G.R. No.

143819 January 29, 2002

PEOPLE OF THE PHILIPPINES, appellee,

vs.
GERRY CUENCA y MEDRANO, JACKSON CUENCA (at large), CRISANTO AGON y MAGPANTAY, and
BERNIE AGON (at large), accused,
GERRY CUENCA y MEDRANO and CRISANTO AGON y MAGPANTAY, appellants.

The testimony of a single eyewitness, if credible and positive, is sufficient to support a conviction for murder.
Truth is established by the quality, not necessarily by the quantity, of the evidence.

The Case

Gerry Cuenca and Crisanto Agon1 appeal the February 7, 2000 Decision2 of the Regional Trial Court (RTC) of
Lipa City (Branch 12) in Criminal Case No. 0132-98, which found them guilty of murder beyond reasonable
doubt.

The RTC disposed of the case as follows:

"WHEREFORE, the Court finds the accused GERRY CUENCA and CRISANTO AGON, guilty beyond
reasonable doubt, both as principals by direct participation for having conspired and confederated with one
another in the commission of the crime of [m]urder, as alleged in the Information dated March 27, 1998, and
defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act 7659 and
sentences each of them to suffer the penalty of RECLUSION PERPETUA, to pay the heirs of Wilfredo Castillo
the sum of 50,000.00 as indemnity for his death, the sum of 38,800.00, as actual damages, the sum of
4,800,000.00 for loss of earning capacity, the sum of 20,000.00, as moral damages and to pay their
proportionate share of the costs.

"The period during which both accused are under preventive imprisonment shall be deducted from their
sentence.

"Finally, let also warrants of arrest be issued against the accused Jackson Cuenca and Bernardo 'Bernie' Agon
for their immediate apprehension."3

On March 17, 1998, Lipa City Assistant City Prosecutor Mario G. Mayuga filed the Information charging
appellants and their co-accused as follows:

"That on or about the 14th day of February, 1998 at about 9:30 o'clock in the evening, at Barangay Tambo, Lipa
City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, then armed with
bladed/pointed and hard instruments, conspiring and confederating together, acting in common accord and
mutually aiding one another, with intent to kill, with treachery and grave abuse of superior strength and taking
advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack, assault, beat and stab with
the use of said bladed/pointed and hard instruments, suddenly and without warning, one Wilfredo Castillo,
thereby inflicting upon the latter stab wounds, which directly caused his death."4

When arraigned on April 27, 1998, appellants -- with the assistance of their lawyers -- entered a plea of not
guilty.5Because their co-accused were at large, trial on the merits proceeded only as against them.

The Facts

Version of the Prosecution

In its Brief,6 the Office of the Solicitor General summarized the prosecution's version of the facts as follows:
1
"On February 14, 1998, around 9:30 in the evening, while lying down with his wife and family in his house at
Module Subdivision, Barangay Tambo, Lipa City, Batangas, Marcial Morillo7 heard a commotion taking place
outside his house. Dogs were barking loudly, so he decided to go out of the house to see what was happening
outside. He then saw a man being mauled and beaten by four (4) persons. Upon seeing the incident, he hid
himself behind a PLDT telephone post. From a distance of about ten (10) meters, he recognized the four (4)
assailants as Gerry Cuenca, Jackson Cuenca, Crisanto Agon and Bernie Agon, while the person being mauled
was Wilfredo 'Edok' Castillo. Marcial knew the four assailants and the victim for eight (8) years since they were
all neighbors, Gerry and Jackson being brothers and Crisanto and Bernie being father and son. He witnessed
Crisanto hold Edok's left hand while Bernie held his right hand. Gerry was at Edok's front and to the right while
Jackson was at Edok's front and to the left and both were beating Edok continuously. Gerry and Jackson each
used a piece of wood in hitting Edok several times on the face, head, chest and other parts of his body. Edok
tried to struggle but his efforts proved futile. Edok then gave in, stooped down and eventually lost consciousness
(Lumugmok na po siya). The four (4) assailants then carried Edok's body with one holding on to his right arm,
the other one x x x his left arm and the other two each held the right and left leg[s] of Edok towards the direction
of Calabarzon Highway.

"Thereafter, Marcial returned to his house but did not tell his wife about the incident because she was 'nerbiyosa'.
He did not want the members of his family to get involved in the incident because he feared for their safety. The
mauling incident lasted approximately twenty (20) minutes. The place where the incident happened was
illuminated by the light coming from the moon and the electric bulb at the electric post which was at the top of
the roof of a house near the place of the incident.

