Republic of the Philippines readmitted one week later due to "vomiting of saliva.
" 2 The
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 74431 November 6, 1989
PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA
UY, respondents.
Pablo P. Garcia for petitioners.
Roberto R. Palmares for private respondents.
CRUZ, J.:
Little Theness Tan Uy was dead at the age of three. Her parents
said she died because she was bitten by a dog of the
petitioners, but the latter denied this, claiming they had nothing
to do with the dog. The Uys sued the Vestils, who were
sustained by the trial court. On appeal, the decision of the
court a quo was reversed in favor of the Uys. The Vestils are
now before us. They ask us to set aside the judgment of the
respondent court and to reinstate that of the trial court.
On July 29, 1915, Theness was bitten by a dog while she was
playing with a child of the petitioners in the house of the late
Vicente Miranda, the father of Purita Vestil, at F. Ramos Street in
Cebu City. She was rushed to the Cebu General Hospital, where
she was treated for "multiple lacerated wounds on the
forehead" 1 and administered an anti-rabies vaccine by Dr.
Antonio Tautjo. She was discharged after nine days but was
following day, on August 15, 1975, the child died. The cause of
death was certified as broncho-pneumonia. 3
Seven months later, the Uys sued for damages, alleging that the
Vestils were liable to them as the possessors of "Andoy," the
dog that bit and eventually killed their daughter. The Vestils
rejected the charge, insisting that the dog belonged to the
deceased Vicente Miranda, that it was a tame animal, and that
in any case no one had witnessed it bite Theness. After trial,
Judge Jose R. Ramolete of the Court of First Instance of Cebu
sustained the defendants and dismissed the complaint. 4
The respondent court arrived at a different conclusion when the
case was appealed. 5 It found that the Vestils were in possession
of the house and the dog and so should be responsible under
Article 2183 of the Civil Code for the injuries caused by the dog.
It also held that the child had died as a result of the dog bites
and not for causes independent thereof as submitted by the
appellees. Accordingly, the Vestils were ordered to pay the Uys
damages in the amount of P30,000.00 for the death of Theness,
P12,000.00 for medical and hospitalization expenses, and
P2,000.00 as attorney's fees.
In the proceedings now before us, Purita Vestil insists that she is
not the owner of the house or of the dog left by her father as his
estate has not yet been partitioned and there are other heirs to
the property. Pursuing the logic of the Uys, she claims, even her
sister living in Canada would be held responsible for the acts of
the dog simply because she is one of Miranda's heirs. However,
that is hardly the point. What must be determined is the
possession of the dog that admittedly was staying in the house
in question, regardless of the ownership of the dog or of the
house.
Article 2183 reads as follows:
1
 The possessor of an animal or whoever may make
use of the same is responsible for the damage
which it may cause, although it may escape or be
lost. 'This responsibility shall cease only in case
the damages should come from force
majeure from the fault of the person who has
suffered damage.
Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a
carabao gored him to death and his heirs thereupon sued the
owner of the animal for damages. The complaint was dismissed
on the ground that it was the caretaker's duty to prevent the
carabao from causing injury to any one, including himself.
Purita Vestil's testimony that she was not in possession of
Miranda's house is hardly credible. She said that the occupants
of the house left by her father were related to him ("one way or
the other") and maintained themselves out of a common fund or
by some kind of arrangement (on which, however, she did not
elaborate ). 7 She mentioned as many as ten of such relatives
who had stayed in the house at one time or another although
they did not appear to be close kin. 8 She at least implied that
they did not pay any rent, presumably because of their relation
with Vicente Miranda notwithstanding that she herself did not
seem to know them very well.
There is contrary evidence that the occupants of the house,
were boarders (or more of boarders than relatives) who paid the
petitioners for providing them with meals and accommodations.
It also appears that Purita Vestil had hired a maid, Dolores
Jumao-as, who did the cooking and cleaning in the said house
for its occupants. 9 Her mother, Pacita, who was a nursemaid of
Purita herself, categorically declared that the petitioners were
maintaining boarders in the house where Theness was bitten by
a dog. 10 Another witness, Marcial Lao, testified that he was
indeed a boarder and that the Vestils were maintaining the
house for business purposes. 11 And although Purita denied
paying the water bills for the house, the private respondents
submitted documentary evidence of her application for water
connection with the Cebu Water District, which strongly
suggested that she was administering the house in question. 12
While it is true that she is not really the owner of the house,
which was still part of Vicente Miranda's estate, there is no doubt
that she and her husband were its possessors at the time of the
incident in question. She was the only heir residing in Cebu City
and the most logical person to take care of the property, which
was only six kilometers from her own house. 13 Moreover, there
is evidence showing that she and her family regularly went to the
house, once or twice weekly, according to at least one
witness, 14 and used it virtually as a second house. Interestingly,
her own daughter was playing in the house with Theness when
the little girl was bitten by the dog. 15 The dog itself remained in
the house even after the death of Vicente Miranda in 1973 and
until 1975, when the incident in question occurred. It is also
noteworthy that the petitioners offered to assist the Uys with
their hospitalization expenses although Purita said she knew
them only casually. 16
The petitioners also argue that even assuming that they were
the possessors of the dog that bit Theness there was no clear
showing that she died as a result thereof. On the contrary, the
death certificate 17 declared that she died of broncho-
pneumonia, which had nothing to do with the dog bites for which
she had been previously hospitalized. The Court need not
involve itself in an extended scientific discussion of the causal
connection between the dog bites and the certified cause of
death except to note that, first, Theness developed hydrophobia,
a symptom of rabies, as a result of the dog bites, and second,
that asphyxia broncho-pneumonia, which ultimately caused her
death, was a complication of rabies. That Theness became
2
afraid of water after she was bitten by the dog is established by
the following testimony of Dr. Tautjo:
COURT: I think there was mention of rabies in the
report in the second admission?
A: Now, the child was continuously vomiting just
before I referred to Dr. Co earlier in the morning
and then the father, because the child was asking
for water, the father tried to give the child water
and this child went under the bed, she did not like
to drink the water and there was fright in her
eyeballs. For this reason, because I was in danger
there was rabies, I called Dr. Co.
Q: In other words, the child had hydrophobia?
18
A: Yes, sir.
As for the link between rabies and broncho-pneumonia, the
doctor had the following to say under oath:
A: Now, as 1 said before, broncho-pneumonia can
result from physical, chemical and bacterial
means. ... It can be the result of infection, now, so
if you have any other disease which can lower your
resistance you can also get pneumonia.
xxx xxx xxx
Q: Would you say that a person who has rabies
may die of complication which is broncho-
pneumonia?
A: Yes.
Q: For the record, I am manifesting that this book
shown the witness is know as CURRENT
DIANOSIS & TREATMENT, 1968 by Henry
Brainerd, Sheldon Margen and Milton Chaton.
Now, I invite your attention, doctor, to page 751 of
this book under the title "Rabies." There is on this
page, "Prognosis" as a result of rabies and it says:
Once the symptoms, have appeared death
inevitably occurs after 2-3 days as a result of
cardiac or respiratory failure or generalized
paralysis. After a positive diagnosis of rabies or
after a bite by a suspected animal if the animal
cannot be observed or if the bite is on the head,
give rabies vaccine (duck embryo). Do you believe
in this statement?
A: Yes.
Q: Would you say therefore that persons who have
rabies may die of respiratory failure which leave in
the form of bronco-pneumonia?
A: Broncho-pneumonia can be a complication of
rabies. 19
On the strength of the foregoing testimony, the Court finds that
the link between the dog bites and the certified cause of death
has beep satisfactorily established. We also reiterate our ruling
in Sison v. Sun Life Assurance Company of Canada, 20 that the
death certificate is not conclusive proof of the cause of death but
only of the fact of death. Indeed, the evidence of the child's
hydrophobia is sufficient to convince us that she died because
she was bitten by the dog even if the death certificate stated a
different cause of death. The petitioner's contention that they
could not be expected to exercise remote control of the dog is
not acceptable. In fact, Article 2183 of the Civil Code holds the
possessor liable even if the animal should "escape or be lost"
3
and so be removed from his control. And it does not matter
either that, as the petitioners also contend, the dog was tame
and was merely provoked by the child into biting her. The law
does not speak only of vicious animals but covers even tame
ones as long as they cause injury. As for the alleged
provocation, the petitioners forget that Theness was only three
years old at the time she was attacked and can hardly be faulted
for whatever she might have done to the animal.

It is worth observing that the above defenses of the petitioners

are an implied rejection of their original posture that there was
no proof that it was the dog in their father's house that bit
Theness.

According to Manresa the obligation imposed by Article 2183 of

the Civil Code is not based on the negligence or on the
presumed lack of vigilance of the possessor or user of the
animal causing the damage. It is based on natural equity and on
the principle of social interest that he who possesses animals for
his utility, pleasure or service must answer for the damage which
such animal may cause. 21

We sustain the findings of the Court of Appeals and approve the

monetary awards except only as to the medical and
hospitalization expenses, which are reduced to P2,026.69, as
prayed for in the complaint. While there is no recompense that
can bring back to the private respondents the child they have
lost, their pain should at least be assuaged by the civil damages
to which they are entitled.
Republic of the Philippines
WHEREFORE, the challenged decision is AFFIRMED as above
SUPREME COURT
modified. The petition is DENIED, with costs against the
Manila
petitioners. It is so ordered.
EN BANC
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

4
 G.R. No. L-31864 September 29, 1972
THE HOMEOWNERS ASSOCIATION OF EL DEPOSITO,
BARRIO CORAZON DE JESUS, SAN JUAN, RIZAL,
represented by its President NAPOLEON VILORIA,
PANTALEON PENARANDA, JULIAN PENARANDA, PILAR
DEL PILAR, MIGUEL POMPERADA, ESTER PORRAS,
TEODULO ROBLANDO, PABLO RELATO, ABRAHAM
REMPULA, HUGO ROBETO, ASUNCION REYES, ERNESTO
SALAZAR, FEDERICO SALAZAR, JUANITO SALLEGUE,
SAMONTE NESTOR, BEN SANTOS, ELEUTERIA SANTOS,
DOMINGO SARMOY, CORA SASTRE, TRANSFIGURACION
SOMBE, PEDRO SUBONG, IGMEDIO TAMBONG,
SALVADOR TERUEL, ALFREDO TORRES, CELSO TORRES,
ROQUE TUMAMPIL, TITA TUTANES, CATALINA UNANA,
DIONISIA VIGIL, ASUNCION VILLANUEVA, DELMO
VILLANUEVA, JOSE VILORIA, JR., BENIGNO VIRAY,
DOMINADOR WINDECA, SALVADOR YULO, JOSUE DAGON,
FELIPE TORRENTE, LEON LUCAS, JACINTO PASCUAL, and
THREE HUNDRED SIXTY ONE OTHER MEMBERS, THE
HOMEOWNERS ASSOCIATION OF EL DEPOSITO, BARRIO
HALO HALO, SAN JUAN, RIZAL, represented by its
President AQUILINO BELO, JUAN GARCIA, GREGORIO
GARCIA, PABLO REANO, DOMINADOR TIBAR, GERONIMO
LAZARRAGA, and ONE HUNDRED THIRTY OTHER
MEMBERS, petitioners,
vs.
HON. GUARDSON LOOD, Judge of The Court of First
Instance of Rizal, Branch VI, Pasig, Rizal, THE
MUNICIPALITY OF SAN JUAN, RIZAL, MUNICIPAL MAYOR
OF SAN JUAN, MUNICIPAL COUNCIL OF SAN JUAN, RIZAL,
ENGINEERING DISTRICT OF RIZAL, ACTING THRU
NICOLAS ALDANA, ENGINEER II, Pasig, Rizal, respondents.
H. A. Jambora for petitioners.
Office of the Solicitor General for respondents.
PER CURIAM:p
Petitioners filed on April 15, 1970 this action for certiorari and
prohibition with preliminary injunction to set aside respondent
court's questioned orders dated February 9, 1970 and March 30,
1970 denying petitioners' motions for issuance of a writ of
preliminary injunction to stay the demolition and removal of their
houses and structures on a parcel of public land in barrios
Corazon de Jesus and Halo Halo in San Juan, Rizal, (more
popularly known as "El Deposito" from the Spanish times),
pending final outcome of Civil Case No. 11078 filed by them
before respondent court.
Petitioners' action below was one for declaratory relief to declare
as null and void as ex post facto legislation, municipal ordinance
No. 89, as amended, of respondent Municipality of San Juan,
prohibiting squatting on public property and providing a penalty
therefor, under which ordinance, petitioners claimed,
respondents were summarily demolishing and removing their
houses and improvements.
On April 20, 1970, upon issuance of summons requiring
respondents to answer the petition, the Court issued a
temporary restraining order restraining respondents, until further
orders, "from proceeding with the summary destruction, removal
and demolition of all other houses found in the premises of the
land in barrio Corazon de Jesus and barrio Halo Halo, San Juan,
Rizal, by reason of Ordinance No. 89-Amd. as amended, passed
by the Municipal Council of San Juan, Rizal, on April 26, 1968 ...
."
5
Respondents filed their answer in due course and the case was
thereafter submitted for decision with the filing by the parties of
their respective memoranda in lieu of oral argument.
As restated by petitioners themselves in their memorandum, the
main issue at bar is whether respondent judge "exceeded his
authority and jurisdiction and gravely abused his discretion" 1 in
issuing the questioned orders of February 9, and March 30,
1970, denying the preliminary injunction sought to stay
demolition and removal of petitioners' houses and structures.
Petitioners raise as issues also the issue of validity and
constitutionality of municipal ordinance No. 89-Amended as
questioned by them in their action below, and whether
respondent Engineer may remove or demolish their houses
without a special court demolition order under said challenged
ordinance; and furthermore, "whether the filing of the petition for
compulsory registration in LRC Cad. Case No. N-6, LRC Cad.
Rec. No. N-511 which placed in issue the status of the land as
demanded for reasons of public interest where the houses and
other improvements of the petitioners as claimants in the
cadastral proceeding are found, precludes the enforcement of
municipal ordinance No. 89-Amd." 2
Subsequent events have cleared up the matter of this last issue
as to the alleged pendency of a petition in petitioner's favor for
compulsory registration of the land in question, as shown by
proceedings held in the Rizal court of first instance and this
Court as hereinafter recounted.
A motion to reopen the cadastral proceedings 3 was filed under
date of August 2, 1971 by petitioners as claimants, citing the
passage on June 19, 1971 of Republic Act No. 6236 which
extended the time limit (not to extend beyond December 31,
1976) for filing of applications for free patents and for judicial
confirmation of imperfect and incomplete titles to public
agricultural lands.
The court of first instance of Rizal, Branch I, presided by Judge
Emilio V. Salas had denied such reopening of the proceedings
as per its order dated August 20, 1971, "it appearing that the
instant case was dismissed without prejudice in our order dated
April 6, 1970, which order was affirmed by the Supreme Court in
its resolution in G.R. No.
L-32156, dated August 10, 1970, which became final and
executory since September 1, 1970." 4
Petitioners-claimants' motion for reconsideration,
notwithstanding, withdrawal of the opposition of respondent
municipality of San Juan, Rizal, was denied in the Rizal court of
first instance's order dated November 16, 1971.
A special civil action for certiorari and mandamus was then filed
on December 13, 1971 by petitioners-claimants and docketed as
Case L-34438 of this Court. 5 Said action was dismissed for lack
of merit per the Court's resolution therein of December 16, 1971.
Reconsideration was denied for lack of merit per the Court's
resolution of May 23, 1972, after the Court had received the
comment of the therein respondent Metropolitan Waterworks
and Sewerage System, (as successor-in-interest of Nawasa)
asserting its ownership of the property since its survey in 1910
as conducted for the Metropolitan Water District (predecessor-in-
interest of Nawasa) and approved by the Director of Lands. In its
comment, said therein respondent MWSS further averred that
within the property which had been declared for taxation
purposes in the name of the old Metropolitan Water District (with
a total area of 132,597 square meters, of which 14,138 square
meters are used for public roads) 6 are "aqueducts and an
underground reservoir", and that its predecessor-in-interest
(Nawasa) had sold a portion (16,409 sq. meters) of the property
to the Municipality of San Juan (on which are constructed the
municipality's elementary school, home economics building and
gymnasium), leased a portion thereof (4,102 sq. meters) for the
municipality's public high school, and "leased some lots to those
6
who have squatted on the said property." 50,000 square meters
or five hectares of the property were likewise leased by the
Nawasa to the Pinaglabanan Commemorative Commission
(created by Executive Order No. 263 of the President of the
Philippines dated August 15, 1957) 7 for a 99-year period from
August 21, 1963 for the site of the national shrine to
commemorate the "Battle of Pinaglabanan" on August 28 and
29, 1896 between the Katipunan revolutionaries and the
Spanish garrison defending the gunpowder dump (called the
"polvorin") in San Juan, Rizal. Final entry of the dismissal order
of December 16, 1971 was made as of June 12, 1972. Hence, it
is quite clear that as of now, there exist no proceedings,
cadastral or otherwise, questioning the public character of the
land and asserting petitioners' alleged claims of ownership
thereto.
On the main issue at bar, the Court is satisfied that by no means
may respondent court be said to have exceeded its authority or
gravely abused its discretion in issuing its questioned orders
denying petitioners' motion below for a writ of preliminary
injunction allegedly "to maintain the status quo" and stay
demolition and removal of their illegal constructions found to be
public nuisances per se and serious hazards to public
health, 8 by virtue of the following principal considerations:
1. As found in respondent court's extended two-page order of
February 9, 1970 9 and ten-page order of March 30,
1970 10 denying reconsideration, petitioners' motions to maintain
the alleged status quo were based on the same grounds already
reiterated before and denied by then Judge (now appellate
associate justice) Andres Reyes who was then presiding over
respondent court in an order dated September 19,
1968, 11 which was upheld in a similar action for certiorari by the
Court of Appeals in its decision of February 4, 1969. 12
2. In both said proceedings before Judge Reyes and the Court
of Appeals, petitioners succeeded in obtaining restraining orders
or preliminary writs of injunction to stay demolition, which were
dissolved upon said court's handing down their order or decision
on the merits of the injunction petitions submitted by petitioners.
With petitioners definitely having lost their bid to reopen the
cadastral proceedings to pursue their alleged claims of
ownership over the lands occupied by their constructions, supra,
no further reason or justification exists to continue the stay order
against the removal and demolition of their constructions.
3. As was well stated in then Judge Reyes' order of September
19, 1968, petitioners failed after several hearings "to show that
they have even a color of title to entitle them to exercise the right
of possession to the premises in question. On the other hand,
the land is admittedly public land and consequently the
petitioners have no right to possession thereof....." 13
4. Petitioners' lack of right to the injunction sought by them was
further shown in the Court of Appeals' decision of February 4,
1969, where it noted that "their very evidence, their documentary
proof, would justify that their houses were built upon land of the
Metropolitan Water District, that is to say, of the Philippine
Government, therefore, such tax declarations of petitioners'
houses themselves are the best proof of their admission that
their possession of the lands they occupy was not and could not
be adverse" 14 and that "their shanties pose a veritable danger to
public health." 15
5. No error, much less abuse of authority or discretion, could be
attributed to respondent court's statements and reasons for
denying the injunction sought by petitioners, as per its order of
March 30, 1970, denying reconsideration, as follows:
... The issues raised by the pleadings to determine
whether or not the petitioners are entitled to a writ
of preliminary injunction, or a status quo, in the
7
 words of the petitioners, had been resolved several Manila area) may be abated without judicial proceedings under
times not only by this Court but also by the Court our Civil Code. 17
of Appeals, and this Court believes that insofar as
the same grounds are concerned, they are res As stated in Sitchon vs. Aquino, 18 the police power of the state
judicata justifies the abatement or destruction by summary proceedings
of public nuisances per se. No error, much less any abuse of
xxx xxx xxx discretion, grave or otherwise, may therefore be attributed
against respondent court in having issued its orders denying for
Lastly, the Court does not lose sight of the fact that imperative reasons of public health and welfare the preliminary
the land in question is public land, in the sense that injunction sought again by petitioners to allow them to continue
it is untitled. However, as the government now occupying the land in question with their condemned
contends, the land in question is clothed with a constructions and structures.
public purpose to be utilized for public service by
the government. This fact has not been denied and ACCORDINGLY, judgment is hereby rendered dismissing the
as a matter of fact, the petitioners admit that the petition. The temporary restraining order heretofore issued on
land in question is public land. ... April 20, 1970 is hereby dissolved and such dissolution is
declared immediately executory. No pronouncement as to costs.
6. The question of validity or unconstitutionality of municipal
ordinance No. 89-Amended need not be resolved in this
proceeding, as it should first properly be submitted for resolution
of the lower court in the action below. Suffice it to note that the
Solicitor General appears to have correctly stated the actual
situation in that petitioners do not dispute the authority of the
San Juan council to pass ordinances providing for the summary
abatement of public nuisances, and that the ordinance in
question may not be faulted for being ex post facto in application
since it "does not seek to punish an action done which was
innocent before the passage of the same. Rather, it punishes the
present and continuing act of unlawful occupancy of public
property or properties intended for public use." 16At any rate, the
decisive point is that independently of the said ordinance,
petitioners' constructions which have been duly found to be
public nuisances per se (without provision for accumulation or
disposal of waste matters and constructed without building
permits contiguously to and therefore liable to pollute one of the
main water pipelines which supplies potable water to the Greater

