane intended for the Isuzu

either directly or subsidiarily under certain circumstances.[25] In our

truck. Having encroached on the opposite lane, Mendoza was clearly in

jurisdiction, vicarious liability or imputed negligence is embodied in Article

violation of traffic laws. Article 2185 of the Civil Code provides that unless

2180 of the Civil Code and the basis for damages in the action under said

there is proof to the contrary, it is presumed that a person driving a motor

article is the direct and primary negligence of the employer in the selection

vehicle has been negligent if at the time of the mishap, he was violating

or supervision, or both, of his employee.[26]

any traffic regulation. In the case at bar, Mendozas violation of traffic laws
In the case at bar, who is deemed as Mendozas employer? Is it Enriquez,

was the proximate cause of the harm.

the actual owner of the bus or Lim, the registered owner of the bus?
Proximate cause is defined as that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the

In Filcar Transport Services v. Espinas,[27] we held that the registered

injury, and without which the result would not have occurred. And more

owner is deemed the employer of the negligent driver, and is thus

comprehensively, the proximate legal cause is that acting first and

vicariously liable under Article 2176, in relation to Article 2180, of the Civil

producing the injury, either immediately or by setting other events in

Code. Citing Equitable Leasing Corporation v. Suyom,[28] the Court ruled

motion, all constituting a natural and continuous chain of events, each

that in so far as third persons are concerned, the registered owner of the

having a close causal connection with its immediate predecessor, the final

motor vehicle is the employer of the negligent driver, and the actual

event in the chain immediately effecting the injury as a natural and

employer is considered merely as an agent of such owner. Thus, whether

probable result of the cause which first acted, under such circumstances

there is an employer-employee relationship between the registered owner

that the person responsible for the first event should, as an ordinary

and the driver is irrelevant in determining the liability of the registered

prudent and intelligent person, have reasonable ground to expect at the

owner who the law holds primarily and directly responsible for any

moment of his act or default that an injury to some person might probably

accident, injury or death caused by the operation of the vehicle in the

result therefrom.

[22]

streets and highways.[29]

The evidence on record shows that before the collision, the Isuzu truck was As early as Erezo v. Jepte,[30] the Court, speaking through Justice Alejo
in its rightful lane, and was even at a stop, having been flagged down by a
security guard of St. Ignatius Village.

[23]

The mishap occurred when the

Labrador summarized the justification for holding the registered owner

directly liable, to wit:

Mayamy bus, travelling at a fast speed as shown by the impact of the

collision, and going in the opposite direction as that of the Isuzu truck,

x x x The main aim of motor vehicle registration is to identify the owner so

encroached on the lane rightfully occupied by said Isuzu truck, and caused

that if any accident happens, or that any damage or injury is caused by the

the latter to spin, injuring Perez, Anla, Banca, and Repisada, and

vehicles on the public highways, responsibility therefore can be fixed on a

considerably damaging the Isuzu truck.

definite individual, the registered owner. Instances are numerous where

vehicle running on public highways caused accidents or injuries to

Having settled the fact of Mendozas negligence, then, the next question

pedestrians or other vehicles without positive identification of the owner or

that confronts us is who may be held liable. According to Manresa, liability

drivers, or with very scant means of identification. It is to forestall these

for personal acts and omissions is founded on that indisputable principle of

circumstances, so inconvenient or prejudicial to the public, that the motor

justice recognized by all legislations that when a person by his act or

vehicle registration is primarily ordained, in the interest of the determination

omission causes damage or prejudice to another, a juridical relation is

of persons responsible for damages or injuries caused on public highways.

183 | P a g e

Torts 5

are those awarded in satisfaction of, or in recompense for, loss or injury

One of the principal purposes of motor vehicles legislation is identification

sustained. They simply make good or replace the loss caused by the

of the vehicle and of the operator, in case of accident; and another is that

wrong.[34]

the knowledge that means of detection are always available may act as a
deterrent from lax observance of the law and of the rules of conservative

Article 2202 of the Civil Code provides that in crimes and quasi- delicts, the

and safe operation. Whatever purpose there may be in these statutes, it is

defendant shall be liable for all damages which are the natural and

subordinate at the last to the primary purpose of rendering it certain that

probable consequences of the act or omission complained of. It is not

the violator of the law or of the rules of safety shall not escape because of

necessary that such damages have been foreseen or could have

lack of means to discover him. The purpose of the statute is thwarted, and

reasonably been foreseen by the defendant. Article 2199 of the same

the displayed number becomes a snare and delusion, if courts will

Code, however, sets the limitation that, except as provided by law or by

entertain such defenses as that put forward by appellee in this case. No

stipulation, one is entitled to an adequate compensation only for such

responsible person or corporation could be held liable for the most

pecuniary loss suffered by him as he has duly proved. As such, to warrant

outrageous acts of negligence, if they should be allowed to place a

an award of actual or compensatory damages, the claimant must prove

middleman between them and the public, and escape liability by the

that the damage sustained is the natural and probable consequences of

manner in which they recompense their servants.[31]

the negligent act and, moreover, the claimant must adequately prove the
amount of such damage.

Generally, when an injury is caused by the negligence of a servant or

employee, there instantly arises a presumption of law that there was

In the case at bar, the RTC, basing on the receipts submitted by

negligence on the part of the master or employer either in the selection of

respondents and which receipts petitioners had the opportunity to examine,

the servant or employee (culpa in eligiendo) or in the supervision over him

found that the total repairs on the Isuzu truck amounted to P142,757.40,

after the selection (culpa vigilando), or both. The presumption is juris

and that the full hospitalization and medical expenses of Perez, Anla,

tantum and not juris et de jure; consequently, it may be rebutted.

Banca, and Repisada amounted to P11,267.35. As such, these are the

Accordingly, the general rule is that if the employer shows to the

amounts that respondents are entitled to as actual and compensatory

satisfaction of the court that in the selection and supervision of his

damages.

employee he has exercised the care and diligence of a good father of a

family, the presumption is overcome and he is relieved of liability. [32]

Although respondents alleged in their complaint that the damage to their

However, with the enactment of the motor vehicle registration law, the

Isuzu truck caused them the loss of a daily income of P1,000.00, such

defenses available under Article 2180 of the Civil Code - that the employee

claim was not duly substantiated by any evidence on record, and thus

acts beyond the scope of his assigned task or that it exercised the due

cannot be awarded in their favor.

diligence of a good father of a family to prevent damage are no longer

available to the registered owner of the motor vehicle, because the motor
vehicle registration law, to a certain extent, modified Article 2180.