"The following morning, February 15, 1998, Marcial met Feliciano Castillo, Edok's brother, who told him that they
were looking for Edok. Marcial did not mention to Feliciano that he had witnessed the mauling of Edok because
he was afraid that he might be implicated and involved in the incident.

"On February 15, 1998, around 2:30 in the afternoon, a neighbor named Silo passed by Marcial's house and told
him that they were looking for Edok's body. Marcial joined in the search in the forest for about one hour and then
he went home.

"About 4 o'clock in the afternoon of February 15, 1998, Feliciano dropped by the house of Marcial and said that
Edok's body had been found and borrowed Marcial's flashlight in order to help in the recovery of Edok's body
which was found inside a well in the forest. The body was retrieved from the well which was about fifteen (15)
meters deep. There were blood stains around the well. Coconut trees surrounded the area. The body was
recovered between Masagana Subdivision and Adelina Subdivision, which was a forested area and about one-
half (1/2) kilometer from where the mauling incident took place.

"Around 4:30 in the afternoon of February 15, 1998, Feliciano reported to the Desk Officer, SPO2 Alberto Libao
of the Lipa Police Satation, that the body of his brother, Wilfredo Castillo, had been found in the forested area in
Barangay Tambo. Thereafter, Police Inspector Romeo Mitra, PO2 Enrico Tapalla, SPO4 Renaldo Saludo and
SPO3 Pablo de Luna were dispatched to the crime scene to investigate the incident. Feliciano went with them.
When Edok's body was retrieved, SPO4 Saludo noticed the presence of stab wounds, blows and hematomas
on his body. The cadaver was then taken to Funeraria San Sebastian at Balagbag, Lipa City.

"About 7:30 in the evening of February 15, 1998, Dr. Corazon Sabile, Health Officer of Lipa City, conducted an
autopsy on Edok's body. The physical examination yielded the following results: there were nine (9) injuries on
the head, two (2) of which were stab wounds, one stab wound on the right frontal area of the right ear which
reached the skull and the second stab wound also at his right ear; one (1) lacerated gaping wound on the head;
there were several contusions and hematoma on both eyes which could have been caused by mauling, and
hematomas on the middle mandibular area and the lateral mandibular area (chin) which could have been caused
by mauling or the dumping of the cadaver in to the well; there are also linear abrasions on the right lateral neck
area that could have been caused by forcible contact; there were nine (9) wounds on the body, that is, four (4)
stab wounds and five (5) abrasions; the first stab wound was on the third intercostal space midelavicular area,
the second on the fifth intercostal space, right midelavicular area, the third on the 8 th intercostal space
2
midelavicular area, and the fourth [was] on the right lumbar area; the said wounds were almost of the same
depth, that is 5 cms; all of the said wounds could have been caused by a sharp pointed instrument; she also
found five (5) abrasion on the body, i.e., in the left midscapular area, left infrascapular area, on the vertebral line,
on the right midscapular area and on the vertebral line; that the abrasions are called 'gasgas' and could have
been caused by forcible contact; she also found in the extrem[i]ties of the cadaver two (2) stab wounds on the
right anterior thigh 4 to 5 cms. deep; she also found three (3) abrasions on the right forearm, left posterior arm
and left posterior hand which could have been caused by forcible contact. The internal examination on the
victim's body revealed that 200 ml. of blood were found in the fleural cavity which could have come from the
perforations of the right ventricle of the heart; the liver and upper lobe of the right lung were perforated; there
were complete fractures on the 2nd, 3rd, 4th, 5th, 6th, 7th of both ribs which alone were sufficient to cause death.
The mauling was aggravated by the dumping of the Edok's body in the well. Considering the nature and number
of injuries Edok sustained, no medical attention and assistance could have saved his life. The cause of Edok's
death was Hypovolemia secondary to multiple stab wounds.

"On February 16, 1998, Marcial Morillo told Ruben Castillo about the mauling incident which (Morillo) had
witnessed on the night of February 14, 1998.