8
 amended, seeking to set aside the March 31, 2008
Decision[1]and September 10, 2008 Resolution [2] of the Court of
Appeals (CA) in CA-G.R. CV. No. 83675. The CA affirmed in
toto the Decision[3] of the Regional Trial Court (RTC)
of Marikina City, Branch 192 granting respondents prayer for
injunction against petitioner.

FIRST DIVISION The antecedents follow:

JAIME S. PEREZ, both in his personal

and official capacity as Chief, Respondent-spouses Fortunito Madrona and Yolanda B.
Marikina Demolition Office, Pante are registered owners of a residential property located
Petitioner,
in Lot 22, Block 5, France Street corner Italy Street,
Greenheights Subdivision, Phase II, Marikina City and covered
- versus - by Transfer Certificate of Title No. 169365 [4] of the Registry of
Deeds of Marikina. In 1989, respondents built their house
thereon and enclosed it with a concrete fence and steel gate.
SPOUSES FORTUNITO L. MADRONA
and YOLANDA B. PANTE,
Respondents. In 1999, respondents received the following letter
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - dated May 25, 1999 from petitioner Jaime S. Perez, Chief of the
- - - - -x
Marikina Demolition Office:
DECISION Owner Judge F.L. Madrona
Lot 22 B. 5 Phase II
VILLARAMA, JR., J.:
Green Heights[, Concepcion,] Marikina City

G./ Gng. F.L. Madrona[:]

Before this Court is a petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure, as

9
Ito po ay may kinalaman sa bahay/istruktura na kaukulang hakbang na naa[a]yon sa itinatadhana
inyong itinayo sa (naturang lugar), Marikina, ng Batas.
Kalakhang Maynila.
Sa inyong kaalaman, panuntuan at pagtalima.
Bakod umusli sa Bangketa
Lubos na gumagalang,
Ang naturang pagtatayo ng bahay/istruktura ay
isang paglabag sa umiiral na batas/programa na (Sgd.)
ipatutupad ng Pamahalaang Bayan ng Marikina na JAIME S. PEREZ
nauukol sa: Tagapamahala
Marikina Demolition Office[5]
[] PD 1096
(National Building Code of the Philippines)

[ ] PD 772 As response, respondent Madrona sent petitioner a three-page

(Anti-Squatting Law)
[] Programa sa Kalinisan at Disiplina sa Bangketa
[ ] RA 7279
(Urban Development and Housing Act of 1992)
letter[6] dated June 8, 1999 stating that the May 25, 1999 letter
(1) contained an accusation libelous in nature as it is
condemning him and his property without due process; (2) has
no basis and authority since there is no court order authorizing

[ ] PD 296 him to demolish their structure; (3) cited legal bases which do
(Encroachment on rivers, esteros, drainage not expressly give petitioner authority to demolish; and (4)
channels and other
waterways) contained a false accusation since their fence did not in fact
extend to the sidewalk.
[] RA 917 as amended by Section 23, PD. No. 17,
DO No. 4
Series of 1987 On June 9, 1999, respondents received a letter [7] from petitioner
(Illegally occupied/constructed improvements
within the road requesting them to provide his office a copy of the relocation
right-of-way) survey on the subject property. Respondents, however, did not
Dahil po dito, kayo ay binibigyan ng taning na oblige because it was as if petitioner was fishing evidence from
Pitong (7) araw simula sa pagkatanggap ng sulat them.
na ito para kusang alisin ang inyong istruktura. Ang
hindi ninyo pagsunod sa ipinag-uutos na ito ay
magbubunsod sa amin upang gumawa ng

10
More than a year later or on February 28, 2001, petitioner sent
another letter[8] with the same contents as the May 25,
1999 letter but this time giving respondents ten days from
receipt thereof to remove the structure allegedly protruding to
the sidewalk. This prompted respondents to file a complaint [9] for
injunction before the Marikina City RTC on March 12, 2001.
In respondents injunction complaint, they alleged that (1)
petitioners letters made it appear that their fence was
encroaching on the sidewalk and directed them to remove it,
otherwise he would take the corresponding action; (2) petitioners
threat of action would be damaging and adverse to respondents
and appears real, earnest and imminent; (3) the removal of their
fence, which would include the main gate, would certainly
expose the premises and its occupants to intruders or third
persons; (4) petitioner has no legal authority to demolish
structures in private properties and the laws he cited in his
letters do not give him any authority to do so; (5) respondents
enjoy the legal presumption of rightful possession of every inch
of their property; (6) if petitioner accuses them of erroneous
possession, he should so prove only through the proper forum
which is the courts; (7) their fence is beside the sidewalk and the
land on which it stands has never been the subject of acquisition
either by negotiation or expropriation from the government; (8)
petitioners intended act of demolition even in the guise of a road
right of way has no factual or legal basis since there is no
existing infrastructure project of the national government or
Marikina City government; and (9) petitioners letter and his
intended act of demolition are malicious, unfounded, meant only
to harass respondents in gross violation of their rights and in
excess and outside the scope of his authority, thereby rendering
him accountable both in his personal and official capacity.
Respondents likewise sought the issuance of a temporary
restraining order (TRO) and a writ of preliminary injunction to
enjoin petitioner and all persons acting under him from doing
any act of demolition on their property and that after trial, the
injunction be made permanent. They also prayed for moral and
exemplary damages and attorneys fees.
On March 14, 2001, petitioner was served the corresponding
summons.[10]
On March 16, 2001, the RTC issued a TRO against petitioner.[11]
On March 29, 2001, petitioner filed an Urgent Ex Parte Motion
for Extension to File Answer [12] until April 13, 2001. It appears
however that petitioners counsel failed to file an Answer within
the extended period requested. Thus, on motion[13] of
respondents, petitioner was declared in default on July 13, 2001.
[14]
11
On July 25, 2001, petitioner filed a Motion to Lift Order of Default decision, but the motion was denied by
(with Ex-Parte Motion to Admit Answer and Notice Entry of Resolution[21] dated January 30, 2003.
Appearance).[15] According to petitioners new counsel, an
answer was not filed due to the former counsels voluminous On September 15, 2003, the RTC issued an

work load as lone lawyer in the City Legal Office.
On December 10, 2001, the RTC issued an Order [16] denying the
motion to lift the order of default. Aside from finding that the
motion failed to include a notice of hearing, the RTC also held
that the alleged cause of delay is not excusable as voluminous
work load of the counsel cannot justify the disregard of court
processes or failure to abide by the period fixed by the rules and
since the delay consisted not only a few days but over a
hundred and three days. Petitioner moved to reconsider the
order but the same was denied by the RTC in its March 6,
2002 Order.[17]
[18]
Petitioner thereafter filed a petition for certiorari before the CA
assailing the default order. Thus, on April 18, 2002, the RTC
issued an order suspending the proceedings of the injunction
case until such time when the Petition for Certiorari shall have
[19]
been disposed of with finality.
On August 20, 2002, the CA rendered
[20]
decision dismissing the petition for certiorari for lack of
merit. Petitioner moved to reconsider the appellate courts
Order[22] dismissing the injunction complaint without prejudice. It
held that respondents have not instituted any action before th[e]
Court showing that they are still interested in further prosecuting
th[e] case and [i]n accordance with Section 3, Rule 17 of the
Rules of Court, the Court is constrained to dismiss the complaint
for failure of [respondents] to prosecute their complaint for an
unreasonable length of time. However, upon motion of
respondents, the dismissal order was set aside and the
complaint was reinstated by Order [23] dated December 3,
2003. The RTC agreed with the observation of respondents that
it was the court which suspended the proceedings in the
injunction case pending final disposition of the petition for
certiorari before the CA, and when the RTC issued the dismissal
order, there was yet no entry of judgment from the CA and so it
cannot be said that the petition was already disposed of with
finality. Respondents were then allowed to present their
evidence ex parte before the branch clerk of court.
On July 27, 2004, the RTC rendered a Decision [24] in favor
a of respondents. The fallo of the RTC decision reads:
WHEREFORE, Judgment is hereby rendered in
favor of the plaintiffs. As prayed for, defendant
12
 Jaime S. Perez, Chief of the Demolition Office of
Hence this petition based on the following grounds:
Marikina City, or any person acting for and in his
behalf as well as the successors to his office, is I.
permanently enjoined from performing any act THE COURT OF APPEALS COMMITTED A
which would tend to destroy or demolish the REVERSIBLE ERROR IN AFFIRMING THE
perimeter fence and steel gate of the plaintiffs ACTION OF THE LOWER COURT IN
property situated at Lot 22, Block 5, France REINSTATING/REVIVING THE COMPLAINT
Street corner Italy Street, Phase II, Greenheights FILED BY THE RESPONDENTS.
Subdivision, Concepcion, Marikina City.
II.
Defendant is further ordered to pay the amount of
THE COURT OF APPEALS COMMITTED A
Twenty Thousand (P20,000.00) Pesos as
REVERSIBLE ERROR IN AFFIRMING THE
attorneys fees and Five Thousand (P5,000.00)
RULING OF THE LOWER COURT THAT THE
Pesos for the costs of suit.[25]
RESPONDENTS ARE ENTITLED TO
PERMANENT INJUNCTION, THEREBY
RESTRAINING THE PETITIONER OR ANYONE
The RTC held that respondents, being lawful owners of ACTING FOR AND ON HIS BEHALF FROM
the subject property, are entitled to the peaceful and open CARRYING OUT THE THREATENED
DEMOLITION OF THEIR PERIMETER FENCE
possession of every inch of their property and petitioners threat AND STEEL GATE.
to demolish the concrete fence around their property is
III.
tantamount to a violation of their rights as property owners who THE COURT OF APPEALS COMMITTED A
are entitled to protection under the Constitution and laws. The REVERSIBLE [ERROR] IN AFFIRMING THE
RULING OF THE LOWER COURT ORDERING
RTC also ruled that there is no showing that respondents fence THE PETITIONER TO PAY THE RESPONDENTS
is a nuisance per se and presents an immediate danger to the THE AMOUNTS OF TWENTY THOUSAND
PESOS (P20,000.00) AS ATTORNEYS FEES AND
communitys welfare, nor is there basis for petitioners claim that FIVE THOUSAND PESOS (P5,000.00) AS COSTS
OF SUIT.[26]
the fence has encroached on the sidewalk as to justify its
summary demolition.
Essentially, the issues to be resolved in the instant case are: (1)
Petitioner appealed the RTC decision to the Did the trial court err in reinstating the complaint of
CA. On March 31, 2008, the appellate court rendered the respondents? (2) Are the requisites for the issuance of a writ of
assailed decision affirming the RTC decision.

13
injunction present? and (3) Is petitioner liable to pay attorneys
fees and costs of suit?
Petitioner argues that there was express admission of
negligence by respondents and therefore, reinstatement of their
dismissed complaint was not justified.
We disagree.
A perusal of the respondents motion for
[27]
reconsideration of the order of dismissal reveals that there
was no admission of negligence by respondents, either express
or implied. Respondents only contended that (1) they were
under the impression that it would be the RTC which would
issue the order to continue the proceedings once it considers
that the petition before the CA had already been disposed of
with finality, and (2) their counsels records do not show that the
CA had already issued an entry of judgment at the time the
dismissal order was issued. They also only stated that they
followed up with the CA the issuance of the entry of judgment
but they were just told to wait for its delivery by mail. Petitioners
imputation that respondents expressly admitted negligence is
therefore clearly unfounded.
Additionally, as correctly found by both the RTC and the
CA, it did not appear that respondent lost interest in prosecuting
their case nor was their counsel negligent in handling
it. Accordingly, there was no basis for the dismissal order and
reinstatement of respondents complaint was justified.
As to the propriety of the issuance of the writ of injunction,
petitioner claims that the requisites therefor are not present in
the instant case. Petitioner contends that service of a mere
notice cannot be construed as an invasion of a right and only
presupposes the giving of an opportunity to be heard before any
action could be taken. He also claims that it is clear from the
records of the case that respondents concrete fence was
constructed on a part of the sidewalk in gross violation of
existing laws and ordinance and thus, they do not have absolute
right over the same. According to petitioner, the encroachment is
clearly apparent in the Sketch Plan of the government geodetic
engineer as compared to the Location Plan attached to
respondents complaint. He likewise contends that the clearing of
the sidewalks is an infrastructure project of the Marikina City
Government and cannot be restrained by the courts as provided
in Presidential Decree No. 1818. [28] Lastly, petitioner points out
that the trial court should not have merely relied on the
testimonies of respondents alleging that his men were already in
the subdivision and destroying properties on other streets to
prove that there was urgent necessity for the issuance of the
writ.
14