[33]

Moral Damages. Moral damages are awarded to enable the injured party
to obtain means, diversions or amusements that will serve to alleviate the
moral suffering he has undergone, by reason of the defendant's culpable

As such, there can be no other conclusion but to hold Lim vicariously liable

action.[35]

with Mendoza.
In prayers for moral damages, however, recovery is more an exception
This does not mean, however, that Lim is left without any recourse against

rather than the rule. Moral damages are not meant to be punitive but are

Enriquez and Mendoza. Under the civil law principle of unjust enrichment,

designed to compensate and alleviate the physical suffering, mental

the registered owner of the motor vehicle has a right to be indemnified by

anguish, fright, serious anxiety, besmirched reputation, wounded feelings,

the actual employer of the driver; and under Article 2181 of the Civil Code,

moral shock, social humiliation, and similar harm unjustly caused to a

whoever pays for the damage caused by his dependents or employees

person. To be entitled to such an award, the claimant must satisfactorily

may recover from the latter what he has paid or delivered in satisfaction of

prove that he has suffered damages and that the injury causing it has

the claim.

sprung from any of the cases listed in Articles 2219 and 2220 of the Civil
Code. Moreover, the damages must be shown to be the proximate result of

Having identified the persons liable, our next question is what may be

a wrongful act or omission. The claimant must thus establish the factual

awarded.

basis of the damages and its causal tie with the acts of the defendant. [36]

Actual or Compensatory Damages. Actual or compensatory damages

In fine, an award of moral damages calls for the presentation of 1)

184 | P a g e

Torts 5

evidence of besmirched reputation or physical, mental or psychological

the following elements: (1) There is an act which is legal; (2) but which is

suffering sustained by the claimant; 2) a culpable act or omission factually

contrary to morals, good custom, public order, or public policy; (3) and it is

established; 3) proof that the wrongful act or omission of the defendant is

done with intent to injure.[43] In the present case, it can hardly be said that

the proximate cause of the damages sustained by the claimant; and 4) the

Mendozas negligent driving and violation of traffic laws are legal acts.

proof that the act is predicated on any of the instances expressed or

Moreover, it was not proven that Mendoza intended to injure Perez, et al.

envisioned by Article 2219 and Article 2220 of the Civil Code.

[37]

Thus, Article 21 finds no application to the case at bar.

A review of the complaint and the transcript of stenographic notes yields

All in all, we find that the RTC and the CA erred in granting moral damages

the pronouncement that respondents neither alleged nor offered any

to respondents.

evidence of besmirched reputation or physical, mental or psychological

suffering incurred by them. All that Leonora and her counsel had to say on

Exemplary Damages. Article 2229 of the Civil Code provides that

the matter of damages other than actual or compensatory damages is

exemplary or corrective damages are imposed, by way of example or

this:

[38]

correction for the public good, in addition to moral, temperate, liquidated or

compensatory damages. Article 2231 of the same Code further states that

Q: Did you ever spend covering attorneys fees?

in quasi-delicts, exemplary damages may be granted if the defendant acted

A: Yes, sir. P50,000.00.

with gross negligence.

Q: Aside from the actual damage that you have mentioned x x x, how much
more would you like this Court to award you by way of moral damages?

Our jurisprudence sets certain conditions when exemplary damages may

A: P100,000.00, sir.

be awarded: First, they may be imposed by way of example or correction

Q: How about exemplary damages?

only in addition, among others, to compensatory damages, and cannot be

A: P50,000.00, sir.

recovered as a matter of right, their determination depending upon the

Q: What happened to you, what did you feel when the defendants failed to

amount of compensatory damages that may be awarded to the claimant.

immediately repair your vehicle that was damaged Madam Witness?

Second, the claimant must first establish his right to moral, temperate,

A: I have incurred expenses and I was forced to apply for a loan, sir.

liquidated or compensatory damages. Third, the wrongful act must be

accompanied by bad faith, and the award would be allowed only if the

In Kierulf v. CA,

[39]

we observed that this Court cannot remind the bench

and the bar often enough that in order that moral damages may be

guilty party acted in a wanton, fraudulent, reckless, oppressive or

malevolent manner.[44]

awarded, there must be pleading and proof of moral suffering, mental

anguish, fright and the like. Citing Francisco v. GSIS,[40] the Court held that

In motor vehicle accident cases, exemplary damages may be awarded

there must be clear testimony on the anguish and other forms of mental

where the defendants misconduct is so flagrant as to transcend simple

suffering. Thus, if the plaintiff fails to take the witness stand and testify as

negligence and be tantamount to positive or affirmative misconduct rather

to his social humiliation, wounded feelings and anxiety, moral damages

than passive or negative misconduct. In characterizing the requisite

cannot be awarded.

positive misconduct which will support a claim for punitive damages, the
courts have used such descriptive terms as willful, wanton, grossly

Moreover, respondents were not able to show that their claim properly falls

negligent, reckless, or malicious, either alone or in combination.[45]

under Articles 2219 and 2220 of the Civil Code. Respondents cannot rely
on Article 2219 (2) of the Civil Code which allows moral damages in quasi-

Gross negligence is the absence of care or diligence as to amount to a

delicts causing physical injuries because in physical injuries, moral

reckless disregard of the safety of persons or property. It evinces a

damages are recoverable only by the injured party,[41] and in the case at

thoughtless disregard of consequences without exerting any effort to avoid

bar, herein respondents were not the ones who were actually injured.

them.[46]

In B.F. Metal (Corp.) v. Sps. Lomotan, et al.,[42] the Court, in a claim for

In the case at bar, having established respondents right to compensatory

damages based on quasi-delict causing physical injuries, similarly

damages, exemplary damages are also in order, given the fact that

disallowed an award of moral damages to the owners of the damaged

Mendoza was grossly negligent in driving the Mayamy bus. His act of

vehicle, when neither of them figured in the accident and sustained injuries. intruding or encroaching on the lane rightfully occupied by the Isuzu truck
shows his reckless disregard for safety.
Neither can respondents rely on Article 21 of the Civil Code as the RTC
erroneously did. Article 21 deals with acts contra bonus mores, and has

In Bao v. Bachelor Express, Inc., et al.,[47] where an erring bus, in the

185 | P a g e

Torts 5

process of overtaking a jeepney, also encroached on the opposite lane,

Following established jurisprudence,[51] however, the CA should have

and consequently collided with a dump truck, the Court held the driver of

disallowed on appeal said award of attorneys fees as the RTC failed to

the bus grossly negligent and affirmed the award of exemplary damages.

substantiate said award.

Attorneys Fees. Article 2208 of the Civil Code enumerates the instances

Costs of suit. The Rules of Court provide that, generally, costs shall be

when attorneys fees may be recovered:

allowed to the prevailing party as a matter of course, thus:[52]

Art. 2208. In the absence of stipulation, attorneys fees and expenses of

litigation, other than judicial costs, cannot be recovered, except:

Section 1. Costs ordinarily follow results of suit.- Unless otherwise provided

in these rules, costs shall be allowed to the prevailing party as a matter of

(1) When exemplary damages are awarded;

(2) When the defendants act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;

course, but the court shall have power, for special reasons, to adjudge that
either party shall pay the costs of an action, or that the same be divided, as
may be equitable. No costs shall be allowed against the Republic of the
Philippines, unless otherwise provided by law.