"Bothered by his conscience, on February 17, 1998, Morillo went to the Lipa Police Station to report the
incident."8 (Citations omitted)

Version of the Defense

Appellants gave the following narration of the facts:9

"The defense maintained that in the evening of February 14, 1998 accused Jackson Cuenca and Bernie Agon
together with three [V]isayan [C]alabarzon workers identified as Obet, Nognog and Ruel were in the house of
Yolanda Cuenca in the evening of February 14, 1998 at Brgy. Tambo, Lipa City about one kilometer away from
the place of Marcial Morillo, the alleged eyewitness, in whose place according to Marcial Morillo the crime was
committed. While these persons were in said house of Yolanda Cuenca, they heard a voice calling for Jackson
who was identified as Wilfredo Castillo. Jackson Cuenca came out [of] the house and asked Wilfredo Castillo
what was the problem[;] however, Wilfredo Castillo immediately hacked him who was wounded at the right side
of his back. Witness Yolanda Cuenca brought him inside her house and attended to his wound. While bringing
him inside the house, Jackson was struggling to be free, [and] the three Visayan [C]alabarzon workers visitors
went outside and thereafter a commotion took place. During the commotion, Yolanda Cuenca heard somebody
[utter] the words 'sobra-sobra na ang ginagawa mo sa mga tao dito'. The following day, February 15, 1998, two
of the three Visayan Calabarzon Workers namely Obet and Nognog arrived at the house of Yolanda Cuenca
and told her that she [would] say that she saw and heard nothing about the commotion.

"Accused Gerry Cuenca and Crisanto Agon were not in the house of Yolanda Cuenca where the commotion
took place [o]n the evening of February 14, 1998 and they were not also near the house of Marcial Morillo where
the crime took place allegedly [o]n the evening of February 14, 1998. On that time and date, they were at the
house of Roger Dimaculangan at Normanz Village, Tambo, Lipa City helping in the preparation of food for the
baptismal party on February 15, 1998. Other than accused-appellants Andy Obille, Benjamin Anterola and Romy
Anterola and other people were there. Accused-appellants vehemently denied that they were the ones who killed
Wilfredo Castillo alias 'Edok' in the evening of February 14, 1998."10

The Trial Court's Ruling

The RTC convicted appellants because the lone prosecution witness, Marcial Morcillo, was credible. It said: "the
Court believes and gives weight to the candid, vivid and detailed account of the incident and positive identification
of all the accused by Marcial Morcillo, not only because it is clear, straight-forward and devoid of any signs of
artificiality, but also because it vibrates with truth and sincerity."11

3
The court a quo held that conspiracy attended the killing:

"In this case, Crisanto and Bernie Agon were each holding the hands of Wilfredo Castillo, while the brothers
Gerry and Jackson Cuenca helped each other in beating him with a piece of [wood] about one (1) meter long x
x x. After Castillo slumped and lost consciousness, the four (4) accused helped each other in carrying Wilfredo
Castillo towards the Calabarzon Highway going to the direction of Batangas City. Verily, at the precise moment
of the execution of the crime, the accused acted in concert to accomplish a common objective to take the life of
Wilfredo Castillo. The fact that Marcial Morillo did not witness the actual stabbing and killing of Wilfredo Castillo
is of no moment."12

It disbelieved the defenses of denial and alibi.

Hence, this appeal.13

Issues

In their Brief, appellants fault the trial court with the following alleged errors:

"1. The honorable trial court erred in giving weight to the testimony of the alleged lone eyewitness, Marcial
Mor[c]illo.

"2. The honorable trial court erred in not considering that the victim died of multiple stab wounds and not due to
injuries caused by a piece of wood.

"3. The honorable trial court erred in not considering the defense of alibi of accused-appellants in the appreciation
of the whole evidence presented by the prosecution and defense."14

This Court's Ruling

After reviewing the records of this case, we find no cogent basis to reverse appellants' conviction. We however
modify the award of civil liabilities.

First Issue:
Credibility of Lone Prosecution Witness

Appellants assail the credibility of Marcial Morcillo, the lone prosecution witness. They contend that the trial court
erred in giving full credence to Morcillo's testimony, because it was not "in accordance with common experience
and observation of mankind."15 We disagree.

We carefully reviewed the testimonies of both the prosecution and the defense witnesses, as well as the other
pieces of evidence on record. We are convinced that the trial court did not err in giving full faith and credence to
Morcillo's testimony, which we reproduce in part as follows:

"Q On February 14, 1998, around 9:30 o'clock in the evening, do you remember where you were?

A I was inside my house sir.

Q Where was your house on that date, February 14, 1998, 9:30 o'clock in the evening?

A At Module Subdivision, Tambo, Lipa City sir.

4
Q What were you doing around that time, 9:30 o'clock in the evening of February 14, 1998 inside your
house in Module Subdivision, Tambo, Lipa City?