We disagree.
For injunction to issue, two requisites must concur: first,
there must be a right to be protected and second, the acts
against which the injunction is to be directed are violative of said
right.[29] Here, the two requisites are clearly present: there is a
right to be protected, that is, respondents right over their
concrete fence which cannot be removed without due process;
and the act, the summary demolition of the concrete fence,
against which the injunction is directed, would violate said right.
If petitioner indeed found respondents fence to have
encroached on the sidewalk, his remedy is not to demolish the
same summarily after respondents failed to heed his request to
remove it. Instead, he should go to court and prove respondents
supposed violations in the construction of the concrete
fence. Indeed, unless a thing is a nuisance per se, it may not be
abated summarily without judicial intervention. [30] Our ruling
in Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., on the
need for judicial intervention when the nuisance is not a
nuisance per se, is well worth mentioning. In said case, we
ruled:
Respondents can not seek cover under the
general welfare clause authorizing the abatement
of nuisances without judicial proceedings. That
tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and
property and may be summarily abated under the
undefined law of necessity (Monteverde v.
Generoso, 52 Phil. 123 [1982]). The storage of
copra in the quonset building is a legitimate
business. By its nature, it can not be said to be
injurious to rights of property, of health or of
comfort of the community. If it be a nuisance per
accidens it may be so proven in a hearing
conducted for that purpose. It is not per se a
nuisance warranting its summary abatement
without judicial intervention. [Underscoring
supplied.]
In Pampanga Bus Co., Inc. v. Municipality of
Tarlac where the appellant-municipality similarly
argued that the terminal involved therein is a
nuisance that may be abated by the Municipal
Council via an ordinance, this Court held: Suffice it
to say that in the abatement of nuisances the
provisions of the Civil Code (Articles 694-707)
must be observed and followed. This appellant
failed to do.[31]
Respondents fence is not a nuisance per se. By its nature, it is
not injurious to the health or comfort of the community. It was
built primarily to secure the property of respondents and prevent
intruders from entering it. And as correctly pointed out by
respondents, the sidewalk still exists. If petitioner believes that
respondents fence indeed encroaches on the sidewalk, it may
be so proven in a hearing conducted for that purpose. Not being
a nuisance per se, but at most a nuisance per accidens, its
summary abatement without judicial intervention is unwarranted.
15
Regarding the third issue, petitioner argues that he was just
performing his duties and as public officer, he is entitled to the
presumption of regularity in the performance of his official
functions. Unless there is clear proof that he acted beyond his
authority or in evident malice or bad faith, he contends that he
cannot be held liable for attorneys fees and costs of suit.
Respondents, for their part, counter that the presumption of
regularity has been negated by the fact that despite their reply to
the first notice, which put petitioner on notice that what he was
doing was ultra vires, he still reiterated his earlier demand and
threat of demolition. Having been warned by respondents that
his acts were in fact violations of law, petitioner should have
been more circumspect in his actions and should have pursued
the proper remedies that were more in consonance with the
dictates of due process.Respondents further pray for moral
damages for the serious anxieties and sleepless nights they
suffered and exemplary damages to serve as an example to
other public officials that they should be more circumspect in the
performance of their duties.
We agree with respondents.
As respondents were forced to file a case against petitioner to
enjoin the impending demolition of their property, the award of
attorneys fees and costs of suit is justified. Clearly, respondents
wanted to settle the problem on their alleged encroachment
without resorting to court processes when they replied by letter
after receiving petitioners first notice. Petitioner, however,
instead of considering the points raised in respondents reply-
letter, required them to submit the relocation plan as if he wants
respondents to prove that they are not encroaching on the
sidewalk even if it was he who made the accusation of violation
in the first place. And when he did not get the proof he was
requiring from respondents, he again sent a notice with a threat
of summary demolition. This gave respondents no other choice
but to file an injunction complaint against petitioner to protect
their rights.
With regard to respondents claim for moral damages, this
Court rules that they are entitled thereto in the amount
of P10,000.00 pursuant to Article 2217 [32] of the Civil Code. As
testified to by respondents, they suffered anxiety and sleepless
nights since they were worried what would happen to their
children who were left by themselves in their Marikina residence
while they were in Ormoc City if petitioner would make real his
threat of demolition on their fence.
We likewise hold that respondents are entitled to
exemplary damages in the amount of P5,000.00 to serve as an
example to other public officials that they should be more
circumspect in the performance of their duties.
16
WHEREFORE, the March 31, 2008 Decision and September 10,
2008 Resolution of the Court of Appeals in CA-G.R. CV. No.
83675 are AFFIRMED with MODIFICATION. Petitioner Jaime
S. Perez, Chief of the Demolition Office of Marikina City
is ORDERED to pay respondent Spouses Fortunito L. Madrona Republic of the Philippines
SUPREME COURT
and Yolanda B. Pante moral damages in the amount Manila
of P10,000.00 and exemplary damages in the amount
EN BANC
of P5,000.00.
G.R. No. L-45519 April 26, 1939
SO ORDERED.
RUFINA SALAO and LUCIO LUCAS, plaintiffs-appellants,
vs.
TEOFILO C. SANTOS, municipal president of Malabon,
Rizal, and ELIGIO GOZON, intervenor, defendants-appellees.

Arsenio Santos for appellants.

D. Fernandez Lavadia and Deogracias J. Puyat for appellees.

MORAN, J.:

The present action was instituted by plaintiffs Rufina Salao and

Lucio Lucas, now appellants, to restrain the defendant, Teofilo
C. Santos, as municipal president of Malabon, Rizal, from
enforcing compliance with his letter of October 22, 1935,
wherein said plaintiffs were directed to observe he requirements
of ordinance No. 23, series of 1929, of said municipality, on the
matter of the operation of their smoked fish factory (umbuyan).
The ordinance reads in part as follows:

ARTICULO 1. Se prohibe terminantemente la fabricacion

de toda materia, objeto de industria que requiere el uso
de combustible en edificios que no sean de materiales
fuertes con techo de hierro galvanizado o de teja.
17
 ART. 2. Todos los propietarios administradores,
industriales o encargados de todo edificio, camarin o
local destinado para la fabricacion de cualquier articulo
de materia prima que requiere el uso de combustibles
para su transformacion en materias alimenticias o de otra
industria, proveeran el edificio, camarin o local destinado
al efecto de una chimenea o tubo de escape que sera de
metal o de hierro galvanizado o de carbon y tendra una
altura adecuada, de modo que el humo, carbon o chispas
que despiden no perjudique a los edificios contiguos, ni
constituyen el mayor peligro de conflagracion.
ART. 3. Para los efectos de esta ordenanza, toda
fabricacion de ladrillos, alfareria o cal, trituracion,
molienda o quema de piedras, huesos o conchas, la
fabricacion de fosforos y otros negocios de caracter
antihigienicos, nocivo, ofensivo o peligroso, guardaran
una distancia de 40 metros de las casas o edificios
contiguos; y la fabricacion de materias alimenticias asi
como tambien la quema de los desperdicios de tabacos,
guardaran una distancia de 20 metros de las casas o
edificios a su alrededor. . . .
The evidence discloses that for many years prior to the
enactment of this ordinance, plaintiffs had already established a
smoked fish factory in the barrio of Baritan, Malabon, Rizal, and
had continually operated the same since then. On October 30,
1933, Lucio Lucas, one of the plaintiffs herein, was criminally
prosecuted in the justice of the peace court of Malabon for non-
compliance with the requirements of the ordinance
aforementioned, but was acquitted to the charge. Thereafter, the
intervenor herein, Eligio Gozon. whose house is situated near
the smoked fish factory of the appellants, denounced said
factory as a nuisance, by lodging a complaint in the central office
of the Bureau of Health seeking relief against its continuance. An
investigation was then conducted by the health authorities, and
as a result thereof it was found that appellants' smoked fish
factory was being operated not in accordance with the
requirements of said ordinance. Whereupon, the Bureau of
Health and the district health office took steps to enforce the
ordinance and to that effect the president of the sanitary division
of the municipality addressed a letter to one of the plaintiffs,
requesting compliance therewith. Compliance was refused on
the ground that said plaintiff was not within the purview of the
ordinance in accordance with the decision of the justice of the
peace court above stated. The health authorities then addressed
themselves to the municipal president who, for some reason or
another, failed or omitted to act on the matter. Accordingly, the
Department of the Interior, on the application of Eligio Gozon,
intervened, and after several exchanges of correspondence with
the provincial governor, the municipal president was required to
enforce the order of the health authorities. Consequently, the
municipal president addressed to one of the plaintiffs herein the
letter of October 22, 1935, aforementioned., requiring the latter
to comply with the ordinance of 1929 within 30 days on threat of
having his license revoked. On October 10, 1935, however, the
municipal council of Malabon had already enacted ordinance
No. 10, series of 1935, amending ordinance No. 23 of 1929, the
pertinent provisions of which follow:
ARTICLE I. Ordinance No. 23, series of 1929, is hereby
amended by adding a new article thereto which reads as
follows:
"Art. 3-(3). That this ordinance shall be effective only with
regard to those that will be established after the approval
hereof, and shall not be applicable to those already
operating at the time of the approval of this ordinance."
ARTICLE II. The effectivity of this ordinance shall retroact
to the date of the approval of ordinance No. 23, series of
1929.
18
Plaintiffs, in view of the president's order, instituted the present
action for injunction to restrain him from enforcing his order. The
trial court dismissed the action. Hence, this appeal.
It is not disputed that appellants' smoked fish factory was
established long before the enactment of the ordinance in
question. Municipal ordinances, like all statutes, are to be
construed as having only prospective operation unless the
intention to give them retrospective effect is expressly declared
or is necessarily implied from the language used. There is
nothing in the ordinance showing the intention to give it a
retrospective effect. On the contrary, it expressly refers to
"fabrica o negocio que se ha de levantar" and not to factories
already established. That such was the intention of the
ordinance of 1929 is confirmed by ordinance No. 10 of 1935,
which expressly provides that the amended ordinance "shall not
be applicable to those already operating at the time of the
approval" of the same. This amendatory ordinance is valid,
despite the allegation to the effect that the municipal president
intended its enactment for the protection of appellants and to
frustrate the order of the health authorities. Whatever might have
been the personal motives of the municipal president, no
improper motive can be attributed to the municipal council in its
enactment, and, therefore, the same stands as the expression of
the true intention of the body. Besides, this amendatory
ordinance was duly approved by the provincial board in its
resolution No. 1874.
Moreover, nuisances are of two kinds: nuisance per se and
nuisance per accidens. The first is recognized as a nuisance
under any and all circumstances, because it constitutes a direct
menace to public health or safety, and, for that reason, may be
abated summarily under the undefined law of necessity. The
second is that which depends upon certain conditions and
circumstances, and its existence being a question of fact, it
cannot be abated without due hearing thereon in a tribunal
authorized to decide whether such a thing does in law constitute
a nuisance. (Iloilo Ice and Cold Storage Co. vs. Municipal
Council of Iloilo, 24 Phil., 471; Monteverde vs.Generoso, 52
Phil., 123, 127.) Appellants' smoked fish factory is not a
nuisance per se. It is a legitimate industry. If it be, in fact, a
nuisance due to the manner of its operation, then it would be
merely a nuisance per accidens. (Iloilo Ice and Cold Storage
Co. vs. Municipal Council of Iloilo, supra;
Monteverde vs. Generoso, supra.) Consequently, the order of
the municipal president and those of the health authorities
issued with a view to the summary abatement of what they have
concluded, by their own findings, as a nuisance, are null and
void there having been no hearing in court to the effect.
Judgment is reversed, with costs against appellees.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-41941 January 9, 1936
JUAN BENGZON, plaintiff-appellant,
vs.
THE PROVINCE OF PANGASINAN, defendant-appellee..
In this case the motion for reconsideration of the decision
promulgated on October 26, 1935, was granted and the case set
for re-argument on December 17, 1935. The court having had
the benefit of the oral argument of counsel on the issue of their
present value of the premises of the plaintiff-appellant involved
in this suit, its decision of October 26, 1935, is amended to read
as follows:
19
This is an appeal from a judgment of the Court of First
Instance of Pangasinan in action for damages for
maintaining a nuisance continuously injurious to the
plaintiff and his family by reason of the maintenance and
operation of a stand pipe, pumping station and open
reservoir for the storage of water upon the premises
immediately adjacent to the plaintiff's residence.
It appears from the stipulation of facts that the plaintiff
owns a house constructed of wood and covered with nipa
on Avenida Rizal, municipality of Lingayen, Province of
Pangasinan; that he had and his family have resided
there for twenty-seven years, his family being composed
of eight members. Their house is two stories constructed
upon a lot which contains 720 square meter. Upon the
adjacent lot the defendant, during the years 1924 and
1925, constructed a reinforced concrete stand pipe 28
meters high and nine meters in diameter. Within the base
of this cylindrical tank there are three machines: One
electrical, one gasoline and one crude oil. On the side of
the tank nearest the plaintiff's residence and at a distance
of 3.4 meters is a chimney which rises to about the height
of the gable of the house. The tank itself is 3.8 meters
from the house of the plaintiff.
In March, 1927, the plaintiff protested to the governor of
the province for the manner in which the plant was being
operated and asked that he be indemnified for the value
of his house and lot so that he might move his family and
his effects to another residence. In this protest he stated:
"Expide humo y olor desagradable que penetran en el
interior de mi casa, aun cerradas sus ventanas, molestos
y perjudiciales a nuestra salud. La chimenea de la
maquina, que esta en en el lado del tanque, contiguo al
alero de mi casa, aunque esta envuela en la cabeza
como una red de acero chispea en ocasiones en que
detro de la red se ha acumulado por el humo bastante
suciedad inflamable, y si algumas tiguo de mi casa,
techada de nipa, ella naturalmente nada de su contenido.
"El tangue nos asusta y ponne en en peligro de ser
aplastadoos por el, siempre que ocurre un tembor como
ya ha ocurrido varias veces desde su levantamiento, por
sus porciones y condiciones mencionadas, y la
circunstancia de estar plantado sobre terreno blado, bajo
y anegadizo. No es improbable, ni menos increible, que
este tanque volcara o se tumbra, si ocurriera en Lingayen
un temblor tan fuerte como el ocurrido el ao 63 u 80 en
Manila, o el occurrido en Japon en 1923, o en la fecha 7
de estee mes, que derrumbo muchas casas, matando a
millares de personas. Ninguna personans, por sabia que
sea, puede dar certidumre y seguridad de que no se
tumbaria, por cualquier terremoto fuerte que occuriera
aqui en Lingayen, maxime, estado cargada de CIEN MIL
galones de agua en su parte superior. Y si en ocasion en
que yo mi familia estuvieramos dormidos, ocurrienran el
temblor y el volacamiento del TANQUE hacia mi casa ay
de nosotros!"
After making an ocular inspection of the plant and hearing
the testimony of the witnesses, the trial court came to the
conclusion that although the operation of the pumps and
the tank creates some annoyance and discomfort to the
plaintiff, these are but ordinary and incidental to the
reasonable conduct of the defendant's water system. The
court further held that inasmuch as the plaintiff did not
protest till after the plan was constructed, his action is
barred for laches.
For this later conclusion of law the trial court cites no
authority and we are not aware of any. It is to be noted
20
that this is not a suit for equitable relief but an action for
damages. The doctrine that one who consents to permits
or acquiesces in the erection of structure with knowledge
of the purpose for which it is to be put and the
consequences of its uses are productive of a nuisance, is
not applicable here, for the plaintiff neither consented to,
permitted or acquiesced in the erection of the structure;
nor could it fairly be said that he had knowledge in
advance of all the consequences of the erection and the
manner of operation of the plant here in question. The
amended complaint in this case was filed on January 4,
1930, from which we infer that the suit was instituted
some time before that date. But there is nothing in the
record which warrants the inference of an estoppel by
acquiescence.
The learned trial judge, in his decision of January 27,
1934, made a careful and exhaustive analysis both of the
law and the evidence in this case. But after a careful
examination of the entire record, we cannot accept his
conclusion that the evidence a case of actionable
nuisance.
In locating its pumping station within 3.8 meters from the
house of the plaintiff, the defendant should reasonably
have foreseen that the noise, vibrations, smoke, odor and
sparks coming from the plant during its operation, not
only during the day but during the night as well, would
cause a constant annoyance, discomfort and danger both
to the property of the plaintiff and the health and comport
of himself and his family. The chimney which is just
opposite the plaintiff's house at a distance of only 3.4
meters emits smoke, gases of crude oil and gasoline and
occasionally sparks well. The plaintiff testified that at
times the smoke blinds him and his family affecting their
lungs and their eyes and that the noise and vibrations
affect their sleep. As against the testimony of the plaintiff,
who is exposed day in and day out to these conditions,
and of his neighbors who corroborate him, the brief ocular
inspection made by the court on one day, although
conducted with eminent fairness, seems to us to be
entitled to less weight. The witnesses for the defendant,
its employees, naturally minimize the harmful effects to
the plaintiff of the operation of the machines in the
pumping plant. But the evidence as a whole leaves us
with clear conviction that the construction and operation
of this pumping plant in such close proximity to the
plaintiff's residence has rendered the same practically
uninhabitable without exposing to risk the comfort, health
and, in case of fire, even the live of the plaintiff and his
family.
We find from the preponderance of the evidence that the
fair present value of the appellant's premises involved in
this suit is P3,000; and as, under the circumstances, the
maintenance of the nuisance is practically tantamount to
an expropriation, we have concluded that the defendant-
appellee should be and it is hereby required and
adjudged to pay by him to it of a valid conveyance of the
premises, free of liens and incumbrances, reserving to
the plaintiff-appellant the right to remove his
improvements therefrom within three months from the
date of payment of the said P3,000.
The judgment appealed from is reserved and the cause is
remanded for further proceedings in accordance with this
decision. No special pronouncement as to costs in this
instance.
Republic of the Philippines
SUPREME COURT
Manila
21
 EN BANC
G.R. No. L-18390 August 6, 1971
PEDRO J. VELASCO, plaintiff-appellant,
vs.
MANILA ELECTRIC CO., WILLIAM SNYDER, its President;
JOHN COTTON and HERMENEGILDO B. REYES, its Vice-
Presidents; and ANASTACIO A. AGAN, City Engineer of
Quezon City, defendants-appellees.
Q. Paredes, B. Evangelista and R. T. Durian for plaintiff-
appellant.
Ross, Selph and Carrascoso for defendants-appellees Manila
Electric Co., etc., et al.
Asst. City Fiscal Jaime R. Agloro for defendant-appellee
Anastacio A. Agan, etc.
REYES, J.B.L., J.:
The present case is direct appeal (prior to Republic Act 5440) by
the herein plaintiff-appellant, Pedro J. Velasco (petitioner in L-
14035; respondent in L-13992) * from the decision of the Court
of First Instance of Rizal, Quezon City Branch, in its Civil Case
No. 1355, absolving the defendants from a complaint for the
abatement of the sub-station as a nuisance and for damages to
his health and business in the amount of P487,600.00.
In 1948, appellant Velasco bought from the People's Homesite
and Housing Corporation three (3) adjoining lots situated at the
corner of South D and South 6 Streets, Diliman, Quezon City.
These lots are within an area zoned out as a "first residence"
district by the City Council of Quezon City. Subsequently, the
appellant sold two (2) lots to the Meralco, but retained the third
lot, which was farthest from the street-corner, whereon he built
his house.
In September, 1953, the appellee company started the
construction of the sub-station in question and finished it the
following November, without prior building permit or authority
from the Public Service Commission (Meralco vs. Public Service
Commission, 109 Phil. 603). The facility reduces high voltage
electricity to a current suitable for distribution to the company's
consumers, numbering not less than 8,500 residential homes,
over 300 commercial establishments and about 30 industries
(T.s.n., 19 October 1959, page 1765). The substation has a
rated capacity of "2 transformers at 5000 Kva each or a total of
10,000 Kva without fan cooling; or 6250 Kva each or a total of
12,500 Kva with fan cooling" (Exhibit "A-3"). It was constructed
at a distance of 10 to 20 meters from the appellant's house
(T.s.n., 16 July 1956, page 62; 19 December 1956, page 343; 1
June 1959, page 29). The company built a stone and cement
wall at the sides along the streets but along the side adjoining
the appellant's property it put up a sawale wall but later changed
it to an interlink wire fence.
It is undisputed that a sound unceasingly emanates from the
substation. Whether this sound constitutes an actionable
nuisance or not is the principal issue in this case.
Plaintiff-appellant Velasco contends that the sound constitutes
an actionable nuisance under Article 694 of the Civil Code of the
Philippines, reading as follows:
A nuisance is any act, omission, establishment,
business condition of property or anything else
which:
22
 (1) Injuries or endangers the health or safety of
others; or
(2) Annoys or offends the senses;
xxx xxx xxx
because subjection to the sound since 1954 had disturbed the
concentration and sleep of said appellant, and impaired his
health and lowered the value of his property. Wherefore, he
sought a judicial decree for the abatement of the nuisance and
asked that he be declared entitled to recover compensatory,
moral and other damages under Article 2202 of the Civil Code.
ART. 2202. In crimes and quasi-delicts, the
defendant shall be liable for all damages which are
the natural and probable consequences of the act
or omission complained of. It is not necessary that
such damages have been foreseen or could have
reasonably been foreseen by the defendant.
After trial, as already observed, the court below dismissed the
claim of the plaintiff, finding that the sound of substation was
unavoidable and did not constitute nuisance; that it could not
have caused the diseases of anxiety neurosis, pyelonephritis,
ureteritis, lumbago and anemia; and that the items of damage
claimed by plaintiff were not adequate proved. Plaintiff then
appealed to this Court.
The general rule is that everyone is bound to bear the habitual
or customary inconveniences that result from the proximity of
others, and so long as this level is not surpassed, he may not
complain against them. But if the prejudice exceeds the
inconveniences that such proximity habitually brings, the
neighbor who causes such disturbance is held responsible for
the resulting damage, 1 being guilty of causing nuisance.
While no previous adjudications on the specific issue have been
made in the Philippines, our law of nuisances is of American
origin, and a review of authorities clearly indicates the rule to be
that the causing or maintenance of disturbing noise or sound
may constitute an actionable nuisance (V. Ed. Note, 23 ALR, 2d
1289). The basic principles are laid down in Tortorella vs. Traiser
& Co., Inc., 90 ALR 1206:
A noise may constitute an actionable
nuisance, Rogers vs. Elliott, 146 Mass, 349, 15
N.E. 768, 4 Am. St. Rep. 316, Stevens v. Rockport
Granite Co., 216 Mass. 486, 104 N.E. 371, Ann.
Cas. 1915B, 1954, Stodder v. Rosen Talking
Machine Co., 241 Mass. 245, 135 N. E. 251, 22 A.
L. R. 1197, but it must be a noise which affects
injuriously the health or comfort of ordinary people
in the vicinity to an unreasonable extent. Injury to a
particular person in a peculiar position or of
specially sensitive characteristics will not render
the noise an actionable nuisance. Rogers v. Elliott,
146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316.
In the conditions of present living noise seems
inseparable from the conduct of many necessary
occupations. Its presence is a nuisance in the
popular sense in which that word is used, but in
the absence of statute noise becomes actionable
only when it passes the limits of reasonable
adjustment to the conditions of the locality and of
the needs of the maker to the needs of the listener.
What those limits are cannot be fixed by any
definite measure of quantity or quality. They
depend upon the circumstances of the particular
case. They may be affected, but are not controlled,
by zoning ordinances. Beane v. H. J. Porter, Inc.,
280 Mass. 538, 182 N. E. 823, Marshal v.
Holbrook, 276 Mass. 341, 177 N. E. 504, Strachan
23
 v. Beacon Oil Co., 251 Mass. 479, 146 N. E. 787.
The delimitation of designated areas to use for
manufacturing, industry or general business is not
a license to emit every noise profitably attending
the conduct of any one of them. Bean v. H. J.
Porter, Inc.. 280 Mass. 538, 182 N. E. 823. The
test is whether rights of property of health or of
comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss
which goes beyond the reasonable limit imposed
upon him by the condition of living, or of holding
property, in a particular locality in fact devoted to
uses which involve the emission of noise although
ordinary care is taken to confine it within
reasonable bounds; or in the vicinity of property of
another owner who though creating a noise is
acting with reasonable regard for the rights of
those affected by it. Stevens v. Rockport Granite
Co., 216 Mass. 486, 104 NE 371, Ann. Cas.
1915B, 1054.
With particular reference to noise emanating from electrical
machinery and appliances, the court, in Kentucky & West
Virginia Power Co. v. Anderson, 156 S. W. 2d 857, after a review
of authorities, ruled as follows:
There can be no doubt but that commercial and
industrial activities which are lawful in themselves
may become nuisances if they are so offensive to
the senses that they render the enjoyment of life
and property uncomfortable. It is no defense that
skill and care have been exercised and the most
improved methods and appliances employed to
prevent such result. Wheat Culvert Company v.
Jenkins, 246 Ky. 319, 55 S. W. 2d 4; 46 C.J. 683,
705; 20 R. C. L. 438; Annotations, 23 A. L. R.
1407; 90 A. L. R. 1207. Of course, the creation of
trifling annoyance and inconvenience does not
constitute an actionable nuisance, and the locality
and surroundings are of importance. The fact that
the cause of the complaint must be substantial has
often led to expressions in the opinions that to be a
nuisance the noise must be deafening or loud or
excessive and unreasonable. Usually it was shown
to be of that character. The determinating factor
when noise alone is the cause of complaint is not
its intensity or volume. It is that the noise is of such
character as to produce actual physical discomfort
and annoyance to a person of ordinary
sensibilities, rendering adjacent property less