(4) In case of a clearly unfounded civil action or proceeding against the

plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to

In the present case, the award of costs of suit to respondents, as the

prevailing party, is in order.

satisfy the plaintiffs valid and demandable claim;

(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and
skilled workers;
(8) In actions for indemnity under workmens compensation and
employers liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;

Interests. Interest by way of damages has been defined as interest

allowed in actions for breach of contract or tort for the unlawful detention of
money already due. This type of interest is frequently called moratory
interest. Interest as a part of damage, is allowed, not by application of
arbitrary rules, but as a result of the justice of the individual case and as
compensation to the injured party.[53]

(10)When at least double judicial costs are awarded;

(11)In any other case where the court deems it just and equitable that
attorneys fees and expenses of litigation should be recovered;

The legal provision on interests in quasi-delicts is Article 2211 of the Civil

Code which provides that in crimes and quasi-delicts, interest as part of the
damage, may, in a proper case, be adjudicated in the discretion of the

In all cases, the attorneys fees and expenses of litigation must be

court.

reasonable.
Generally, interest is allowed as a matter of right for failure to pay
From the very opening sentence of Article 2208 of the Civil Code, it is
clearly intended to retain the award of attorneys fees as the exception in
our law, as the general rule remains that attorneys fees are not
recoverable in the absence of a stipulation thereto, the reason being that it

liquidated claims when due.[54] For unliquidated claims, however, Article

2213 of the Civil Code provides that interest cannot be recovered upon
unliquidated claims or damages, except when the demand can be
established with reasonable certainty.

is not sound policy to set a premium on the right to litigate.[48]

In the case at bar, although the award of exemplary damages is
As such, in Spouses Agustin v. CA,[49] we held that, the award of attorneys
fees being an exception rather than the general rule, it is necessary for the
court to make findings of facts and law that would bring the case within the
exception and justify the grant of such award. Thus, the reason for the
award of attorneys fees must be stated in the text of the courts decision;
otherwise, if it is stated only in the dispositive portion of the decision, the
same must be disallowed on appeal.

unliquidated in the sense that petitioners cannot know for sure, before
judgment, the exact amount that they are required to pay to respondents,
the award of actual or compensatory damages, however, such as the truck
repairs and medical expenses, is arguably liquidated in that they can be
measured against a reasonably certain standard.[55] Moreover, justice
would seem to require that the delay in paying for past losses which can be
made reasonably certain should be compensated through an award of
interest.[56]

In the case at bar, the RTC Decision had nil discussion on the propriety of
attorneys fees, and it merely awarded such in the dispositive. The CA
Decision, on the other hand, merely stated that the award of attorneys fees

WHEREFORE, premises considered, the Court Resolves to PARTIALLY

GRANT the appeal by certiorari, as follows:

is merited as such is allowed when exemplary damages are awarded. [50]

186 | P a g e

Torts 5

1) DECLARE Mariano Mendoza and Elvira Lim solidarily liable to

respondent Spouses Leonora and Gabriel Gomez ;
2) MAINTAIN the award of actual or compensatory damages in the
amount of Pl42,757.40 for the repair of the Isuzu Elf truck, with legal
interest beginning 31 January 2001 until fully paid;
3) GRANT additional actual or compensatory damages in the amount of
P11,267.35 for the medical expenses shouldered by respondent
Spouses Leonora and Gabriel Gomez, with legal interest beginning 31
January 2001 until fully paid;
4) DELETE the award of moral damages;
5) MAINTAIN the award of exemplary damages at P50,000.00;
6) DELETE the award of attorney's fees; and
7) MAINTAIN the award of costs of suit.

SO ORDERED.

187 | P a g e

Torts 5

E. MERRITT, PLAINTIFF AND APPELLANT, VS. GOVERNMENT OF

THE PHILIPPINE ISLANDS DEFENDANT AND APPELLANT.

DECISION

back part of his head, while blood issued from his nose and he was entirely
unconscious.

"The marks revealed" that he had one or more fractures of the skull and
that the grey matter and brain mass had suffered material injury. At ten

TRENT, J.:

o'clock of the night in question, which was the time set for performing the
operation, his pulse was so weak and so irregular that, in his opinion, there

This is an appeal by both parties from a judgment of the Court of First

was little hope that he would live. His right leg was broken in such a way

Instance of the city of Manila in favor of the plaintiff for the sum of P14,741,

that the fracture extended to the outer skin in such manner that it might be

together with the costs of the cause.

regarded as double and the wound would be exposed to infection, for

which reason it was of the most serious nature.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the
general damages which the plaintiff suffered to P5,000, instead of P25,000

"At another examination six days before the day of the trial, Dr. Saleeby

as claimed in the complaint" and (2) "in limiting the time when plaintiff was

noticed that the plaintiff's leg showed a contraction of an inch and a half

entirely disabled to two months and twenty-one days and fixing the

and a curvature that made his leg very weak and painful at the point of the

damage accordingly in the sum of P2,666, instead of P6,000 as claimed by

fracture. Examination of his head revealed a notable readjustment of the

plaintiff in his complaint."

functions of the brain and nerves. The patient apparently was slightly deaf,
had a slight weakness in his eyes and in his mental condition. This latter

The Attorney-General on behalf of the defendant urges that the trial court

weakness was always noticed when the plaintiff had to do any difficult

erred: (a) in finding that the collision between the plaintiff's motorcycle and

mental labor, especially when he attempted to use his memory for

the ambulance of the General Hospital was due to the negligence of the

mathematical calculations.

chauffeur; (b) in holding that the Government of the Philippine Islands is

liable for the damages sustained by the plaintiff as a result of the collision,

"According to the various merchants who testified as witnesses, the

even if it be true that the collision was due to the negligence of the

plaintiff's mental and physical condition prior to the accident was excellent,

chauffeur; and (c) in rendering judgment against the defendant for the sum

and that after having received the injuries that have been discussed, his

of P14,741.

physical condition had undergone a noticeable depreciation, for he had lost

the agility, energy, and ability that he had constantly displayed before the

The trial court's findings of fact, which are fully supported by the record, are accident as one of the best constructors of wooden buildings and he could
as follows:

not now earn even a half of the income that he had secured for his work

because he had lost 50 per cent of his efficiency. As a contractor, he could

"It is a fact not disputed by counsel for the defendant that when the plaintiff, no longer, as he had before done, climb up ladders and scaffoldings to
riding on a motorcycle, was going toward the western part of Calle Padre
reach the highest parts of the building.
Faura, passing along the west side thereof at a speed of ten to twelve
miles an hour, upon crossing Taft Avenue and when he was ten feet from