A We were already lying down sir.

Q You said we, who were with you in your house?

A My wife and my family sir.

Q While you were then already lying down on that date, February 14, 1998 around 9:30 o'clock in the
evening, do you remember x x x any unusual incident that transpired?

A Yes sir.

Q What was that unusual incident that transpired?

A There was a commotion of people sir.

Q How did you come to know that there was a commotion of people?

A My dog and the dogs of my neighbors were barking sir.

Q What did you do when you heard this commotion of people and barking of the dog and the dogs of your
neighbors?

A I went out of the house and looked for [what] the commotion was all about[,] sir.

Q What did you see when you looked [for] where this commotion [was] coming [from] or what was causing
this commotion?

A I saw a person being beaten by four (4) persons sir.

Q Were these four (4) persons or in what place in relation to your house where these four (4) persons
beating one person?

A In the street sir.

Q How far is that place from your own house?

A About ten (10) meters sir.

Q Where were you when you saw four (4) persons beating one (1) person?

A I was hiding behind [a] PLDT Telephone post sir.

Q From the place where you were hiding behind a PLDT Telephone Post, how far [away from you] were
these four (4) persons who were beating another person x x x?

A 10 meters sir.

Q Were you able to recognize these four (4) persons who were beating another person?

5
A Yes, sir.

Q Who were these four (4) persons whom you saw were beating another person.

A Crisanto Agon, Bernie Agon, Jackson Cuenca and Gerry Cuenca sir.

Q Of these (4) persons whom you named Gerry Cuenca and Crisanto Agon were the persons whom you
pointed [to] a while ago [among them]?

A Yes sir.

Q Were you able to recognize the person whom these four (4) accused were beating?

A Yes, sir. I recognized him.

Q Who was that person who was being beaten by these four (4) accused, Gerry Cuenca, Jackson Cuenca,
Crisanto Agon and Bernie Agon?

A Edok Castillo sir.

Q Do you know the complete name of this Edok Castillo?

A I quite remember, it is Alfredo Castillo, sir.

Q And how were Gerry Cuenca, Jackson Cuenca, Crisanto Agon and Bernie Agon beating this Edok
Castillo?

A The father and son were holding Edok Castillo and the brothers were beating him sir.

Q When you said that the father and son were holding Edok Castillo while the brothers were beating him,
who are you referring to when you said the father and son?

A Crisanto Agon and Bernie Agon sir.

Q How was Crisanto Agon holding Edok Castillo while the brothers were beating Edok Castillo?

A The father and son were holding [both hands of] Edok Castillo.

Q What hand was Crisanto Agon holding?

A Left hand sir.

Q How about Bernie Agon, what hand of Edok Castillo was he holding?

A The right hand sir.

Q How about Gerry Cuenca? Where was he positioned in relation to Edok Castillo when he was beating
Edok?

A Right front portion of Edok Castillo sir.

6
Q How about Jackson Cuenca, where was he positioned in relation to Edok Castillo while he was beating
Edok Castillo?

A He was standing towards the left front of Edok Castillo sir.

xxx xxx xxx

Q Aside from stooping down, what else was Edok Castillo doing while he was being beaten by Gerry
Cuenca and Jackson Cuena and while Bernie Agon and Crisanto Agon were holding his two hands?

A He lost consciousness sir.

Q Why do say that he lost consciousness?

A 'Lumugmok na po siya'.

Q But before Edok Castillo actually fe[l]l or 'lumugmok' what was he doing while he was being beaten up?

A He could not do anything anymore sir.

Q After Wilfredo Castillo [fell] or lumugmok, what did Gerry Cuenca, Jackson Cuenca, Crisanto Agon and
Bernie Agon do to him if they did anything more?

A [T]hey carried him towards Calabarzon, sir.

Q By the way, how many times did Gerry Cuenca and Jackson Cuenca hit Edok Castillo?

A I could not remember, but he was hit several times, sir.

Q In what part or parts of the body of Edok Castillo was he hit by th[o]se beating [him up], if he was ever
hit?

xxx xxx xxx

Witness pointing his face, to his head, to his chest and to his right face below the eye.

Q You said that after Gerry Cuenca and Jackson Cuenca [beat] up Edok Castillo while he was being held
[by] his two (2) hands by Crisanto and Bernie Agon, he fell down or 'lumugmok' [and] he was carried to
Calabarzon[;] what do you mean by this Calabarzon?

A The highway going to Batangas sir.