comfortable and valuable. If the noise does that it
can well be said to be substantial and
unreasonable in degree; and reasonableness is a
question of fact dependent upon all the
circumstances and conditions. 20 R. C. L. 445,
453; Wheat Culvert Company v. Jenkins, supra.
There can be no fixed standard as to what kind of
noise constitutes a nuisance. It is true some
witnesses in this case say they have been
annoyed by the humming of these transformers,
but that fact is not conclusive as to the
nonexistence of the cause of complaint, the test
being the effect which is had upon an ordinary
person who is neither sensitive nor immune to the
annoyance concerning which the complaint is
made. In the absence of evidence that the
complainant and his family are supersensitive to
distracting noises, it is to be assumed that they are
persons of ordinary and normal
sensibilities. Roukovina v. Island Farm Creamery
Company, 160 Minn. 335, 200 N. W. 350, 38 A. L.
R. 1502.
24
 xxx xxx xxx
In Wheat Culvert Company vs. Jenkins, supra, we
held an injunction was properly decreed to stop the
noise from the operation of a metal culvert factory
at night which interfered with the sleep of the
occupants of an adjacent residence. It is true the
clanging, riveting and hammering of metal plates
produces a sound different in character from the
steady hum or buzz of the electric machinery
described in this case. In the Jenkins case the
noise was loud, discordant and intermittent. Here it
is interminable and monotonous. Therein lies the
physical annoyance and disturbance. Though the
noise be harmonious and slight and trivial in itself,
the constant and monotonous sound of a cricket
on the earth, or the drip of a leaking faucet is
irritating, uncomfortable, distracting and disturbing
to the average man and woman. So it is that the
intolerable, steady monotony of this ceaseless
sound, loud enough to interfere with ordinary
conversation in the dwelling, produces a result
generally deemed sufficient to constitute the cause
of it an actionable nuisance. Thus, it has been held
the continuous and monotonous playing of a
phonograph for advertising purposes on the street
even though there were various records, singing,
speaking and instrumental, injuriously affected
plaintiff's employees by a gradual wear on their
nervous systems, and otherwise, is a nuisance
authorizing an injunction and damages. Frank F.
Stodder, et al. v. Rosen Talking Machine Company,
241 Mass. 245, 135 N. E. 251, 22 A. L. R. 1197.
The principles thus laid down make it readily apparent that
inquiry must be directed at the character and intensity of the
noise generated by the particular substation of the appellee. As
can be anticipated, character and loudness of sound being of
subjective appreciation in ordinary witnesses, not much help can
be obtained from the testimonial evidence. That of plaintiff
Velasco is too plainly biased and emotional to be of much value.
His exaggerations are readily apparent in paragraph V of his
amended complaint, signed by him as well as his counsel,
wherein the noise complained of as
fearful hazardous noise and clangor are produced
by the said electric transformer of the MEC's
substation, approximating a noise of a reactivated
about-to-explode volcano, perhaps like the nerve
wracking noise of the torture chamber in
Germany's Dachau or Buchenwald (Record on
Appeal, page 6).
The estimate of the other witnesses on the point of inquiry are
vague and imprecise, and fail to give a definite idea of the
intensity of the sound complained of. Thus:
OSCAR SANTOS, Chief Building Inspector, Department of
Engineering, Quezon City ____ "the sound (at the front door of
plaintiff Velasco's house) becomes noticeable only when I tried
to concentrate ........" (T.s.n., 16 July 1956, page 50)
SERAFIN VILLARAZA, Building Inspector ____ "..... like a high
pitch note." (the trial court's description as to the imitation of
noise made by witness:"........ more of a hissing sound) (T.s.n.,
16 July 1956, pages 59-60)
CONSTANCIO SORIA, City Electrician ____ "........ humming
sound" ..... "of a running car". (T.s.n., 16 July 1956, page 87)
JOSE R. ALVAREZ, Sanitary Engineer, Quezon City Health
Department ____ "..... substation emits a continuous rumbling
sound which is audible within the premises and at about a radius
25
of 70 meters." "I stayed there from 6:00 p.m. to about 1:00
o'clock in the morning" ..... "increases with the approach of
twilight." (T.s.n., 5 September 1956, pages 40-44)
NORBERTO S. AMORANTO, Quezon City Mayor ____ (for 30
minutes in the street at a distance of 12 to 15 meters from sub-
station) "I felt no effect on myself." "..... no [piercing noise]"
(T.s.n., 18 September 1956, page 189)
PACIFICO AUSTRIA, architect, appellant's neighbor: "..... like an
approaching airplane ..... around five kilometers away." (T.s.n.,
19 November 1956, pages 276-277)
ANGEL DEL ROSARIO, radiologist, appellant's neighbor: ".....
as if it is a running motor or a running dynamo, which disturbs
the ear and the hearing of a person." T.s.n., 4 December 1956,
page 21)
ANTONIO D. PAGUIA, lawyer ____ "It may be likened to the
sound emitted by the whistle of a boat at a far distance but it is
very audible." (T.s.n., 19 December 1956, page 309)
RENE RODRIGUEZ, sugar planter and sugar broker, appellant's
neighbor ____ "It sounds like a big motor running continuously."
(T.s.n., 19 December 1956, page 347)
SIMPLICIO BELISARIO, Army captain, ____ (on a visit to
Velasco) "I can compare the noise to an airplane C-47 being
started - the motor." [Did not notice the noise from the substation
when passing by, in a car, Velasco's house] (T.s.n., 7 January
1957, pages 11-12)
MANOLO CONSTANTINO, businessman, appellant's neighbor
____ "It disturbs our concentration of mind." (T.s.n., 10 January
1957, page 11)
PEDRO PICA, businessman, appellant's neighbor: "..... We can
hear it very well [at a distance of 100 to 150 meters]. (T.s.n., 10
January 1957, page 41)
CIRENEO PUNZALAN, lawyer ____ "..... a continuous
droning, ..... like the sound of an airplane." (T.s.n., 17 January
1957, page 385)
JAIME C. ZAGUIRRE, Chief, Neuro-Psychiatry Section, V. Luna
Gen. Hospital ____ "..... comparatively the sound was really loud
to bother a man sleeping." (T.s.n., 17 January 1957, page 406)
We are thus constrained to rely on quantitative measurements
shown by the record. Under instructions from the Director of
Health, samplings of the sound intensity were taken by Dr. Jesus
Almonte using a sound level meter and other instruments. Within
the compound of the plaintiff-appellant, near the wire fence
serving as property line between him and the appellee, on 27
August 1957 at 11:45 a.m., the sound level under the sampaloc
tree was 46-48 decibels, while behind Velasco's kitchen, the
meter registered 49-50; at the same places on 29 August 1957,
at 6:00 a.m., the readings were 56-59 and 61-62 decibels,
respectively; on 7 September 1957, at 9:30 a.m., the sound level
under the sampaloc tree was 74-76 decibels; and on 8
September 1957 at 3:35 in the morning, the reading under the
same tree was 70 decibels, while near the kitchen it was 79-80
decibels. Several measurements were also taken inside and
outside the house (Exhibit "NN-7, b-f"). The ambient sound of
the locality, or that sound level characteristic of it or that sound
predominating minus the sound of the sub-station is from 28 to
32 decibels. (T.s.n., 26 March 1958, pages 6-7)
Mamerto Buenafe, superintendent of the appellee's electrical
laboratory, also took sound level samplings. On 19 December
1958, between 7:00 to 7:30 o'clock in the evening, at the
substation compound near the wire fence or property line, the
readings were 55 and 54 and still near the fence close to the
26
sampaloc tree, it was 52 decibels; outside but close to the
concrete wall, the readings were 42 to 43 decibels; and near the
transformers, it was 76 decibels (Exhibit "13").
Buenafe also took samplings at the North General Hospital on 4
January 1959 between 9:05 to 9:45 in the evening. In the
different rooms and wards from the first to the fourth floors, the
readings varied from 45 to 67 decibels.
Technical charts submitted in evidence show the following
intensity levels in decibels of some familiar sounds: average
residence: 40; average office: 55; average automobile, 15 feet:
70; noisiest spot at Niagara Falls: 92 (Exhibit "11- B"); average
dwelling: 35; quiet office: 40; average office: 50; conversation:
60; pneumatic rock drill: 130 (Exhibit "12"); quiet home
average living room: 40; home ventilation fan, outside sound of
good home airconditioner or automobile at 50 feet: 70 (Exhibit
"15-A").
Thus the impartial and objective evidence points to the sound
emitted by the appellee's substation transformers being of much
higher level than the ambient sound of the locality. The
measurements taken by Dr. Almonte, who is not connected with
either party, and is a physician to boot (unlike appellee's
electrical superintendent Buenafe), appear more reliable. The
conclusion must be that, contrary to the finding of the trial court,
the noise continuously emitted, day and night, constitutes an
actionable nuisance for which the appellant is entitled to relief,
by requiring the appellee company to adopt the necessary
measures to deaden or reduce the sound at the plaintiff's house,
by replacing the interlink wire fence with a partition made of
sound absorbent material, since the relocation of the substation
is manifestly impracticable and would be prejudicial to the
customers of the Electric Company who are being serviced from
the substation.
Appellee company insists that as the plaintiff's own evidence
(Exhibit "NN-7[c]") the intensity of the sound (as measured by
Dr. Almonte) inside appellant's house is only 46 to 47 decibels at
the consultation room, and 43 to 45 decibels within the treatment
room, the appellant had no ground to complain. This argument is
not meritorious, because the noise at the bedrooms was
determined to be around 64-65 decibels, and the medical
evidence is to the effect that the basic root of the appellant's
ailments was his inability to sleep due to the incessant noise
with consequent irritation, thus weakening his constitution and
making him easy prey to pathogenic germs that could not
otherwise affect a person of normal health.
In Kentucky and West Virginia Co., Inc. vs. Anderson, 156 SW.
857, the average of three readings along the plaintiff's fence was
only 44 decibels but, because the sound from the sub-station
was interminable and monotonous, the court authorized an
injunction and damages. In the present case, the three readings
along the property line are 52, 54 and 55 decibels. Plaintiff's
case is manifestly stronger.
Appellee company argues that the plaintiff should not be heard
to complain because the sound level at the North General
Hospital, where silence is observed, is even higher than at his
residence. This comparison lacks basis because it has not been
established that the hospital is located in surroundings similar to
the residential zone where the plaintiff lived or that the sound at
the hospital is similarly monotonous and ceaseless as the sound
emitted by the sub-station.
Constancio Soria testified that "The way the transformers are
built, the humming sound cannot be avoided". On this testimony,
the company emphasizes that the substation was constructed
for public convenience. Admitting that the sound cannot be
eliminated, there is no proof that it cannot be reduced. That the
sub-station is needed for the Meralco to be able to serve well its
27
customers is no reason, however, why it should be operated to
the detriment and discomfort of others. 2
The fact that the Meralco had received no complaint although it
had been operating hereabouts for the past 50 years with
substations similar to the one in controversy is not a valid
argument. The absence of suit neither lessens the company's
liability under the law nor weakens the right of others against it
to demand their just due.
As to the damages caused by the noise, appellant Velasco,
himself a physician, claimed that the noise, as a precipitating
factor, has caused him anxiety neurosis, which, in turn,
predisposed him to, or is concomitant with, the other ailments
which he was suffering at the time of the trial, namely,
pyelonephritis, ureteritis and others; that these resulted in the
loss of his professional income and reduced his life expectancy.
The breakdown of his claims is as follows:
Loss of professional earnings
P12,600
Damage to life expectancy 180,000
Moral damages 100,000
Loss due to frustration of sale of
house 125,000
Exemplary damages 25,000
Attorneys' fees 45,000
A host of expert witnesses and voluminous medical literature,
laboratory findings and statistics of income were introduced in
support of the above claims.
The medical evidence of plaintiff's doctors preponderates over
the expert evidence for defendant-appellee, not merely because
of its positive character but also because the physicians
presented by plaintiff had actually treated him, while the defense
experts had not done so. Thus the evidence of the latter was to
a large extent conjectural. That appellant's physical ailments
should be due to infectious organisms does not alter the fact that
the loss of sleep, irritation and tension due to excessive noise
weakened his constitution and made him easy prey to the
infection.
Regarding the amount of damages claimed by appellant, it is
plain that the same are exaggerated. To begin with, the alleged
loss of earnings at the rate of P19,000 per annum is predicated
on the Internal Revenue assessment, Exhibit "QQ-1", wherein
appellant was found to have undeclared income of P8,338.20 in
additional to his declared gross income of P10,975.00 for 1954.
There is no competent showing, however, that the source of
such undeclared income was appellant's profession. In fact, the
inference would be to the contrary, for his gross income from the
previous years 1951 to 1953 [Exhibits "QQ-1 (d)" to "QQ-1 (f)"]
was only P8,085.00, P5,860.00 and P7,120.00, respectively, an
average of P7,000.00 per annum. Moreover, while his 1947 and
1948 income was larger (P9,995.00 and P11,900.00), it appears
that P5,000 thereof was the appellant's annual salary from the
Quezon Memorial Foundation, which was not really connected
with the usual earnings derived from practice as a physician.
Considering, therefore, his actual earnings, the claimed moral
damages of P100,000.00 are utterly disproportionate. The
alleged losses for shortening of appellant's, life expectancy are
not only inflated but speculative.
As to the demand for exemplary or punitive damages, there
appears no adequate basis for their award. While the appellee
Manila Electric Company was convicted for erecting the
substation in question without permit from the Public Service
Commission, We find reasonable its explanation that its officials
and counsel had originally deemed that such permit was not
required as the installation was authorized by the terms of its
franchise (as amended by Republic Act No. 150) requiring it to
spend within 5 years not less than forty million pesos for
28
maintenance and additions to its electric system, including
needed power plants and substations. Neither the absence of
such permit from the Public Service Commission nor the lack of
permit from the Quezon City authorities (a permit that was
subsequently granted) is incompatible with the Company's good
faith, until the courts finally ruled that its interpretation of the
franchise was incorrect.
There are, moreover, several factors that mitigate defendant's
liability in damages. The first is that the noise from the
substation does not appear to be an exclusive causative factor
of plaintiff-appellant's illnesses. This is proved by the
circumstance that no other person in Velasco's own household
nor in his immediate neighborhood was shown to have become
sick despite the noise complained of. There is also evidence that
at the time the plaintiff-appellant appears to have been largely
indebted to various credit institutions, as a result of his
unsuccessful gubernatorial campaign, and this court can take
judicial cognizance of the fact that financial worries can affect
unfavorably the debtor's disposition and mentality.
The other factor militating against full recovery by the petitioner
Velasco in his passivity in the face of the damage caused to him
by the noise of the substation. Realizing as a physician that the
latter was disturbing or depriving him of sleep and affecting both
his physical and mental well being, he did not take any steps to
bring action to abate the nuisance or remove himself from the
affected area as soon as the deleterious effects became
noticeable. To evade them appellant did not even have to sell his
house; he could have leased it and rented other premises for
sleeping and maintaining his office and thus preserve his health
as ordinary prudence demanded. Instead he obstinately stayed
until his health became gravely affected, apparently hoping that
he would thereby saddle appellee with large damages.
The law in this jurisdiction is clear. Article 2203 prescribes that
"The party suffering loss or injury must exercise the diligence of
a good father of a family to minimize the damages resulting from
the act or omission in question". This codal rule, which embodies
the previous jurisprudence on the point, 3 clearly obligates the
injured party to undertake measures that will alleviate and not
aggravate his condition after the infliction of the injury, and
places upon him the burden of explaining why he could not do
so. This was not done.
Appellant Velasco introduced evidence to the effect that he tried
to sell his house to Jose Valencia, Jr., in September, 1953, and
on a 60 day option, for P95,000.00, but that the prospective
buyer backed out on account of his wife objecting to the noise of
the substation. There is no reliable evidence, however, how
much were appellant's lot and house worth, either before the
option was given to Valencia or after he refused to proceed with
the sale or even during the intervening period. The existence of
a previous offer for P125,000.00, as claimed by the plaintiff, was
not corroborated by Valencia. What Valencia testified to in his
deposition is that when they were negotiating on the price
Velasco mentioned to him about an offer by someone for
P125,000.00. The testimony of Valencia proves that in the
dialogue between him and Velasco, part of the subject of their
conversation was about the prior offer, but it does not
corroborate or prove the reality of the offer for P125,000.00. The
testimony of Velasco on this point, standing alone, is not credible
enough, what with his penchant for metaphor and exaggeration,
as previously adverted to. It is urged in appellant's brief, along
the lines of his own testimony, that since one (1) transformer
was measured by witness, Jimenez with a noise intensity of 47.2
decibels at a distance of 30.48 meters, the two (2) transformers
of the substation should create an intensity of 94.4 decibels at
the same distance. If this were true, then the residence of the
plaintiff is more noisy than the noisiest spot at the Niagara Falls,
which registers only 92 decibels (Exhibit "15-A").
29
Since there is no evidence upon which to compute any loss or
damage allegedly incurred by the plaintiff by the frustration of
the sale on account of the noise, his claim therefore was
correctly disallowed by the trial court. It may be added that there
is no showing of any further attempts on the part of appellant to
dispose of the house, and this fact suffices to raise doubts as to
whether he truly intended to dispose of it. He had no actual need
to do so in order to escape deterioration of his health, as
heretofore noted.
Despite the wide gap between what was claimed and what was
proved, the plaintiff is entitled to damages for the annoyance
and adverse effects suffered by him since the substation started
functioning in January, 1954. Considering all the circumstances
disclosed by the record, as well as appellant's failure to minimize
the deleterious influences from the substation, this Court is of
the opinion that an award in the amount of P20,000.00, by way
of moderate and moral damages up to the present, is
reasonable. Recovery of attorney's fees and litigation expenses
in the sum of P5,000.00 is also
justified the factual and legal issues were intricate (the
transcript of the stenographic notes is about 5,000 pages, side
from an impressive number of exhibits), and raised for the first
time in this jurisdiction. 4
The last issue is whether the City Engineer of Quezon City,
Anastacio A. Agan, a co-defendant, may be held solidarily liable
with Meralco.
Agan was included as a party defendant because he allegedly
(1) did not require the Meralco to secure a building permit for the
construction of the substation; (2) even defended its construction
by not insisting on such building permit; and (3) did not initiate its
removal or demolition and the criminal prosecution of the
officials of the Meralco.
The record does not support these allegations. On the first plea,
it was not Agan's duty to require the Meralco to secure a permit
before the construction but for Meralco to apply for it, as per
Section 1. Ordinance No. 1530, of Quezon City. The second
allegation is not true, because Agan wrote the Meralco requiring
it to submit the plan and to pay permit fees (T.s.n., 14 January
1960, pages 2081-2082). On the third allegation, no law or
ordinance has been cited specifying that it is the city engineer's
duty to initiate the removal or demolition of, or for the criminal
prosecution of, those persons who are responsible for the
nuisance. Republic Act 537, Section 24 (d), relied upon by the
plaintiff, requires an order by, or previous approval of, the mayor
for the city engineer to cause or order the removal of buildings or
structures in violation of law or ordinances, but the mayor could
not be expected to take action because he was of the belief, as
he testified, that the sound "did not have any effect on his body."
FOR THE FOREGOING REASONS, the appealed decision is
hereby reversed in part and affirmed in part. The defendant-
appellee Manila Electric Company is hereby ordered to either
transfer its substation at South D and South 6 Streets, Diliman,
Quezon City, or take appropriate measures to reduce its noise at
the property line between the defendant company's compound
and that of the plaintiff-appellant to an average of forty (40) to
fifty (50) decibels within 90 days from finality of this decision;
and to pay the said plaintiff-appellant P20,000.00 in damages
and P5,000.00 for attorney's fees. In all other respects, the
appealed decision is affirmed. No costs.
Concepcion, C.J., Makalintal, Zaldivar, Fernando, Teehankee,
Barredo, Villamor and Makasiar, JJ., concur.
Dizon and Castro, JJ., are on leave.
30
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 118325 January 29, 1997