"As a consequence of the loss the plaintiff suffered in the efficiency of his

the southwestern intersection of said streets', the General Hospital

work as a contractor, he had to dissolve the partnership he had formed

ambulance, upon reaching said avenue, instead of turning toward the

with the engineer, Wilson, because he was incapacitated from making

south, after passing the center thereof, so that it would be on the left side

mathematical calculations on account of the condition of his leg and of his

of said avenue, as is prescribed by the ordinance and the Motor Vehicle

mental faculties, and he had to give up a contract he had for the

Act, turned suddenly and unexpectedly and long before reaching the

construction of the Uy Chaco building."

center of the street, into the right side of Taft Avenue, without having
sounded any whistle or horn, by which movement it struck the plaintiff, who

We may say at the outset that we are in full accord with the trial court to the

was already six feet from the southwestern point or from the post placed

effect that the collision between the plaintiff's motorcycle and the

there.

ambulance of the General Hospital was due solely to the negligence of the
chauffeur.

"By reason of the resulting collision, the plaintiff was so severely injured
that, according to Dr. Saleeby, who examined him on the very same day

The two items which constitute a part of the P14,741 and which are drawn

that he was taken to the General Hospital, he was suffering from a

in question by the plaintiff are (a) P5,000, the amount awarded for

depression in the left parietal region, a wound in the same place and in the

permanent injuries, and (b) the P2,666, the amount allowed for the loss of

188 | P a g e

Torts 5

wages during the time the plaintiff was incapacitated from pursuing his

is hereby authorized and directed to appear at the trial on the behalf of the

occupation. We find nothing in the record which would justify us in

Government of said Islands, to defend said Government at the same.

increasing the amount of the first. As to the second, the record shows, and
the trial court so found, that the plaintiff's services as a contractor were

"SEC. 2. This Act shall take effect on its passage.

worth Pl,000 per month. The court, however, limited the time to two months
and twenty-one days, which the plaintiff was actually confined in the

"Enacted, February 3, 1915."

hospital. In this we think there was error, because it was clearly established
that the plaintiff was wholly incapacitated for a period of six months. The

Did the defendant, in enacting the above quoted Act, simply waive its

mere fact that he remained in the hospital only two months and twenty-one

immunity from suit or did it also concede its liability to the plaintiff? If only

days while the remainder of the six months was spent in his home, would

the former, then it cannot be held that the Act created any new cause of

not prevent recovery for the whole time. We, therefore, find that the

action in favor of the plaintiff or extended the defendant's liability to any

amount of damages sustained by the plaintiff, without any fault on his part,

case not previously recognized.

is P18,075.
All admit that the Insular Government (the defendant) cannot be sued by
As the negligence which caused the collision is a tort committed by an

an individual without its consent. It is also admitted that the instant case is

agent or employee of the Government, the inquiry at once arises whether

one against the Government. As the consent of the Government to be sued

the Government is legally liable for the damages resulting therefrom.

by the plaintiff was entirely voluntary on its part, it is our duty to look
carefully into the terms of the consent, and render judgment accordingly.

Act No. 2457, effective February 3,1915, reads:

The plaintiff was authorized to bring this action against the Government "in
"An Act authorizing E. Merritt to bring suit against the Government of the

order to fix the responsibility for the collision between his motorcycle and

Philippine Islands and authorizing the Attorney-General of said Islands to

the ambulance of the General Hospital and to determine the amount of the

appear in said suit.

damages, if any, to which Mr. E. Merritt is entitled on account of said

collision, * * *." These were the two questions submitted to the court for

"Whereas a claim has been filed against the Government of the Philippine

determination. The Act was passed "in order that said questions may be

Islands by Mr. E. Merritt, of Manila, for damages resulting from a collision

decided." We have "decided" that the accident was due solely to the

between his motorcycle and the ambulance of the General Hospital on

negligence of the chauffeur, who was at the time an employee of the

March twenty-fifth, nineteen hundred and thirteen;

defendant, and we have also fixed the amount of damages sustained by

the plaintiff as a result of the collision. Does the Act authorize us to hold

"Whereas it is not known who is responsible for the accident nor is it

that the Government is legally liable for that amount? If not, we must look

possible to determine the amount of damages, if any, to which the claimant

elsewhere for such authority, if it exists.

is entitled; and
The Government of the Philippine Islands having been "modeled after the
"Whereas the Director of Public Works and the Attorney-General

Federal and State Governments in the United States," we may look to the

recommend that an Act be passed by the Legislature authorizing Mr. E.

decisions of the high courts of that country for aid in determining the

Merritt to bring suit in the courts against the Government, in order that said

purpose and scope of Act No. 2457.

questions may be decided: Now, therefore,

In the United States the rule that the state is not liable for the torts
"By authority of the United States, be it enacted by the Philippine

committed by its officers or agents whom it employs, except when

Legislature, that:

expressly made so by legislative enactment, is well settled. "The

Government," says Justice Story, "does not undertake to guarantee to any

"SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of

person the fidelity of the officers or agents whom it employs, since that

First Instance of the city of Manila against the Government of the Philippine would involve it in all its operations in endless embarrassments, difficulties
Islands in order to fix the responsibility for the collision between his

and losses, which would be subversive of the public interest." (Claussen

motorcycle and the ambulance of the General Hospital, and to determine

vs. City of Luverne, 103 Minn., 491, citing U. S. vs, Kirkpatrick, 9 Wheat,

the amount of the damages, if any, to which Mr. E. Merritt is entitled on

720; 6 L. Ed., 199; and Beers vs. State, 20 How., 527; 15 L. Ed., 991.)

account of said collision, and the Attorney-General of the Philippine Islands

189 | P a g e

Torts 5

In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover

immunity from suit. It simply gives authority to commence suit for the

damages from the state for personal injuries received on account of the

purpose of settling plaintiff's controversies with the state. Nowhere in the

negligence of the state officers at the state fair, a state institution created

act is there a whisper or suggestion that the court or courts in the

by the legislature for the purpose of improving agricultural and kindred

disposition of the suit shall depart from well established principles of law, or

industries; to disseminate information calculated to educate and benefit the

that the amount of damages is the only question to be settled. The act

industrial classes; and to advance by such means the material interests of

opened the door of the court to the plaintiff. It did not pass upon the

the state, being objects similar to those sought by the public school

question of liability, but left the suit just where it would be in the absence of

system. In passing upon the question of the state's liability for the

the state's immunity from suit. If the Legislature had intended to change the

negligent acts of its officers or agents, the court said:

rule that obtained in this state so long and to declare liability on the part of
the state, it would not have left so important a matter to mere inference, but

"No claim arises against any government in favor of an individual, by

would have done so in express terms. (Murdock Grate Co. vs.

reason of the misfeasance, laches, or unauthorized exercise of powers by

Commonwealth, 152 Mass., 28; 24 N. E., 854; 8 L. R. A., 399.)"

its officers or agents." (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter
vs. State, 86 N. C, 51, 53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal.,

In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893,

690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93

relied upon and considered, are as follows:

Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)
"All persons who have, or shall hereafter have, claims on contract or for
As to the scope of legislative enactments permitting individuals to sue the

negligence against the state not allowed by the state board of examiners,

state where the cause of action arises out of either tort or contract, the rule

are hereby authorized, on the terms and conditions herein contained, to

is stated in 36 Cyc, 915, thus:

bring suit thereon against the state in any of the courts of this state of
competent jurisdiction, and prosecute the same to final judgment. The rules

"By consenting to be sued a state simply waives its immunity from suit. It

of practice in civil cases shall apply to such suits, except as herein

does not thereby concede its liability to plaintiff, or create any cause of

otherwise provided."

action in his favor, or extend its liability to any cause not previously
recognized. It merely gives a remedy to enforce a preexisting liability and

And the court said:

submits itself to the jurisdiction of the court, subject to its right to interpose
any lawful defense."

"This statute has been considered by this court in at least two cases,
arising under different facts, and in both it was held that said statute did not

In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April

create any liability or cause of action against the state where none existed

16, 1915, the Act of 1913, which authorized the bringing of this suit, read:

before, but merely gave an additional remedy to enforce such liability as

would have existed if the statute had not been enacted. (Chapman vs.

"SECTION 1. Authority is hereby given to George Apfelbacher, of the town

State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)"

of Summit, Waukesha County, Wisconsin, to bring suit in such court or

courts and in such form or forms as he may be advised for the purpose of

A statute of Massachusetts enacted in 1887 gave to the superior court

settling and determining all controversies which he may now have with the

"jurisdiction of all claims against the commonwealth, whether at law or in

State of Wisconsin, or its duly authorized officers and agents, relative to

equity," with an exception not necessary to be here mentioned. In

the mill property of said George Apfelbacher, the fish hatchery of the State

construing this statute the court, in Murdock Grate Co. vs. Commonwealth

of Wisconsin on the Bark River, and the mill property of Evan Humphrey at

(152 Mass., 28), said:

the lower end of Nagawicka Lake, and relative to the use of the waters of
said Bark River and Nagawicka Lake, all in the county of Waukesha,

"The statute we are discussing discloses no intention to create against the

Wisconsin."

state a new and heretofore unrecognized class of liabilities, but only an

intention to provide a judicial tribunal where well recognized existing

In determining the scope of this act, the court said:

liabilities can be adjudicated."

"Plaintiff claims that by the enactment of this law the legislature admitted

In Sipple vs. State (99 N. Y., 284), where the board of the canal claims

liability on the part of the state for the acts of its officers, and that the suit

had, by the terms of the statute of New York, jurisdiction of claims for

now stands just as it would stand between private parties. It is difficult to

damages for injuries in the management of the canals such as the plaintiff

see how the act does, or was intended to do, more than remove the state's

had sustained, Chief Justice Ruger remarks: "It must be conceded that the

190 | P a g e

Torts 5

state can be made liable for injuries arising from the negligence of its

in said article prove that they employed all the diligence of a good father of

agents or servants, only by force of some positive statute assuming such

a family to avoid the damage, and among these persons, called upon to

liability."

answer in a direct and not a subsidiary manner, are found, in addition to

the mother or the father in a proper case, guardians and owners or

It being quite clear that Act No. 2457 does not operate to extend the

directors of an establishment or enterprise, the state, but not always,

Government's liability to any cause not previously recognized, we will now

except when it acts through the agency of a special agent, doubtless

examine the substantive law touching the defendant's liability for the

because and only in this case, the fault or negligence, which is the original

negligent acts of its officers, agents, and employees. Paragraph 5 of article

basis of this kind of objections, must be presumed to lie with the state.

1903 of the Civil Code reads:

"That although in some cases the state might by virtue of the general
"The state is liable in this sense when it acts through a special agent, but

principle set forth in article 1902 respond for all the damage that is

not when the damage should have been caused by the official to whom

occasioned to private parties by orders or resolutions which by fault or

properly it pertained to do the act performed, in which case the provisions

negligence are made by branches of the central administration acting in the

of the preceding article shall be applicable."

name and representation of the state itself and as an external expression

of its sovereignty in the exercise of its executive powers, yet said article is

The supreme court of Spain in defining the scope of this paragraph said:

not applicable in the case of damages said to have been occasioned to the
petitioners by an executive official, acting in the exercise of his powers, in

"That the obligation to indemnify for damages which a third person causes

proceedings to enforce the collections of certain property taxes owing by

to another by his fault or negligence is based, as is evidenced by the same

the owner of the property which they hold in sublease.

Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or
negligence, takes part in the act or omission of the third party who caused

"That the responsibility of the state is limited by article 1903 to the case

the damage. It follows therefrom that the state, by virtue of such provisions

wherein it acts through a special agent (and a special agent, in the sense

of law, is not responsible for the damages suffered by private individuals in

in which these words are employed, is one who receives a definite and

consequence of acts performed by its employees in the discharge of the

fixed order or commission, foreign to the exercise of the duties of his office

functions pertaining to their office, because neither fault nor even

if he is a special official) so that in representation of the state and being

negligence can be presumed on the part of the state in the organization of

bound to act as an agent thereof, he executes the trust confided to him.

branches of the public service and in the appointment of its agents; on the

This concept does not apply to any executive agent who is an employee of

contrary, we must presuppose all foresight humanly possible on its part in

the active administration and who on his own responsibility performs the

order that each branch of service serves the general weal and that of

functions which are inherent in and naturally pertain to his office and which

private persons interested in its operation. Between these latter and the

are regulated by law and the regulations." (Supreme Court of Spain, May

state, therefore, no relations of a private nature governed by the civil law

18, 1904; 98 Jur. Civ., 389, 390.)

can arise except in a case where the state acts as a judicial person
capable of acquiring rights and contracting obligations." (Supreme Court of "That according to paragraph 5 of article 1903 of the Civil Code and the
Spain, January 7, 1898; 83 Jur. Civ., 24.)

principle laid down in a decision, among others, of the 18th of May, 1904,
in a damage case, the responsibility of the state is limited to that which it