VIRGILIO M. DEL ROSARIO and CORAZON PAREDES-DEL

ROSARIO, petitioners,
vs.
COURT OF APPEALS and METAL FORMING
CORPORATION, respondents.

NARVASA, C.J.:

On August 28, 1995, the Court En Banc promulgated judgment

in the case of Metal Forming Corporation v. Office of the
President, etc., et al., 1 dismissing the petitioner's appeal and
affirming the decision of the Office of the President dated April
30, 1993. The latter decision in turn affirmed that of the
Department of Trade and Industry rendered on May 29, 1991 in
an administrative case initiated against Metal Forming
Corporation (hereafter, MFC) by complaint of the "spouses
Virgillo M. del Rosario and Corazon Paredes-del Rosario."

The Del Rosarios' complaint, filed on November 21, 1990,

charged MFC with a violation of Section 3 of Act No. 3740, "An
Act to Penalize Fraudulent Advertising, Mislabeling or
Misbranding of Any Product, Stocks, Bonds, etc." It alleged
that: 2

31
 1) "in selling to the public roofing materials known
as "Banawe" shingles, . . . (MFC) made
representations on the durability of the product and
the sturdiness of its installation" through massive
advertisements in print media and television. . .
(and) brochures :"
2) these representations particularly those
characterizing the shingles as "STRUCTURALLY
SAFE AND STRONG" and that the "BANAWE
METAL TILE structure acts as a single unit against
wind and storm pressure due to the strong hook
action on its overlaps" "prompted. . . (the Del
Rosarios) to buy the "Banawe" shingles and. . .
(have) them installed at their residence;" but
3) "(b)arely two (2) months after completion of the
installation, portions of the roof of. . . (the Del
Rosarios) were blown away by strong wind brought
about by typhoon "Ruping."
After due proceedings, the DTI rendered judgment declaring that
MFC had indeed misrepresented its product because "as the
records showed," strong winds actually blew off part of the
structure/roof of the Del Rosario Spouses and the same acted in
parts (instead of as a single unit) when strong winds blew, a part
remaining while another part was blown off. MFC was
accordingly sentenced to pay an "administrative fine of
P10,000.00" (within ten [10] days from finality of the decision),
otherwise its "business name and registration. . . would be
deemed suspended and its establishment closed until the fine
was fully paid."
As already stated, the decision of the DTI (of May 29, 1991)
was, on appeal, affirmed in toto by the Office of the President on
April 30, 1993; and the latter judgment was in turn affirmed by
this Court on August 28, 1995 with a modification solely as to the
fine, which was reduced to P5,000.00. In said judgment of
August 28, 1995, this Court, stressing that the factual findings of
such administrative bodies as the Office of the President are
generally to be accorded respect, if not indeed invested with
finality, pronounced as correct that Office's ruling, among others,
that:
(A)lthough the occurrence of a typhoon is a
fortuitous event which by itself might have
exempted petitioner from liability to private
respondents
". . . it cannot efface the fundamental fact that
(petitioner) acted in bad faith and/or with gross
negligence in failing to deliver the necessary
accessories for the proper installation of the
structure. . . and actually installed inferior roofing
materials at (private respondents') residence, in
violation of the proper installation procedure
expressly specified in the former's brochures and
advertisements for installation, i.e., the metal tile
attached to the roof panels should be by two (2)
self-drilling screws for one [1] metal cleat.
However, instead of conforming with this
procedure, (petitioner) attached some of the metal
cleats with only one (1)-inch ordinary nail each and
others were fastened with only one (1) wood screw
each.. . ."
It appears that MFC replaced and repaired the roof free of
charge, evidently acknowledging that the damage was covered
by its one-year warranty on the materials and the installation.
The repair work was observed and analyzed by the Esteban
Adjusters and Valuers, Inc., which was engaged by the Del
Rosarios to determine the cause of the destruction. 3 The repair;
work was begun on October 23, 1989, with the delivery of
32
replacement tiles, and completed on November 7, 1989.
Thereafter the Esteban Adjusters and Valuers, Inc. submitted its
report to the Del Rosarios, dated November 8, 1989, 4 in which it
made the following conclusion:
The "Banawe" metal tiles which were detached
from the roof trusses were not fastened with two
(2) wood screws on each metal cleat as required
but only with a single wood screw or a combination
of a single wood screw and a 1-inch nail which is
contrary to the design and specification. We have
observed during the course of repai(r) works that
some "Banawe" metal tiles installed were no
longer than the roof span, hence there is
overlapping on the ridge roll/hip. It is very evident
that the original subcontractor (which we were not
able to identify) were in haste to complete the
project. . . .
MFC however declined to concede liability for the other
damages claimed by the Del Rosario Spouses to have been
caused to the interior of their home. This prompted the latter to
commence a civil action against MFC on April 16, 1990 in the
Regional Trial Court of Manila. 5 In this suit, docketed as Civil
Case No. 90-52734, the spouses sought to recover from MFC,
damages resulting from the events just narrated, contending that
aside from the destruction of the roof of their house, injury was
also caused to its electrical wiring, ceiling, furtures, walls, wall
paper, wood parquet flooring and furniture. 6 The plaintiff
spouses reckoned their actual damages at P1,008,003.00
"representing the estimated cost of the repair, restoration and/or
replacement of the damaged areas and items in plaintiffs' house
and the .cost of the inspection conducted by the independent
adjuster (engaged by them), with legal interests thereon from 21
February 1990 when defendant (MFL) received the formal
demand from plaintiffs until fully paid." 7 They also prayed for an
award to them of moral damages in the sum of P3,000,000,00,
exemplary damages in the amount of P1,000,000.00, and
attorney's fees in the sum of P1,000,000.00.
MFC moved to dismiss the complaint for lack of cause of action.
If stated that it had no contractual relationship with the Del
Rosarios since the contract for the purchase and installation of
the roofing, upon which the latter's claims were based, was
actually entered into between it and another person, Jesus M.
Puno (an engineer identified as the Del Rosarios' contractor).
The Trial Court denied the motion. MFC assailed that denial in
the Court of Appeals, but was rebuffed; and its recourse to this
Court (G.R. No. 95514) was also unsuccessful. 8
Trial then ensued after which judgment was rendered on
November 18, 1991 by the Regional Trial Court in favor of the
Del Rosarios, 9 the dispositive portion of which reads as
follows: 10
WHEREFORE, judgment is hereby rendered in
favor of the plaintiff and against the defendant, to
pay:
"a) Actual Damages in the amount of ONE
MILLION EIGHT THOUSAND THREE
(P1,008,003.00) PESOS, with legal interest
thereon, from June 31, 1990 until fully paid;
"b) Moral Damages in the amount of FIVE
HUNDRED THOUSAND (P500,000.00) PESOS;
"c) Exemplary Damages in the amount of THREE
HUNDRED THOUSAND (P300,000.00) PESOS;
and
33
 "d) Attorney's fees and expenses of litigation in the
amount of ONE HUNDRED FIFTY THOUSAND
(P150,000.00) PESOS.
Counter claims filed by the defendant are
dismissed.
SO ORDERED.
The Trial Court held the corporation liable for breach of its
contract for the supply and installation of the roofing materials in
the Del Rosarios' residence. According to the Court: 11
The following facts were duly established from the
evidence supporting plaintiffs' claim for damages:
"1 There was actually serious damages caused on
plaintiffs' house on account of faulty or inferior
installation;
"2. Defendant himself admitted its liability by
making partial repairs of the roofing of "Banawe"
shingles, free of charge, after the typhoon. . .
(Ruping);
"3. There was an expressed warranty specified in
the brochure that there should be two (2) metal
screws for one (1) cleat but the same was violated
by the defendant who only used one (1) 1-inch nail
or a combination of one (1) metal screw to one (1)
cleat;
"4. There is ample evidence including the
testimony of Engr. Puno that it was defendant
Metal Forming Corporation who. . . (had) a
contract with the plaintiffs for the supply and
installation of roofing materials in plaintiffs'
residential house located at No. 17 Tabuena
Street, Corinthian Gardens, Quezon City; and
"5. There was a declared warranty by the
defendants relied upon by the plaintiffs and that
the defendant was guilty of fraud and/or breach of
warranty."
Parenthetically, these conclusions are substantially the same as
those made by the Department of Trade and Industry in its own
judgment rendered on May 29, 1991 affirmed by the Office of
the President in a decision dated April 30, 1993, and ultimately
by this Court En Banc in its decision promulgated on August 28,
1995. 12 The Trial Court ruled that there was privity of contract
between the Del Rosarios and MFC; Engineer Puno acted as
MFC's agent in the signing of the contracts for the supply and
installation of the "Banawe'' shingles; hence, the contract was
really between the Del Rosarios and that company. 13
MFC appealed to the Court of Appeals. In its Decision
promulgated on June 29, 1994. 14 said Court reversed the Trial
Court's judgment, It ruled that there was no privity of contract
between the Del Rosarios and MFC, for the following reasons: 15
a. The contracts for the supply of materials and
installation of the roof were signed by Engr. Puno.
On the face of the contracts, it does not appear
that the Del Rosarios were parties to it or that it
was entered into for their benefit. It does not also
appear that Engr. Puno acted as agent of the Del
Rosarios nor of the corporation.
b. The holding of the trial court that Engr. Puno
was an agent of the corporation is not borne out by
the records. There is no evidence, apart from Engr.
Puno's testimony, to show that any agency exists.
34
 c. The nature of the relationship between the Del
Rosarios and Engr. Puno is also not clear from the
records of the case.
d. While it may be implicit in the complaint of the
Del Rosarios that there was a contract between
them and the corporation, this is not supported by
the evidence presented.
There being no such privity, according to the Court of Appeals,
the Del Rosarios had no cause of action against MFC for breach
of warranties, there being no law allowing them to proceed
directly against those whom their contractor had subcontracted
to furnish materials and do part of the work that the latter was
engaged to perform.16
The Del Rosarios appealed, and in this Court expectedly present
for resolution, 17 the issue of "'WHETHER OR NOT THERE IS A
PRIVITY OF CONTRACT BETWEEN THE PARTIES,'"
There is merit in the petition. The essential issue is whether or
not upon the facts established by the evidence, MFC is
answerable to the Del Rosarios for the damage caused to the
latter's residence when its roof, made of shingles purchased
from and installed by the former, was blown away by a typhoon.
The Court rules that it is.
The facts on record including those set forth in the final
judgment of the Court En Banc involving the same parties,
adverted to in the opening paragraph of this opinion, supra. 18 of
which judgment official cognizance may properly be, as it is
hereby, taken constitute adequate basis for a verdict against
MFC. These are the following:
1. MFC was engaged in the business of selling to
the public roofing materials known as "Banawe"
shingles or metal tiles, and through extensive
advertisements in media and in its brochures,
made representations respecting the durability of
its tiles and the sturdiness of roofing installed in
accordance with its particularly described method,
These representations included statements that
the shingles are "STRUCTURALLY SAFE AND
STRONG" and that the "BANAWE METAL
TILEstructure acts as a single unit against wind
and storm pressure due to the strong hook action
on its overlaps."
2. After reading MFC's brochures and
advertisements, the Del Rosario Spouses
instructed their contractor, Engineer Puno, to use
the "Banawe" shingles or metal tiles in the roofing
of their house then under construction. 19
3. In other words, paraphrasing Article 1546 of the
Civil Code, MFC, as seller to the general public
had made a affirmations of fact and promises
relating to its advertised product, the "Banawe"
tiles, the natural tendency of which was to induce
the buyers, as infact it did induce the Del Rosarios,
to purchase the same, relying thereon.
4. Pursuant to the Del Rosarios' instructions. Puno
placed orders with MFC and signed the pertinent
contracts for the purchase of the shingles,
accepted deliveries thereof and signed
corresponding invoices, and made payments
thereon with the spouses funds. 20
5. Deliveries of the "Banawe" metal tiles or
shingles were made by MFC's employees to the
construction site of the Del Rosarios' residence;
and installation of the metal tiles in the roof of the
Del Rosario's house was made by MFC's workers.
35
 6. MFC "acted in bad faith and/or with gross
negligence in failing to deliver the necessary
accessories for the proper installation of the
structure. . . and actually installed inferior roofing
materials at (private respondents') residence, in
violation of the proper installation procedure
expressly specified in the former's brochures and
advertisements for installation, i.e., the metal tile
attached to the roof panels should be by two (2)
self-drilling screws for one (1) metal cleat. . . (but)
instead of conforming with this procedure,
(petitioner) attached some of the metal cleats with
only one (l)-inch ordinary nail each and others
were fastened with only one (1) wood screw
each. . ." 21
7. As a result, barely two (2) months after
completion of the installation of the roof by MFC's
workers, portions thereof were blown away by the
winds of typhoon "Ruping,"
8. MFC replaced the roof free of charge, in
acknowledgment of its one-year warranty on the
materials and their installation.
All the quibbling about whether Engineer Puno acted as agent of
MFC or of the spouses, is pointless. The matter is not a factor in
determining MFC's liability for its workers' use of inferior
materials and their defective installation of the "Banawe" metal
tiles in the roof of the latter's residence, Prescinding from the
persuasive proof on record that at all times material and with
regard to the acquisition and installation of the metal tiles or
shingles, Puno was in truth acting as contractor of the Del
Rosarios and on their instructions, 22 ascertainment of the
definite identity of the person who actually ordered the shingles
from MFC is utterly inconsequential it might just as well have
been a construction foreman, a trusted domestic, or any friend
or acquaintance of the Del Rosarios in view of the
indisputable fact not only (1) that the tiles were delivered to the
Del Rosarios and used in fabricating the roof of their home, but
also (2) that it was the employees and workers of MFC who (a)
delivered the shingles or metal tiles to the construction site of
the Del Rosarios' home, and (b) undertook and completed the
installation thereof These they did in bad faith, using inferior
materials and assembling them in a manner contrary to MFC's
express representations in its brochures and advertisements
circulated and broadcast to the general public which
representations had, in the first place, induced the Del Rosarios
to choose the metal tiles in question for their roofing. In fine,
since MFC, in bad faith and with gross negligence, infringed the
express warranty made by it to the general public in connection
with the "Banawe" tiles brought to and set up in the house of the
Del Rosarios who had relied on the warranty, and thereby
caused them considerable injury, the identity of the individual
who actually dealt with MFC and asked the latter to make such
delivery and installation is of little moment.
Turning now to the matter of damages, it is the Del Rosarios'
contention that the pecuniary detriment to their home amounted
to P1,008,003.00, covering not only the destruction of the roof,
but also substantial harm to the electrical wiring, ceiling, fixtures,
walls, wallpaper, wood parquet flooring and furniture. 23 They rely
on the Report of the Esteban Adjusters and Valuers, Inc., 24 to
which the Regional Trial Court accorded full credit. But that
report contains no statement whatever of the amount of the
damage. Indeed, the testimony of Engineer Abril, the
representative of the Esteban Adjusters and Valuers, Inc., is that
his firm had been retained only to determine the cause of the
damage, not to estimate and assess it. 25 A similar aridity as to
the amount of the damage, unfortunately characterizes the
testimony of Atty. Virgilio Del Rosario and the rest of the
spouses' proofs. There is therefore no evidentiary foundation
36
upon which to lay an award of actual damages. The Trial Court's
grant thereof must be struck down. Lufthansa German Airlines
vs. CA, et al., promulgated on April 21, 1995, 26 inter alia ruled
that:
Actual or compensatory damages cannot be
presumed, but must be duly proved and proved
with reasonable degree of certainty. A court cannot
rely on speculations, conjectures or guesswork as
to the fact and amount of damages, but must
depend upon competent proof that they have
(been) suffered and on evidence of the actual
amount thereof.
Its grant of moral and exemplary damages was justified by the
Trial Court as follows: 27
Form the evidence presented, plaintiffs' sufferings
have been duly and substantially proven by the
defendant's fraudulent actuation and breach of
warranty, and thereby entitled for the claim of
damages and litigation costs as enunciated by the
testimony of the plaintiff... that the damages to his
house caused sufferings and feelings of shock.
helplessness, fears, embarrassment and anger,
thereby entitling him to Moral Damages which
should be assessed at P500,000.00.
"The moral damages. . . . (are awarded) for
indemnity or reparation not punishment or
correction, that is, an award to entitle the injured
party to obtain means (of) diversions and
amusement that will serve to alleviate the moral
sufferings he has undergone by reason of
defendant's culpable action. (RNB Surety and Ins.
Co. v. IAC, G.R No. 64515, June 22, 1984, 129
SCRA 745)."
That MFC did in truth act with bad faith, in flagrant breach of its
express warranties made to the general public and in wanton
disregard of the rights of the Del Rosarios who relied on those
warranties, is adequately demonstrated by the recorded proofs.
The law explicitly authorizes the award of moral damages "in
breaches of contract where the defendant acted fraudulently or
in bad faith." 28 There being, moreover, satisfactory evidence of
the psychological and mental trauma actually suffered by the Del
Rosarios, the grant to them of moral damages is warranted.
Over a period of about a month. they experienced "feelings of
shock, helplessness, fear, embarrassment and anger." 29 As
declared by this Court in Makabili v. Court of Appeals, 30 among
other precedents:
It is essential. . . . in the award of damages that the
claimant must have satisfactorily proven during the
trial the existence of the factual basis of the
damages and its causal connection to defendant's
acts. This is so because moral damages though
incapable of pecuniary estimation, are in the
category of an award designed to compensate the
claimant for actual injury suffered and not to
impose a penalty on the wrongdoer (Enervida v.
De la Torre, 55 SCRA 340 [1974.] and are
allowable only when specifically prayed for in the
complaint. (San Miguel Brewery, Inc. v. Magno, 21
SCRA 292 [1968])
As reflected in the records of the case, the Court of
Appeals was in agreement with the findings of the
trial court that petitioners suffered anguish,
embarrassment and mental sufferings due to the
failure of private respondent to perform its
obligation to petitioners. According to the Court of
Appeals, private respondent acted in wanton
disregard of the rights of petitioners. These
37
 pronouncements lay the basis and justification for
this Court to award petitioners moral and
exemplary damages."
This Court also agrees with the Trial Court that exemplary
damages are properly exigible of MFC, "Article 2229 of the Civil
Code provides that such damages may be imposed by way of
example or correction for the public good, While exemplary
damages cannot be recovered as a matter of right, they need
not be proved, although plaintiff must show that he is entitled to
moral, temperate or compensatory damages before the court
may consider the question of whether or not exemplary
damages should be awarded." 31 "Exemplary damages are
imposed not to enrich one party or impoverish another but to
serve as a deterrent against or as a negative incentive to curb
socially deleterious actions." 32
However, the same statutory and jurisprudential standards just
mentioned dictate reduction of the amounts of moral and
exemplary damages fixed by the Trial Court. There is, to be
sure, no hard and fast rule for determining what would be a fair
amount of moral (or exemplary) damages, each case having to
be governed by its attendant particulars, Generally, the amount
of moral damages should be commensurate with the actual loss
or injury suffered. In the case of PNB v. C.A, just cited, 33 this
Court quoted with approval the following observation from RCPI
v. Rodriguez, 34 viz.:
. . . Nevertheless, we find the award of
P100,000.00 as moral damages in favor of
respondent Rodriguez excessive and
unconscionable. In the case of Prudenciado
v. Alliance Transport System, Inc. (148 SCRA 440
[1987]) we said: ". . . [I]t is undisputed that the trial
courts are given discretion to determine the
amount of moral damages (Alcantara v. Surro, 93
Phil. 472) and that the Court of Appeals can only
modify or change the amount awarded when they
are palpably and scandalously excessive "so as to
indicate that it was the result of passion, prejudice
or corruption on the part of the trial court" (Gellada
v. Warner Barnes & Co., Inc., 57 O.G. [4] 7347,
7358; Sadie v. Bacharach Motors Co., Inc., 57
O.G. [4] 636 and Adone v. Bacharach Motor Co.,
Inc., 57 O.G. 656). But in more recent cases where
the awards of moral and exemplary damages are
far too excessive compared to the actual loses
sustained by the aggrieved party, this Court ruled
that they should be reduced to more reasonable
amounts.
. . . (Emphasis ours.)
In other words, the moral damages awarded must
be commensurate with the loss or injury suffered.
In the same case (PNB v. CA), this Court 35 found the amount of
exemplary damages required to be paid (P1,000,000.00) "too
excessive" and reduced it to an "equitable level" (P25,000.00).
. . . (T)he award of P1,000,000.00 exemplary
damages is also far too excessive and should
likewise be reduced to an equitable level.
Exemplary damages are imposed not to enrich one
party or impoverish another but to serve as a
deterrent against or as a negative incentive to curb
socially deleterious actions.
In another case involving strikingly analogous facts decided in
1994, Geraldez vs. CA., 36 where no actual damages were
adjudicated but moral and exemplary damages in similar
amounts (P500.000.00 and P300,000.00, respectively) were
awarded by the Trial Court, as in this case, this Court reduced
the amount of moral damages to P100,000.00 and of exemplary
38
damages to P50,000.00. The Court sees no reason to adopt a
different treatment in the case at bar, and accordingly reduces
the moral damages from P500,000.00 to P100,000.00, and the
exemplary damages from P300,000.00 to P50,000.00.

Finally, like the adjudication of actual or compensatory damages,

the award of attorney's fees must be deleted. The matter was
dealt with only in the dispositive portion of the Trial Court's
decision. Since the judgment does not say why attorney's fees
are awarded, there is no basis for such award, which should
consequently be removed. So did this Court rule, for instance,
in Scott Consultants and Resource Development Corp., Inc.
vs. CA, et al.: 37

It is settled that the award of attorney's fees is the

exception rather than the rule and counsel's fees
are not to be awarded every time a party wins. The
power of the court to award attorney's fees under
Article 2208 of the Civil Code demands factual,
legal, and equitable justification; its basis cannot
be left to speculation or conjecture. Where
granted. the court must explicitly state in the body
of the decision, and not only in the dispositive
portion thereof, the legal reason for the award of
attorney's fees.

WHEREFORE, the challenged Decision of the Court of Appeals

of June 29, 1994 is REVERSED and SET ASIDE; and the
Decision of the Regional Trial Court of November 18, 1991 is
REINSTATED AND AFFIRMED, with the modification that the
award of actual damages and attorney's fees is deleted, and the
moral and exemplary damages awarded are reduced from
P500,000.00 to P100,000.00, and from P300,000.00 to
P50,000.00, respectively.

IT IS SO ORDERED.

39
FIRST DIVISION
[G.R. No. 136500. December 3, 1999]
CONRADO R. ISIDRO, petitioner, vs. NISSAN MOTOR
PHILIPPINES, INC., respondent.
DECISION
PARDO, J.:
The case before the Court is an appeal via certiorari from
the orders[1] of the Regional Trial Court, Branch 81, Quezon
City[2] dismissing the complaint below on the ground that the
action has prescribed.
The facts are as follows:
On December 21, 1995, petitioner bought from respondent a
brand new Nissan Sentra with an express manufacturer's
warranty against hidden defects for a period of 24 months or
50,000 kilometers, whichever comes first.[3]
On August 31, 1998, or two years and nine months after
delivery of the car, petitioner filed with the Regional Trial Court,
Quezon City, assigned to Branch 81, a complaint against
respondent for breach of warranty.[4]
On October 7, 1998, respondent filed with the trial court a
motion to dismiss the complaint alleging that petitioner's cause
of action is barred by the statute of limitation under Article 1571
of the Civil Code.[5]
On October 9, 1998, petitioner filed with the trial court an
opposition to the motion to dismiss pointing out that Article 1571
applies only to implied warranties and not to express warranty.[6]
On November 11, 1998, the trial court issued an order
dismissing the complaint based on the ground that plaintiffs
cause of action has prescribed since the complaint was filed
more than two years after delivery of the car which is the period
during which respondent expressly warranted that it would
repair/replace defective parts of the car.[7]
On November 20, 1998, petitioner filed with the trial court a
motion for reconsideration of the dismissal stating that the
prescribed period of warranty is four years in case of rescission
and ten years in case of specific performance. [8]
On December 2, 1998, respondent filed with the trial court
an opposition to the motion for reconsideration. [9]
On December 9, 1998, the trial court denied the motion for
reconsideration.[10]
Hence, this petition.[11]
On February 3, 1999, the Court required respondent to
comment on the petition within ten (10) days from notice. [12]
On March 8, 1999, respondent filed its comment. [13]
On September 6, 1999, we gave due course to the petition.
[14]
At issue is whether or not petitioner's action for enforcement
of the manufacturer's express warranty covering the subject
motor vehicle has prescribed.
We agree with the trial court that petitioner's action has
prescribed.
The manufacturer's warranty covering the subject motor
vehicle was for defective parts over a period of twenty four (24)
40
months or fifty thousand (50,000) kilometers, whichever comes
first. Where there is an express warranty in the contract, as in
the case at bar, the prescriptive period is the one specified in the
express warranty, if any.[15]

The action to enforce the warranty was filed two and a half
years from the date of the purchase or delivery of the vehicle
subject of the warranty.

Clearly, the action has prescribed. The period of the

guarantee under the express warranty has expired.

WHEREFORE, the Court hereby DENIES the petition for

review on certiorari of the orders of the Regional Trial Court,
Quezon City, Branch 81, dated November 11, 1998, and
December 9, 1998, in Civil Case No. Q-98-35408, and AFFIRMS
the aforesaid orders.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 110295 October 18, 1993

COCA-COLA BOTTLERS PHILIPPINES, INC.,

vs.