"That the Civil Code in chapter 2, title 16, book 4, regulates the obligations

contracts through a special agent, duly empowered by a definite order or

which arise out of fault or negligence; and whereas in the first article

commission to perform some act or charged with some definite purpose

thereof, No. 1902, where the general principle is laid down that where a

which gives rise to the claim, and not where the claim is based on acts or

person who by an act or omission causes damage to another through fault

omissions imputable to a public official charged with some administrative or

or negligence, shall be obliged to repair the damage so done, reference is

technical office who can be held to the proper responsibility in the manner

made to acts or omissions of the persons who directly or indirectly cause

laid down by the law of civil responsibility. Consequently, the trial court in

the damage, the following article refers to third persons and imposes an

not so deciding and in sentencing the said entity to the payment of

identical obligation upon those who maintain fixed relations of authority and damages, caused by an official of the second class referred to, has by
superiority over the authors of the damage, because the law presumes that

erroneous interpretation infringed the provisions of articles 1902 and 1903

in consequence of such relations the evil caused by their own fault or

of the Civil Code." (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ.,

negligence is imputable to them. This legal presumption gives way to proof, 146.)
however, because, as held in the last paragraph of article 1903,
responsibility for acts of third persons ceases when the persons mentioned
191 | P a g e

Torts 5

It is, therefore, evident that the State (the Government of the Philippine
Islands) is only liable, according to the above quoted decisions of the
Supreme Court of Spain, for the acts of its agents, officers and employees
when they act as special agents within the meaning of paragraph 5 of
article 1903, supra, and that the chauffeur of the ambulance of the General
Hospital was not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed,
without costs in this instance. Whether the Government intends to make
itself legally liable for the amount of damages above set forth, which the
plaintiff has sustained by reason of the negligent acts of one of its
employees, by legislative enactment and by appropriating sufficient funds
therefor, we are not called upon to determine. This matter rests solely with
the Legislature and not with the courts.

192 | P a g e

Torts 5

INOCENCIO ROSETE, PETITIONER, VS. THE AUDITOR GENERAL,

the preceding article shall be applicable.'

RESPONDENT
The supreme court of Spain in defining the scope of this paragraph said:
DECISION
" 'That the obligation to indemnify for damages which a third person causes
FERIA, J.:

to another by his fault or negligence is based, as is evidenced by the same

Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or

This is an appeal from the decision of the Insular Auditor denying the claim

negligence, takes part in the act or omission of the third party who caused

of Inocencio Rosete and others against the Government in the amount of

the damage. It follows therefrom that the state, by virtue of such provisions

P35,376, for damages caused to buildings belonging to the claimant,

of law, is not responsible for the damage suffered by private individuals in

which according to the appellant's claim were destroyed by fire that came

consequence of acts performed by its employees in the discharge of the

from the contiguous warehouse, of the Emergency Control Administration,

functions pertaining to their office, because neither fault nor even

ECA, located at No. 2262 Azcarraga, due to the negligence of a certain

negligence can be presumed on the part of the state in the organization of

Jose Frayno y Panlilio in igniting recklessly his cigarette-lighter near a branches of the public service and in the appointment of its agents; on the
five gallon drum into which gasoline was being drained, and of the officers

contrary, we must presuppose all foresight humanly possible on its part in

of the said ECA, which is an office or agency of the Government, in storing

order that each branch of service serves the general weal and that of

gasoline in said warehouse contrary to the provisions of Ordinances of the

private persons interested in its operation. Between these latter and the

City of Manila.

state, therefore, no relations of a private nature governed by the civil law

can arise except in a case where the state acts as a judicial person

It is not necessary for us to pass upon the facts alleged by the appellant,

capable of acquiring rights and contracting obligations.' (Supreme Court of

but only on the question whether, assuming them to be true, the Insular

Spain, January 7, 1898; 83 Jur. Civ., 24.)

Auditor erred in denying or dismissing the appellant's claim.

*

The claimant contends that the Auditor General erred in not finding that the
government agency or instrumentality known as the Emergency Control

'That the responsibility of the state is limited by article 1903 to the case

Administration of the officers thereof, were guilty of negligence in storing a

wherein it acts through a special agent (and a special agent, in the sense

highly combustible and inflammable substance in its warehouse on bodega

in which these words are employed, is one who receives a definite and

in Manila in violation of City Ordinances, and therefore the government is

fixed order or commission, foreign to the exercise of the duties of his office

liable for the damages sustained by the claimant under article 1903 of the

if he is a special official) so that in representation of the state and being

Civil Code, which in its pertinent part reads as follows:

bound to act as an agent thereof, he executes the trust confided to him.

This concept does not apply to any executive agent who is an employee of

"ART. 1903. The obligation imposed by the preceding article is enforceable

the active administration and who on his own responsibility performs the

not only for personal acts and omissions but also for those persons for

functions which are inherent in and naturally pertain to his office and which

whom another is responsible.

are regulated by law and.the regulations.' (Supreme Court of Spain, May

18, 1904; 98 Jur. Civ., 389, 390.)

*
'That according to paragraph 5 of article 1903 of the Civil Code and the
"The state is liable in this sense when it acts through a special agent, but

principle laid down in a decision, among others, of the 18th of May,

not when the damage should have been caused by the official to whom it

1904, in a damage case, the responsibility of the state is limited to that

properly pertained to do the act performed, in which case the provisions of

which it contracts through a special agent, duly empowered by a definite

the preceding article shall be applicable."

order or commission to perform some act or charged with some definite

In the case of Merritt vs. Government of the Philippine Islands (34 Phil.,

purpose which gives rise to the claim, and not where the claim is based on

311), this Court held the following:

acts or omissions imputable to a public official charged with some

"*

administrative or technical office who can be held to the proper

paragraph 5 of article 1903 of the Civil Code reads:

responsibility in the manner laid down by the law of civil responsibility.

'The state is liable in this sense when it acts through a special agent, but
not when the damage should have been caused by the official to whom

Consequently, the trial court in not so deciding and in sentencing the said

properly it pertained to do the act performed, in which cast the provisions of entity to the payment of damages, caused by an official of the
193 | P a g e

Torts 5

second class referred to, has by erroneous interpretation infringed the

provisions of article 1902 and 1903 of the Civil Code.'

(Supreme Court

of Spain, July 30, 1911; 122 Jur. Civ., 146.)"

There being no showing that whatever negligence may be imputed to the
Emergency Control Administration or its officers, was done by an special
agent, because the officers of the Emergency Control Administration did
not act as special agents of the government within the above defined
meaning of that word in article 1903 of the Civil Code in storing gasoline in
warehouse of the ECA, the government is not responsible for the damages
caused through such negligence.

The case of Marine Trading vs. Government, 39 Phil., 29, cited by the
appellant, is inapplicable, because the plaintiff in that case recovered under
the special provisions of articles 826, 827, 828 and 830 of the Code of
Commerce and the Philippine Marine Regulations of the Collector of
Customs, regarding collision of vessels, and not on the ground of tort in
general provided for in article 1903 of the Civil Code.

Act No. 327, in authorizing the filing of claims against the Government with
the Insular Auditor, and appeal by private persons or entities from the
latter's decision to the Supreme Court, does not make any and all claims
against the Government allowable, and the latter responsible for all claims
which may be filed with the Insular Auditor under the provisions of said Act.

In view of the foregoing, the decision appealed from is affirmed.

194 | P a g e

Torts 5

SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA,

PETITIONERS, VS. HONORABLE INOCENCIO D. MALIAMAN AND

Jose City, for damages in connection with the death of their son resulting
from the aforestated accident.

NATIONAL IRRIGATION ADMINISTRATION, RESPONDENTS.

After trial, the trial court rendered judgment on March 20, 1980 which
[G.R. NO. 61045. DECEMBER 1, 1989]

directed respondent National Irrigation Administration to pay damages

(death benefits) and actual expenses to petitioners. The dispositive portion

NATIONAL IRRIGATION ADMINISTRATION, APPELLANT, VS.

of the decision reads thus:

SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA,

APPELLEES.

"x x x x x Judgment is hereby rendered ordering the defendant National

Irrigation Administration to pay to the heirs of the deceased P12,000.00 for

DECISION

the death of Francisco Fontanilla: P3,389.00 which the parents of the

deceased had spent for the hospitalization and burial of the deceased

PARAS, J.:

Francisco Fontanilla; and to pay the costs." (Brief for the petitioners
spouses Fontanilla, p. 4; Rollo, p. 132)

In G.R. No. 55963, the petition for review on certiorari seeks the affirmance
of the decision dated March 20, 1980 of the then Court of First Instance of

Respondent National Irrigation Administration filed on April 21, 1980, its

Nueva Ecija, Branch VIII, at San Jose City, and its modification with

motion for reconsideration of the aforesaid decision which respondent trial

respect to the denial of petitioner's claim for moral and exemplary damages court denied in its Order of June 13, 1980. Respondent National Irrigation
and attorney's fees.

Administration thus appealed said decision to the Court of Appeals (C.A.G.R. NO. 67237-R) where it filed its brief for appellant in support of its

In G.R. No. 61045, respondent National Irrigation Administration seeks the

position.

reversal of the aforesaid decision of the lower court. The original appeal of
this case before the Court of Appeals was certified to this Court and in the

Instead of filing the required brief in the aforecited Court of Appeals case,

resolution of July 7, 1982, it was docketed with the aforecited number. And petitioners filed the instant petition with this Court.
in the resolution of April 3, 1989, this case was consolidated with G.R. No.
55963.

The sole issue for the resolution of the Court is: Whether or not the award
of moral damages, exemplary damages and attorney's fees is legally

It appears that on August 21, 1976 at about 6:30 P.M., a pick-up owned

proper in a complaint for damages based on quasi-delict which resulted in

and operated by respondent National Irrigation Administration, a

the death of the son of herein petitioners.

government agency bearing Plate No. IN-651, then driven officially by

Hugo Garcia, an employee of said agency as its regular driver, bumped a

Petitioners allege:

bicycle ridden by Francisco Fontanilla, son of herein petitioners, and

Restituto Deligo at Maasin, San Jose City along the Maharlika Highway.

1.

The award of moral damages specifically allowable under

As a result of the impact, Francisco Fontanilla and Restituto Deligo were

paragraph 3 of Article 2206 of the New Civil Code which provides that the

injured and brought to the San Jose City Emergency Hospital for treatment. spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of
Fontanilla was later transferred to the Cabanatuan Provincial Hospital
where he died.

the death of the deceased. Should moral damages be granted, the award
should be made to each of petitioners-spouses individually and in varying

Garcia was then a regular driver of respondent National Irrigation

amounts depending upon proof of mental and depth of intensity of the

Administration who, at the time of the accident, was a licensed professional same, which should not be less than P50,000.00 for each of them.
driver and who qualified for employment as such regular driver of
respondent after having passed the written and oral examinations on traffic

2.

rules and maintenance of vehicles given by National Irrigation

respondent National Irrigation Administration acted with gross negligence

The decision of the trial court had made an impression that

Administration authorities.

because of the accident and the subsequent failure of the National

Irrigation Administration personnel including the driver to stop in order to

The within petition is thus an offshoot of the action (Civil Case No. SJC-56)

give assistance to the victims. Thus, by reason of the gross negligence of

instituted by petitioners-spouses on April 17, 1978 against respondent NIA

respondent, petitioners become entitled to exemplary damages under Arts.

before the then Court of First Instance of Nueva Ecija, Branch VIII at San

2231 and 2229 of the New Civil Code.

195 | P a g e

Torts 5

3.

Petitioners are entitled to an award of attorney's fees, the

special agent who was performing a job or act foreign to his usual duties.

amount of which (20%) had been sufficiently established in the hearing of

Hence, the liability for the tortious act should not be borne by respondent

May 23, 1979.

government agency but by driver Garcia who should answer for the
consequences of his act.

4.

This petition has been filed only for the purpose of reviewing the

findings of the lower court upon which the disallowance of moral damages,

6.

Even as the trial court touched on the failure or laxity of

exemplary damages and attorney's fees was based and not for the

respondent National Irrigation Administration in exercising due diligence in

purpose of disturbing the other findings of fact and conclusions of law.

the selection and supervision of its employee, the matter of due diligence is
not an issue in this case since driver Garcia was not its special agent but a

The Solicitor General, taking up the cudgels for public respondent National

regular driver of the vehicle.

Irrigation Administration, contends thus:

The sole legal question on whether or not petitioners may be entitled to an
1.

The filing of the instant petition is not proper in view of the appeal award of moral and exemplary damages and attorney's fees can very well

taken by respondent National Irrigation Administration to the Court of

be answered with the application of Arts. 2176 and 2180 of the New Civil

Appeals against the judgment sought to be reviewed. The focal issue

Code.

raised in respondent's appeal to the Court of Appeals involves the question

as to whether or not the driver of the vehicle that bumped the victims was

Art. 2176 thus provides:

negligent in his operation of said vehicle. It thus becomes necessary that

before petitioners' claim for moral and exemplary damages could be

"Whoever by act or omission causes damage to another, there being fault

resolved, there should first be a finding of negligence on the part of

or negligence, is obliged to pay for the damage done. Such fault or

respondent's employee-driver. In this regard, the Solicitor General alleges

negligence, if there is no pre-existing contractual relation between the

that the trial court decision does not categorically contain such finding.

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

Chapter."

2.

The filing of the "Appearance and Urgent Motion For Leave to

File Plaintiff-Appellee's Brief" dated December 28, 1981 by petitioners in

Paragraphs 5 and 6 of Art. 2180 read as follows:

the appeal (CA-G.R. NO. 67237-R; and G.R. NO. 61045) of the respondent
National Irrigation Administration before the Court of Appeals, is an explicit

"Employers shall be liable for the damages caused by their employees and

admission of said petitioners that the herein petition is not proper.

household helpers acting within the scope of their assigned tasks, even

Inconsistent procedures are manifest because while petitioners question

though the former are not engaged in any business or industry."

the findings of fact in the Court of Appeals, they present only questions of
law before this Court which posture confirms their admission of the facts.