41
 THE HONORABLE COURT OF APPEALS (Fifth Division) and
MS. LYDIA GERONIMO, respondents.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for
petitioner.
Alejandro M. Villamil for private respondent.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which
had to close down as a consequence of the big drop in its sales
of soft drinks triggered by the discovery of foreign substances in
certain beverages sold by it. The interesting issue posed is
whether the subsequent action for damages by the proprietress
against the soft drinks manufacturer should be treated as one for
breach of implied warranty against hidden defects or
merchantability, as claimed by the manufacturer, the petitioner
herein which must therefore be filed within six months from the
delivery of the thing sold pursuant to Article 1571 of the Civil
Code, or one for quasi-delict, as held by the public respondent,
which can be filed within four years pursuant to Article 1146 of
the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private
respondent, filed a complaint for damages against petitioner with
the Regional Trial Court (RTC) of Dagupan City. 1 The case was
docketed as Civil Case No. D-9629. She alleges in her
complaint that she was the proprietress of Kindergarten
Wonderland Canteen docketed as located in Dagupan City, an
enterprise engaged in the sale of soft drinks (including Coke and
Sprite) and other goods to the students of Kindergarten
Wonderland and to the public; on or about 12 August 1989,
some parents of the students complained to her that the Coke
and Sprite soft drinks sold by her contained fiber-like matter and
other foreign substances or particles; he then went over her
stock of softdrinks and discovered the presence of some fiber-
like substances in the contents of some unopened Coke bottles
and a plastic matter in the contents of an unopened Sprite bottle;
she brought the said bottles to the Regional Health Office of the
Department of Health at San Fernando, La Union, for
examination; subsequently, she received a letter from the
Department of Health informing her that the samples she
submitted "are adulterated;" as a consequence of the discovery
of the foreign substances in the beverages, her sales of soft
drinks severely plummeted from the usual 10 cases per day to
as low as 2 to 3 cases per day resulting in losses of from
P200.00 to P300.00 per day, and not long after that she had to
lose shop on 12 December 1989; she became jobless and
destitute; she demanded from the petitioner the payment of
damages but was rebuffed by it. She prayed for judgment
ordering the petitioner to pay her P5,000.00 as actual damages,
P72,000.00 as compensatory damages, P500,000.00 as moral
damages, P10,000.00 as exemplary damages, the amount
equal to 30% of the damages awarded as attorney's fees, and
the costs. 2
The petitioner moved to dismiss 3 the complaint on the grounds
of failure to exhaust administrative remedies and prescription.
Anent the latter ground, the petitioner argued that since the
complaint is for breach of warranty under Article 1561 of the said
Code. In her Comment 4 thereto, private respondent alleged that
the complaint is one for damages which does not involve an
administrative action and that her cause of action is based on an
injury to plaintiff's right which can be brought within four years
pursuant to Article 1146 of the Civil Code; hence, the complaint
was seasonably filed. Subsequent related pleadings were
thereafter filed by the parties. 5
In its Order of 23 January 1991, 6 the trial court granted the
motion to dismiss. It ruled that the doctrine of exhaustion of
administrative remedies does not apply as the existing
administrative remedy is not adequate. It also stated that the
42
complaint is based on a contract, and not on quasi-delict, as
there exists pre-existing contractual relation between the parties;
thus, on the basis of Article 1571, in relation to Article 1562, the
complaint should have been filed within six months from the
delivery of the thing sold.
Her motion for the reconsideration of the order having been
denied by the trial court in its Order of 17 April 1991, 7 the private
respondent came to this Court via a petition for review
on certiorari which we referred to the public respondent "for
proper determination and disposition. 8 The public respondent
docketed the case as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the public
respondent annulled the questioned orders of the RTC and
directed it to conduct further proceedings in Civil Case No. D-
9629. In holding for the private respondent, it ruled that:
Petitioner's complaint being one for quasi-
delict, and not for breach of warranty as
respondent contends, the applicable prescriptive
period is four years.
It should be stressed that the allegations in the
complaint plainly show that it is an action or
damages arising from respondent's act of
"recklessly and negligently manufacturing
adulterated food items intended to be sold or
public consumption" (p. 25, rollo). It is truism in
legal procedure that what determines the nature of
an action are the facts alleged in the complaint and
those averred as a defense in the defendant's
answer (I Moran 126; Calo v. Roldan, 76 Phil. 445;
Alger Electric, Inc. v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article 2176
of the Civil code, the existence of contractual
relations between the parties does not absolutely
preclude an action by one against the other
forquasi-delict arising from negligence in the
performance of a contract.
In Singson v. Court of Appeals (23 SCRA 1117), the Supreme
Court ruled:
It has been repeatedly held: that the
existence of a contract between the
parties does not bar the commission
of a tort by the one against the other
and the consequent recovery of
damages therefor
. . . . Thus in Air France vs.
Carrascoso, . . . (it was held that)
although the relation between a
passenger and a carrier is
"contractual both in origin and in
nature the act that breaks the
contract may also be a tort.
Significantly, in American jurisprudence, from
which Our law on Sales was taken, the authorities
are one in saying that he availability of an action or
breach of warranty does not bar an action for torts
in a sale of defective goods. 10
Its motion for the reconsideration of the decision having been
denied by the public respondent in its Resolution of 14 May
1993, 11 the petitioner took his recourse under Rule 45 of the
Revised Rules of Court. It alleges in its petition that:
I.
THE HONORABLE COURT OF APPEALS
COMMITTED A GRAVE AND REVERSIBLE
43
 ERROR IN RULING THAT ARTICLE 2176, THE
GENERAL PROVISION ON QUASI-DELICTS, IS
APPLICABLE IN THIS CASE WHEN THE
ALLEGATIONS OF THE COMPLAINT CLEARLY
SHOW THAT PRIVATE RESPONDENT'S CAUSE
OF ACTION IS BASEDON BREACH OF A
SELLER'S IMPLIED WARRANTIES UNDER OUR
LAW ON SALES.
II.
CORROLARILY, THE HONORABLE COURT OF
APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR IN OVERRULING
PETITIONER'S ARGUMENT THAT PRIVATE
RESPONDENT'S CAUSE OF ACTION HAD
PRESCRIBED UNDER ARTICLE 1571 OF THE
CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will
reveal that the primary legal basis for private respondent's cause
of action is not Article 2176 of the Civil Code on quasi-delict
for the complaint does not ascribe any tortious or wrongful
conduct on its part but Articles 1561 and 1562 thereof on
breach of a seller's implied warranties under the law on sales. It
contends the existence of a contractual relation between the
parties (arising from the contract of sale) bars the application of
the law on quasi-delicts and that since private respondent's
cause of action arose from the breach of implied warranties, the
complaint should have been filed within six months room
delivery of the soft drinks pursuant to Article 171 of the Civil
Code.
In her Comment the private respondent argues that in case of
breach of the seller's implied warranties, the vendee may, under
Article 1567 of the Civil Code, elect between withdrawing from
the contract or demanding a proportionate reduction of the price,
with damages in either case. She asserts that Civil Case No. D-
9629 is neither an action for rescission nor for proportionate
reduction of the price, but for damages arising from a quasi-
delict and that the public respondent was correct in ruling that
the existence of a contract did not preclude the action for quasi-
delict. As to the issue of prescription, the private respondent
insists that since her cause of action is based on quasi-delict,
the prescriptive period therefore is four (4) years in accordance
with Article 1144 of the Civil Code and thus the filing of the
complaint was well within the said period.
We find no merit in the petition. The public respondent's
conclusion that the cause of action in Civil Case No. D-9629 is
found on quasi-delict and that, therefore, pursuant to Article
1146 of the Civil Code, it prescribes in four (4) years is
supported by the allegations in the complaint, more particularly
paragraph 12 thereof, which makes reference to the reckless
and negligent manufacture of "adulterated food items intended
to be sold for public consumption."
The vendee's remedies against a vendor with respect to the
warranties against hidden defects of or encumbrances upon the
thing sold are not limited to those prescribed in Article 1567 of
the Civil Code which provides:
Art. 1567. In the case of Articles 1561, 1562, 1564,
1565 and 1566, the vendee may elect between
withdrawing from the contract and demanding a
proportionate reduction of the price, with damages
either
case. 13
The vendee may also ask for the annulment of the contract upon
proof of error or fraud, in which case the ordinary rule on
obligations shall be applicable. 14 Under the law on obligations,
responsibility arising from fraud is demandable in all obligations
and any waiver of an action for future fraud is void.
44
Responsibility arising from negligence is also demandable in any Under American law, the liabilities of a manufacturer or
obligation, but such liability may be regulated by the courts, seller of injury-causing products may be based on
according to the circumstances. 15 Those guilty of fraud, negligence, 21 breach of warranty, 22 tort, 23 or other
negligence, or delay in the performance of their obligations and grounds such as fraud, deceit, or
those who in any manner contravene the tenor thereof are liable misrepresentation. 24 Quasi-delict, as defined in Article
for damages. 16 2176 of the Civil Code, (which is known in Spanish legal
treaties as culpa aquiliana, culpa extra-contractual or
The vendor could likewise be liable for quasi-delict under Article cuasi-delitos) 25 is homologous but not identical to tort
2176 of the Civil Code, and an action based thereon may be under the common law, 26 which includes not only
brought by the vendee. While it may be true that the pre-existing negligence, but also intentional criminal acts, such as
contract between the parties may, as a general rule, bar the assault and battery, false imprisonment and deceit. 27
applicability of the law on quasi-delict, the liability may itself be
deemed to arise from quasi-delict, i.e., the acts which breaks the It must be made clear that our affirmance of the decision of the
contract may also be a quasi-delict. Thus, in Singson vs. Bank public respondent should by no means be understood as
of the Philippine Islands, 17 this Court stated: suggesting that the private respondent's claims for moral
damages have sufficient factual and legal basis.
We have repeatedly held, however, that the
existence of a contract between the parties does IN VIEW OF ALL THE FOREGOING, the instant petition is
not bar the commission of a tort by the one against hereby DENIED for lack of merit, with costs against the
the other and the consequent recovery of damages petitioner.
therefor. 18 Indeed, this view has been, in effect,
reiterated in a comparatively recent case. Thus, SO ORDERED.
in Air France vs. Carrascoso, 19 involving an
airplane passenger who, despite hi first-class
ticket, had been illegally ousted from his first-class
accommodation and compelled to take a seat in
the tourist compartment, was held entitled to
recover damages from the air-carrier, upon the
ground of tort on the latter's part, for, although the
relation between the passenger and a carrier is
"contractual both in origin and nature . . . the act
that breaks the contract may also be a tort.

Otherwise put, liability for quasi-delict may still exist

despite the presence of contractual relations. 20

45

F. No. 16951. In Bank. July 5, 1944
GLADYS ESCOLA, Respondent, v. COCA COLA BOTTLING
COMPANY OF FRESNO (a Corporation), Appellant.
COUNSEL
H. K. Landram for Appellant.
C. Ray Robinson, Willard B. Treadwell, Dean S. Lesher, Loraine
B. Rogers, Belli & Leahy and Melvin M. Belli for Respondent. [24
Cal. 2d 456]
OPINION
GIBSON, C.J.
Plaintiff, a waitress in a restaurant, was injured when a bottle of
Coca Cola broke in her hand. She alleged that defendant
company, which had bottled and delivered the alleged defective
bottle to her employer, was negligent in selling "bottles
containing said beverage which on account of excessive
pressure of gas or by reason of some defect in the bottle was
dangerous ... and likely to explode." This appeal is from a
judgment upon a jury verdict in favor of plaintiff.
Defendant's driver delivered several cases of Coca Cola to the
restaurant, placing them on the floor, one on top of the other,
under and behind the counter, where they remained at least
thirty-six hours. Immediately before the accident, plaintiff picked
up the top case and set it upon a near-by ice cream cabinet in
front of and about three feet from the refrigerator. She then
proceeded to take the bottles from the case with her right hand,
one at a time, and put them into the refrigerator. Plaintiff testified
that after she had placed three bottles in the refrigerator and had
moved the fourth bottle about eighteen inches from the case "it
exploded in my hand." The bottle broke into two jagged pieces
and inflicted a deep five-inch cut, severing blood vessels, nerves
and muscles of the thumb and palm of the hand. Plaintiff further
testified that when the bottle exploded, "It made a sound similar
to an electric light bulb that would have dropped. It made a loud
pop." Plaintiff's employer testified, "I was about twenty feet from
where it actually happened and I heard the explosion." A fellow
employee, on the opposite side of the counter, testified that
plaintiff "had the bottle, I should judge, waist high, and I know
that it didn't bang either the case or the door or another bottle ...
when it popped. It sounded just like a fruit jar would blow up. ..."
The witness further testified that the contents of the bottle "flew
all over herself and myself and the walls and one thing and
another."
The top portion of the bottle, with the cap, remained in plaintiff's
hand, and the lower portion fell to the floor but did not break.
The broken bottle was not produced at the trial, the pieces
having been thrown away by an employee of the restaurant
shortly after the accident. Plaintiff, however, described the
broken pieces, and a diagram of the bottle was made showing
the location of the "fracture line" where the bottle broke in
two. [24 Cal. 2d 457]
One of defendant's drivers, called as a witness by plaintiff,
testified that he had seen other bottles of Coca Cola in the past
explode and had found broken bottles in the warehouse when
he took the cases out, but that he did not know what made them
blow up.
Plaintiff then rested her case, having announced to the court that
being unable to show any specific acts of negligence she relied
completely on the doctrine of res ipsa loquitur.
46
Defendant contends that the doctrine of res ipsa loquitur does
not apply in this case, and that the evidence is insufficient to
support the judgment.
Many jurisdictions have applied the doctrine in cases involving
exploding bottles of carbonated beverages. (See Payne v. Rome
Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E. 1087]; Stolle v.
Anheuser-Busch, 307 Mo. 520 [271 S.W. 497, 39 A.L.R. 1001];
Bradley v. Conway Springs Bottling Co., 154 Kan. 282 [118 P.2d
601]; Ortego v. Nehi Bottling Works, 199 La. 599 [6 So. 2d 677];
MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29
A.2d 868]; Macres v. Coca-Cola Bottling Co., 290 Mich. 567 [287
N.W. 922]; Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d
1020.) Other courts for varying reasons have refused to apply
the doctrine in such cases. (See Gerber v. Faber, 54 Cal. App.
2d 674 [129 P.2d 485]; Loebig's Guardian v. Coca-Cola Bottling
Co., 259 Ky. 124 [81 S.W.2d 910]; Stewart v. Crystal Coca-Cola
Bottling Co., 50 Ariz. 60 [68 P.2d 952]; Glaser v. Seitz, 35 Misc.
341 [71 N.Y.S. 942]; Luciano v. Morgan, 267 App. Div. 785 [45
N.Y.S.2d 502]; cf. Berkens v. Denver Coca-Cola Bottling Co.,
109 Colo. 140 [122 P.2d 884]; Ruffin v. Coca Cola Bottling Co.,
311 Mass. 514 [42 N.E.2d 259]; Slack v. Premier-Pabst
Corporation, 40 Del. 97 [5 A.2d 516]; Wheeler v. Laurel Bottling
Works, 111 Miss. 442 [71 So. 743, L.R.A. 1916E 1074]; Seven-
Up Bottling Co. v. Gretes, __________ Va. __________ [27
S.E.2d 925]; Dail v. Taylor, 151 N.C. 284 [66 S.E. 135, 28
L.R.A.N.S. 949].) It would serve no useful purpose to discuss the
reasoning of the foregoing cases in detail, since the problem is
whether under the facts shown in the instant case the conditions
warranting application of the doctrine have been satisfied.
[1] Res ipsa loquitur does not apply unless (1) defendant had
exclusive control of the thing causing the injury and (2) the
accident is of such a nature that it ordinarily [24 Cal. 2d
458] would not occur in the absence of negligence by the
defendant. (Honea v. City Dairy, Inc., 22 Cal. 2d 614, 616-617
[140 P.2d 369], and authorities there cited; cf. Hinds v.
Wheadon, 19 Cal. 2d 458, 461 [121 P.2d 724]; Prosser on Torts
[1941], 293-301.)
[2] Many authorities state that the happening of the accident
does not speak for itself where it took place some time after
defendant had relinquished control of the instrumentality causing
the injury. Under the more logical view, however, the doctrine
may be applied upon the theory that defendant had control at
the time of the alleged negligent act, although not at the time of
the accident, provided plaintiff first proves that the condition of
the instrumentality had not been changed after it left the
defendant's possession. (See cases collected in Honea v. City
Dairy, Inc., 22 Cal. 2d 614, 617-618 [140 P.2d 369].) [3] As said
in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 [20 A.2d 352,
354], "defendant is not charged with the duty of showing
affirmatively that something happened to the bottle after it left its
control or management; ... to get to the jury the plaintiff must
show that there was due care during that period." Plaintiff must
also prove that she handled the bottle carefully. The reason for
this prerequisite is set forth in Prosser on Torts, supra, at page
300, where the author states: "Allied to the condition of exclusive
control in the defendant is that of absence of any action on the
part of the plaintiff contributing to the accident. Its purpose, of
course, is to eliminate the possibility that it was the plaintiff who
was responsible. If the boiler of a locomotive explodes while the
plaintiff engineer is operating it, the inference of his own
negligence is at least as great as that of the defendant, and res
ipsa loquitur will not apply until he has accounted for his own
conduct." (See, also, Olson v. Whitthorne & Swan, 203 Cal. 206,
208-209 [263 P. 518, 58 A.L.R. 129].) [4] It is not necessary, of
course, that plaintiff eliminate every remote possibility of injury to
the bottle after defendant lost control, and the requirement is
satisfied if there is evidence permitting a reasonable inference
that it was not accessible to extraneous harmful forces and that
it was carefully handled by plaintiff or any third person who may
have moved or touched it. (Cf. Prosser, supra, p. 300.) If such
evidence is presented, the question becomes one for the trier of
fact (see, e. g., [24 Cal. 2d 459] MacPherson v. Canada Dry
Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868, 869]), and,
accordingly, the issue should be submitted to the jury under
proper instructions.
47
In the present case no instructions were requested or given on
this phase of the case, although general instructions upon res
ipsa loquitur were given. Defendant, however, has made no
claim of error with reference thereto on this appeal. [5] Upon an
examination of the record, the evidence appears sufficient to
support a reasonable inference that the bottle here involved was
not damaged by any extraneous force after delivery to the
restaurant by defendant. It follows, therefore, that the bottle was
in some manner defective at the time defendant relinquished
control, because sound and properly prepared bottles of
carbonated liquids do not ordinarily explode when carefully
handled.
[6] The next question, then, is whether plaintiff may rely upon the
doctrine of res ipsa loquitur to supply an inference that
defendant's negligence was responsible for the defective
condition of the bottle at the time it was delivered to the
restaurant. Under the general rules pertaining to the doctrine, as
set forth above, it must appear that bottles of carbonated liquid
are not ordinarily defective without negligence by the bottling
company. In 1 Shearman and Redfield on Negligence (rev. ed.
1941), page 153, it is stated that: "The doctrine ... requires
evidence which shows at least the probability that a particular
accident could not have occurred without legal wrong by the
defendant."
An explosion such as took place here might have been caused
by an excessive internal pressure in a sound bottle, by a defect
in the glass of a bottle containing a safe pressure, or by a
combination of these two possible causes. The question is
whether under the evidence there was a probability that
defendant was negligent in any of these respects. If so, the
doctrine of res ipsa loquitur applies.
[7] The bottle was admittedly charged with gas under pressure,
and the charging of the bottle was within the exclusive control of
defendant. As it is a matter of common knowledge that an
overcharge would not ordinarily result without negligence, it
follows under the doctrine of res ipsa loquitur that if the bottle
was in fact excessively charged an inference of defendant's
negligence would arise. [8] If [24 Cal. 2d 460] the explosion
resulted from a defective bottle containing a safe pressure, the
defendant would be liable if it negligently failed to discover such
flaw. If the defect were visible, an inference of negligence would
arise from the failure of defendant to discover it. Where defects
are discoverable, it may be assumed that they will not ordinarily
escape detection if a reasonable inspection is made, and if such
a defect is overlooked an inference arises that a proper
inspection was not made. A difficult problem is presented where
the defect is unknown and consequently might have been one
not discoverable by a reasonable, practicable inspection. In the
Honea case we refused to take judicial notice of the technical
practices and information available to the bottling industry for
finding defects which cannot be seen. In the present case,
however, we are supplied with evidence of the standard
methods used for testing bottles.
A chemical engineer for the Owens-Illinois Glass Company and
its Pacific Coast subsidiary, maker of Coca Cola bottles,
explained how glass is manufactured and the methods used in
testing and inspecting bottles. He testified that his company is
the largest manufacturer of glass containers in the United
States, and that it uses the standard methods for testing bottles
recommended by the glass containers association. A pressure
test is made by taking a sample from each mold every three
hours--approximately one out of every 600 bottles--and
subjecting the sample to an internal pressure of 450 pounds per
square inch, which is sustained for one minute. (The normal
pressure in Coca Cola bottles is less than 50 pounds per square
inch.) The sample bottles are also subjected to the standard
thermal shock test. The witness stated that these tests are
"pretty near" infallible.
[9] It thus appears that there is available to the industry a
commonly-used method of testing bottles for defects not
apparent to the eye, which is almost infallible. Since Coca Cola
bottles are subjected to these tests by the manufacturer, it is not
likely that they contain defects when delivered to the bottler
48
which are not discoverable by visual inspection. Both new and
used bottles are filled and distributed by defendant. The used
bottles are not again subjected to the tests referred to above,
and it may be inferred that defects not discoverable by visual
inspection do not develop in bottles after they are manufactured.
Obviously, if such defects do [24 Cal. 2d 461] occur in used
bottles there is a duty upon the bottler to make appropriate tests
before they are refilled, and if such tests are not commercially
practicable the bottles should not be re-used. This would seem
to be particularly true where a charged liquid is placed in the
bottle. It follows that a defect which would make the bottle
unsound could be discovered by reasonable and practicable
tests.
Although it is not clear in this case whether the explosion was
caused by an excessive charge or a defect in the glass, there is
a sufficient showing that neither cause would ordinarily have
been present if due care had been used. Further, defendant had
exclusive control over both the charging and inspection of the
bottles. Accordingly, all the requirements necessary to entitle
plaintiff to rely on the doctrine of res ipsa loquitur to supply an
inference of negligence are present.
[10] It is true that defendant presented evidence tending to show
that it exercised considerable precaution by carefully regulating
and checking the pressure in the bottles and by making visual
inspections for defects in the glass at several stages during the
bottling process. It is well settled, however, that when a
defendant produces evidence to rebut the inference of
negligence which arises upon application of the doctrine of res
ipsa loquitur, it is ordinarily a question of fact for the jury to
determine whether the inference has been dispelled. (Druzanich
v. Criley, 19 Cal. 2d 439, 444 [122 P.2d 53]; Michener v. Hutton,
203 Cal. 604, 610 [265 P. 238, 59 A.L.R. 480].)
The judgment is affirmed.
Shenk, J., Curtis, J., Carter, J., and Schauer, J., concurred.
TRAYNOR, J.
I concur in the judgment, but I believe the manufacturer's
negligence should no longer be singled out as the basis of a
plaintiff's right to recover in cases like the present one. In my
opinion it should now be recognized that a manufacturer incurs
an absolute liability when an article that he has placed on the
market, knowing that it is to be used without inspection, proves
to have a defect that causes injury to human beings. McPherson
v. Buick Motor Co., 217 N.Y. 382 [111 N.E. 1050, Ann.Cas.
1916C 440, L.R.A. 1916F 696], established the principle,
recognized by this court, that irrespective of privity of contract,
the manufacturer is responsible [24 Cal. 2d 462] for an injury
caused by such an article to any person who comes in lawful
contact with it. (Sheward v. Virtue, 20 Cal. 2d 410 [126 P.2d
345]; Kalash v. Los Angeles Ladder Co., 1 Cal. 2d 229 [34 P.2d
481].) In these cases the source of the manufacturer's liability
was his negligence in the manufacturing process or in the
inspection of component parts supplied by others. Even if there
is no negligence, however, public policy demands that
responsibility be fixed wherever it will most effectively reduce the
hazards to life and health inherent in defective products that
reach the market. It is evident that the manufacturer can
anticipate some hazards and guard against the recurrence of
others, as the public cannot. Those who suffer injury from
defective products are unprepared to meet its consequences.
The cost of an injury and the loss of time or health may be an
overwhelming misfortune to the person injured, and a needless
one, for the risk of injury can be insured by the manufacturer and
distributed among the public as a cost of doing business. It is to
the public interest to discourage the marketing of products
having defects that are a menace to the public. If such products
nevertheless find their way into the market it is to the public
interest to place the responsibility for whatever injury they may
cause upon the manufacturer, who, even if he is not negligent in
the manufacture of the product, is responsible for its reaching
the market. However intermittently such injuries may occur and
however haphazardly they may strike, the risk of their
occurrence is a constant risk and a general one. Against such a
49
risk there should be general and constant protection and the
manufacturer is best situated to afford such protection.
The injury from a defective product does not become a matter of
indifference because the defect arises from causes other than
the negligence of the manufacturer, such as negligence of a
submanufacturer of a component part whose defects could not
be revealed by inspection (see Sheward v. Virtue, 20 Cal. 2d
410 [126 P.2d 345]; O'Rourke v. Day & Night Water Heater Co.,
Ltd., 31 Cal. App. 2d 364 [88 P.2d 191]; Smith v. Peerless Glass
Co., 259 N.Y. 292 [181 N.E. 576]), or unknown causes that even
by the device of res ipsa loquitur cannot be classified as
negligence of the manufacturer. The inference of negligence
may be dispelled by an affirmative showing of proper care. If the
evidence against the fact inferred [24 Cal. 2d 463] is "clear,
positive, uncontradicted, and of such a nature that it cannot
rationally be disbelieved, the court must instruct the jury that the
nonexistence of the fact has been established as a matter of
law." (Blank v. Coffin, 20 Cal. 2d 457, 461 [126 P.2d 868].) An
injured person, however, is not ordinarily in a position to refute
such evidence or identify the cause of the defect, for he can
hardly be familiar with the manufacturing process as the
manufacturer himself is. In leaving it to the jury to decide
whether the inference has been dispelled, regardless of the
evidence against it, the negligence rule approaches the rule of
strict liability. It is needlessly circuitous to make negligence the
basis of recovery and impose what is in reality liability without
negligence. If public policy demands that a manufacturer of
goods be responsible for their quality regardless of negligence
there is no reason not to fix that responsibility openly.
In the case of foodstuffs, the public policy of the state is
formulated in a criminal statute. Section 26510 of the Health and
Safety Code prohibits the manufacturing, preparing,
compounding, packing, selling, offering for sale, or keeping for
sale, or advertising within the state, of any adulterated food.
Section 26470 declares that food is adulterated when "it has
been produced, prepared, packed, or held under insanitary
conditions whereby it may have been rendered diseased,
unwholesome or injurious to health." The statute imposes
criminal liability not only if the food is adulterated, but if its
container, which may be a bottle ( 26451), has any deleterious
substance ( 26470 (6)), or renders the product injurious to
health. ( 26470 (4)). The criminal liability under the statute
attaches without proof of fault, so that the manufacturer is under
the duty of ascertaining whether an article manufactured by him
is safe. (People v. Schwartz, 28 Cal. App. 2d Supp. 775 [70 P.2d
1017].) Statutes of this kind result in a strict liability of the
manufacturer in tort to the member of the public injured. (See
cases cited in Prosser, Torts, p. 693, note 69.)
The statute may well be applicable to a bottle whose defects
cause it to explode. In any event it is significant that the statute
imposes criminal liability without fault, reflecting the public policy
of protecting the public from dangerous products placed on the
market, irrespective of negligence in their manufacture. While
the Legislature imposes criminal liability [24 Cal. 2d 464] only
with regard to food products and their containers, there are
many other sources of danger. It is to the public interest to
prevent injury to the public from any defective goods by the
imposition of civil liability generally.
The retailer, even though not equipped to test a product, is
under an absolute liability to his customer, for the implied
warranties of fitness for proposed use and merchantable quality
include a warranty of safety of the product. (Goetten v. Owl Drug
Co., 6 Cal. 2d 683 [59 P.2d 142]; Mix v. Ingersoll Candy Co., 6
Cal. 2d 674 [59 P.2d 144]; Gindraux v. Maurice Mercantile Co., 4
Cal. 2d 206 [47 P.2d 708]; Jensen v. Berris, 31 Cal. App. 2d
537 [88 P.2d 220]; Ryan v. Progressive Grocery Stores, 255 N.Y.
388 [175 N.E. 105; 74 A.L.R. 339]; Race v. Krum, 222 N.Y. 410
[118 N.E. 853, L.R.A. 1918F 1172].) This warranty is not
necessarily a contractual one (Chamberlain Co. v. Allis-
Chalmers etc. Co., 51 Cal. App. 2d 520, 524 [125 P.2d 113]; see
1 Williston on Sales, 2d ed., 197-201), for public policy
requires that the buyer be insured at the seller's expense
against injury. (Race v. Krum, supra; Ryan v. Progressive
Grocery Stores, supra; Chapman v. Roggenkamp, 182 Ill.App.
50
117, 121; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass.
90, 94 [120 N.E. 225, 5 A.L.R. 242]; see Prosser, The Implied
Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 124;
Brown, The Liability of Retail Dealers For Defective Food
Products, 23 Minn.L.Rev. 585.) The courts recognize, however,
that the retailer cannot bear the burden of this warranty, and
allow him to recoup any losses by means of the warranty of
safety attending the wholesaler's or manufacturer's sale to him.
(Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite,
Retail Responsibility and Judicial Law Making, 34 Mich.L.Rev.
494, 509.) Such a procedure, however, is needlessly circuitous
and engenders wasteful litigation. Much would be gained if the
injured person could base his action directly on the
manufacturer's warranty.
The liability of the manufacturer to an immediate buyer injured
by a defective product follows without proof of negligence from
the implied warranty of safety attending the sale. Ordinarily,
however, the immediate buyer is a dealer who does not intend to
use the product himself, and if the warranty of safety is to serve
the purpose of protecting health and safety it must give rights to
others than the dealer. In the words [24 Cal. 2d 465] of Judge
Cardozo in the McPherson case: "The dealer was indeed the
one person of whom it might be said with some approach to
certainty that by him the car would not be used. Yet, the
defendant would have us say that he was the one person whom
it was under a legal duty to protect. The law does not lead us to
so inconsequent a solution." While the defendant's negligence in
the McPherson case made it unnecessary for the court to base
liability on warranty, Judge Cardozo's reasoning recognized the
injured person as the real party in interest and effectively
disposed of the theory that the liability of the manufacturer
incurred by his warranty should apply only to the immediate
purchaser. It thus paves the way for a standard of liability that
would make the manufacturer guarantee the safety of his
product even when there is no negligence.
This court and many others have extended protection according
to such a standard to consumers of food products, taking the
view that the right of a consumer injured by unwholesome food
does not depend "upon the intricacies of the law of sales" and
that the warranty of the manufacturer to the consumer in
absence of privity of contract rests on public policy. (Klein v.
Duchess Sandwich Co., Ltd., 14 Cal. 2d 272, 282 [93 P.2d 799];
Ketterer v. Armour & Co., 200 F. 321, 322, 323 [160 C.C.A. 111,
L.R.A. 1918D 798]; Decker & Sons v. Capps, 139 Tex. 609 [164
S.W.2d 828, 142 A.L.R. 1479]; see Perkins, Unwholesome Food
As A Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life and
health inhere in other consumers' goods that are defective and
there is no reason to differentiate them from the dangers of
defective food products. (See Bohlen, Studies in Torts, Basis of
Affirmative Obligations, American Cases Upon The Liability of
Manufacturers and Vendors of Personal Property, 109, 135;
Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev.
699, 704, note 14; Prosser, Torts, p. 692.)
In the food products cases the courts have resorted to various
fictions to rationalize the extension of the manufacturer's
warranty to the consumer: that a warranty runs with the chattel;
that the cause of action of the dealer is assigned to the
consumer; that the consumer is a third party beneficiary of the
manufacturer's contract with the dealer. They have also held the
manufacturer liable on a mere fiction of negligence: [24 Cal. 2d
466] "Practically he must know it [the product] is fit, or bear the
consequences if it proves destructive." (Parks v. C. C. Yost Pie
Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C 179]; see
Jeanblanc, Manufacturer's Liability to Persons Other Than Their
Immediate Vendees, 24 Va.L.Rev. 134.) Such fictions are not
necessary to fix the manufacturer's liability under a warranty if
the warranty is severed from the contract of sale between the
dealer and the consumer and based on the law of torts (Decker
& Sons v. Capps, supra; Prosser, Torts, p. 689) as a strict
liability. (See Green v. General Petroleum Corp., 205 Cal. 328
[270 P. 952, 60 A.L.R. 475]; McGrath v. Basich Bros. Const.
Co., 7 Cal. App. 2d 573 [46 P.2d 981]; Prosser, Nuisance
Without Fault, 20 Tex.L.Rev., 399, 403; Feezer, Capacity To
Bear The Loss As A Factor In The Decision Of Certain Types of
Tort Cases, 78 U. of Pa.L.Rev. 805, 79 U. of Pa.L.Rev. 742;
51
Carpenter, The Doctrine of Green v. General Petroleum Corp., 5
So.Cal.L.Rev. 263, 271; Pound, The End of Law As Developed
In Legal Rules And Doctrines, 27 Harv.L.Rev. 195, 233.)
Warranties are not necessarily rights arising under a contract.
An action on a warranty "was, in its origin, a pure action of tort,"
and only late in the historical development of warranties was an
action in assumpsit allowed. (Ames, The History of Assumpsit, 2
Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) 970.) "And it
is still generally possible where a distinction of procedure is
observed between actions of tort and of contract to frame the
declaration for breach of warranty in tort." (Williston, loc. cit.; see
Prosser, Warranty On Merchantable Quality, 27 Minn.L.Rev. 117,
118.) On the basis of the tort character of an action on a
warranty, recovery has been allowed for wrongful death as it
could not be in an action for breach of contract. (Greco v. S. S.
Kresge Co., 277 N.Y. 26 [12 N.E.2d 577, 115 A.L.R. 1020]; see
Schlick v. New York Dugan Bros., 175 Misc. 182 [22 N.Y.S.2d
238]; Prosser, op. cit., p. 119.) As the court said in Greco v. S. S.
Kresge Co., supra, "Though the action may be brought solely for
the breach of the implied warranty, the breach is a wrongful act,
a default, and, in its essential nature, a tort." Even a seller's
express warranty can arise from a noncontractual affirmation
inducing a person to purchase the goods. (Chamberlain Co. v.
Allis-Chalmers etc. Co., 51 Cal. App. 2d 520 [125 P.2d 113].) "As
an actual agreement to contract is not essential, the
obligation [24 Cal. 2d 467] of a seller in such a case is one
imposed by law as distinguished from one voluntarily assumed.
It may be called an obligation either on a quasi-contract or
quasi-tort, because remedies appropriate to contract and also to
tort are applicable." (1 Williston on Sales, 2d ed. 197; see
Ballantine, Classification of Obligations, 15 Ill.L.Rev. 310, 325.)
As handicrafts have been replaced by mass production with its
great markets and transportation facilities, the close relationship
between the producer and consumer of a product has been
altered. Manufacturing processes, frequently valuable secrets,
are ordinarily either inaccessible to or beyond the ken of the
general public. The consumer no longer has means or skill
enough to investigate for himself the soundness of a product,
even when it is not contained in a sealed package, and his
erstwhile vigilance has been lulled by the steady efforts of
manufacturers to build up confidence by advertising and
marketing devices such as trade-marks. (See Thomas v.
Winchester, 6 N.Y. 397 [57 Am.Dec. 455]; Baxter v. Ford Motor
Co., 168 Wash. 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521];
Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S. 496],
affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler, False
and Misleading Advertising, 39 Yale L.J. 22; Rogers, Good Will,
Trade-Marks and Unfair Trading (1914) ch. VI, A Study of The
Consumer, p. 65 et seq.; Williston, Liability For Honest
Misrepresentations As Deceit, Negligence Or Warranty, 42
Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers no longer
approach products warily but accept them on faith, relying on the
reputation of the manufacturer or the trade mark. (See Max
Factor & Co. v. Kunsman, 5 Cal. 2d 446, 463 [55 P.2d 177]; Old
Dearborn etc. Co. v. Seagram- Distillers Corp., 299 U.S. 183 [57
S. Ct. 139, 81 L. Ed. 109, 106 A.L.R. 1476]; Schechter, The
Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813,
818.) Manufacturers have sought to justify that faith by
increasingly high standards of inspection and a readiness to
make good on defective products by way of replacements and
refunds. (See Bogert and Fink, Business Practices Regarding
Warranties In The Sale Of Goods, 25 Ill.L.Rev. 400.) The
manufacturer's obligation to the consumer must keep pace with
the changing relationship between them; it cannot be escaped
because the marketing of a product has become so complicated
as to require one or more [24 Cal. 2d 468] intermediaries.
Certainly there is greater reason to impose liability on the
manufacturer than on the retailer who is but a conduit of a
product that he is not himself able to test. (See Soule, Consumer
Protection, 4 Encyclopedia of The Social Sciences, 282; Feezer,
Manufacturer's Liability For Injuries Caused By His Products:
Defective Automobiles, 37 Mich.L.Rev. 1; Llewellyn, Cases And
Materials on Sales, 340 et seq.)
The manufacturer's liability should, of course, be defined in
terms of the safety of the product in normal and proper use, and
52
should not extend to injuries that cannot be traced to the product
as it reached the market.

53