"The State is responsible in like manner when it acts through a special

agent; but not when the damage has been caused by the official to whom

3.

The fact that the parties failed to agree on whether or not

negligence caused the vehicular accident involves a question of fact which

the task done properly pertains, in which case what is provided in Art. 2176
shall be applicable."

petitioners should have brought to the Court of Appeals within the

reglementary period. Hence, the decision of the trial court has become

The liability of the State has two aspects, namely:

final as to the petitioners and for this reason alone, the petition should be
dismissed.

1.

Its public or governmental aspects where it is liable for the

tortious acts of special agents only.

4.

Respondent Judge acted within his jurisdiction, sound discretion

and in conformity with the law.

2.

Its private or business aspects (as when it engages in private

enterprises) where it becomes liable as an ordinary employer. (p. 961, Civil

5.

Respondents do not assail petitioners' claim to moral and

Code of the Philippines; Annotated. Paras; 1986 Ed.)

exemplary damages by reason of the shock and subsequent illness they

suffered because of the death of their son. Respondent National Irrigation
Administration, however, avers that it cannot be held liable for the

In this jurisdiction, the State assumes a limited liability for the damage
caused by the tortious acts or conduct of its special agent.

damages because it is an agency of the State performing governmental

functions and driver Hugo Garcia was a regular driver of the vehicle, not a

196 | P a g e

Torts 5

Under the aforequoted paragraph 6 of Art. 2180, the State has voluntarily

"(d)

To do all such other things and to transact all such business as

assumed liability for acts done through special agents. The State's agent,

are directly or indirectly necessary, incidental or conducive to the

if a public official, must not only be specially commissioned to do a

attainment of the above objectives."

particular task but that such task must be foreign to said official's usual
governmental functions. If the State's agent is not a public official, and is

Indubitably, the NIA is a government corporation with juridical personality

commissioned to perform non-governmental functions, then the State

and not a mere agency of the government. Since it is a corporate body

assumes the role of an ordinary employer and will be held liable as such

performing non-governmental functions, it now becomes liable for the

for its agent's tort. Where the government commissions a private individual damage caused by the accident resulting from the tortious act of its driverfor a special governmental task, it is acting through a special agent within

employee. In this particular case, the NIA assumes the responsibility of an

the meaning of the provision. (Torts and Damages, Sangco, p. 347, 1984

ordinary employer and as such, it becomes answerable for damages.

Ed.)
This assumption of liability, however, is predicated upon the existence of
Certain functions and activities, which can be performed only by the

negligence on the part of respondent NIA. The negligence referred to here

government, are more or less generally agreed to be "governmental" in

is the negligence of supervision.

character, and so the State is immune from tort liability. On the other hand,
a service which might as well be provided by a private corporation, and

At this juncture, the matter of due diligence on the part of respondent NIA

particularly when it collects revenues from it, the function is considered a

becomes a crucial issue in determining its liability since it has been

"proprietary" one, as to which there may be liability for the torts of agents

established that respondent is a government agency performing proprietary

within the scope of their employment.

functions and as such, it assumes the posture of an ordinary employer

which, under Par. 5 of Art. 2180, is responsible for the damages caused by

The National Irrigation Administration is an agency of the government

its employees provided that it has failed to observe or exercise due

exercising proprietary functions, by express provision of Rep. Act No.

diligence in the selection and supervision of the driver.

3601. Section 1 of said Act provides:

It will be noted from the assailed decision of the trial court that "as a result
"Section 1. Name and domicile. - A body corporate is hereby created

of the impact, Francisco Fontanilla was thrown to a distance 50 meters

which shall be known as the National Irrigation Administration, hereinafter

away from the point of impact while Restituto Deligo was thrown a little bit

called the NIA for short, which shall be organized immediately after the

further away. The impact took place almost at the edge of the cemented

approval of this Act. It shall have its principal seat of business in the City of portion of the road." (Underlining supplied) [page 26, Rollo]
Manila and shall have representatives in all provinces for the proper
conduct of its business.'

The lower court further declared that "a speeding vehicle coming in contact
with a person causes force and impact upon the vehicle that anyone in the

Section 2 of said law spells out some of the NIA's proprietary functions.

vehicle cannot fail to notice. As a matter of fact, the impact was so strong

Thus -

as shown by the fact that the vehicle suffered dents on the right side of the
radiator guard, the hood, the fender and a crack on the radiator as shown

"Sec. 2. Powers and objectives. - The NIA shall have the following powers by the investigation report (Exhibit "E"). (Underscoring supplied) [page 29,
and objectives:

Rollo]

"(a)

xxxxxxxxxxxxxxxxxx

It should be emphasized that the accident happened along the Marikina

"(b)

xxxxxxxxxxxxxxxxxx

National Road within the city limits of San Jose City, an urban area.
Considering the fact that the victim was thrown 50 meters away from the
point of impact, there is a strong indication that driver Garcia was driving at
"(c)

To collect from the users of each irrigation system constructed

a high speed. This is confirmed by the fact that the pick-up suffered

by it such fees as may be necessary to finance the continuous operation of

substantial and heavy damage as above-described and the fact that the

the system and reimburse within a certain period not less than twenty-five

NIA group was then "in a hurry to reach the campsite as early as possible",

years cost of construction thereof; and

as shown by their not stopping to find out what they bumped as would have
been their normal and initial reaction.

197 | P a g e

Torts 5

Evidently, there was negligence in the supervision of the driver for the
reason that they were travelling at a high speed within the city limits and
yet the supervisor of the group, Ely Salonga, failed to caution and make the
driver observe the proper and allowed speed limit within the city. Under
the situation, such negligence is further aggravated by their desire to reach
their destination without even checking whether or not the vehicle suffered
damage from the object it bumped, thus showing imprudence and
recklessness on the part of both the driver and the supervisor in the group.

Significantly, this Court has ruled that even if the employer can prove the
diligence in the selection and supervision (the latter aspect has not been
established herein) of the employee, still if he ratifies the wrongful acts, or
take no step to avert further damage, the employer would still be liable.
(Maxion vs. Manila Railroad Co., 44 Phil. 597).

Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810,
August 31, 1970, 34 SCRA 618), this Court held that a driver should be
especially watchful in anticipation of others who may be using the highway,
and his failure to keep a proper look out for reasons and objects in the line
to be traversed constitutes negligence.

Considering the foregoing, respondent NIA is hereby directed to pay

herein petitioners-spouses the amounts of P12,000.00 for the death of
Francisco Fontanilla; P3,389.00 for hospitalization and burial expenses of
the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as
exemplary damages and attorney's fees of 20% of the total award.

SO ORDERED.

198 | P a g e