Q How did the four (4) carry Edok Castillo towards the Calabarzo[n] which is the road according to you
going to Batangas City?

A They help[ed] each other in carrying him sir.

Q How did they carry actually this Edok Castillo?

A The two (2) were carrying him by [both his] hands[,] one [holding] on each hand and the other two (2)
were holding on [both his] feet sir.16

7
On cross-examination Morcillo consistently maintained, despite intense grilling and repeated attempts of the
defense counsel to discredit him, that appellants were the ones who had mauled the victim. True, the defense
counsel tried to impeach his credibility during the cross-examination by leading him through an intricate and
annoying maze of questions that resulted in minor inconsistencies in his testimonial declarations. Nevertheless,
Morcillo remained steadfast in his narration of what he had witnessed on the night of February 14, 1998.

So long as the witnesses' testimonies agree on substantial matters, inconsequential inconsistencies and
contradictions dilute neither their credibility nor the verity of their testimonies.17 In the instant case, the
inconsistencies cited by appellants are insignificant and immaterial to the essential fact testified to -- the killing
of the victim.18

As a rule, this Court will not disturb the factual findings of the trial court, because it had a better opportunity to
observe the demeanor and conduct of the witnesses while they were testifying. Indeed, its assessment of the
witnesses and their credibility is entitled to great weight and is even conclusive and binding, if not tainted with
arbitrariness or oversight of some fact or circumstance of significance and value.19

This Court has ruled in a number of cases20 that the testimony of a single witness, if credible and positive, is
sufficient for conviction because truth is established not by the quantity, but by the quality of the evidence.

Second Issue:
Cause of the Victim's Death

Appellants also contend that Morcillo did not see how the victim was stabbed. All he said was that he saw them
beat up the victim with a piece of wood. Thus, they said that the trial court erred in concluding that the deceased
had succumbed, not to multiple stab wounds, but to injuries caused by a piece of wood.21

In the absence of direct evidence, appellants may be convicted on the basis of circumstantial evidence. The
latter is defined as "that which indirectly proves a fact in issue through an inference which the factfinder draws
from the evidence established. Resort thereto is essential when the lack of direct testimony would result in setting
a felon free."22

Circumstantial evidence suffices to convict if the following requisites concur: (1) more than one circumstance is
present, (2) the facts from which the inferences are derived are proven, and (3) the combination of all the
circumstances produces a conviction beyond reasonable doubt. The totality of the evidence must constitute an
unbroken chain showing beyond reasonable doubt the guilt of the accused, to the exclusion of all others.23

To require direct eyewitness testimony when circumstantial evidence is sufficiently established would, in many
cases, expose society to felons who would be unreasonably set free.24

In the present case, the postmortem examination shows that the victim sustained multiple lacerations and
abrasions plus eight stab wounds.25 The following pieces of circumstantial evidence show beyond reasonable
doubt that appellants are responsible for the killing:

First, Morcillo positively identified appellants as members of the group that had ganged up on the victim and
mauled him near his residence around 9:30 in the evening on February 14, 1998.

Second, the witness saw appellants acting in unison -- beating up then carrying towards the Calabarzon
Highway -- the unconscious body of the victim.

Third, the victim's corpse was recovered the next day inside a well, which was less than a kilometer away from
the place of the mauling.

8
 Fourth, the victim suffered from multiple stab wounds, abrasions, contusions and lacerations, all of which
indicated that he had been heavily beaten up. This was consistent with the narration of Morcillo on how he saw
appellants maul the victim less than 24 hours before the dead body was discovered.

Fifth, appellants were the last persons seen with the victim before he died.

Sixth, the other accused, Jackson Cuenca (brother of Appellant Gerry Cuenca) and Bernie Agon (son of
Appellant Crisanto Agon) fled from their residence in Lipa City, and they have continuously evaded arrest up
to the present.

Finally, Morcillo had no ill motive to testify against appellants.

From the foregoing circumstances, it is undisputed that appellants were physically present at the locus
criminis and its immediate vicinity, and that an eyewitness positively identified them to be members of the group
that had mauled and removed the victim from the crime scene prior to the discovery of his corpse.

Third Issue:
Defense of Alibi

Well-settled is the rule that alibi is the weakest of all defenses, because it is easy to concoct and difficult to
disprove. For alibi to prosper, it is not enough for the accused to prove that they were somewhere else when the
crime was committed; they must likewise demonstrate that it was physically impossible for them to have been at
the scene of the crime at the time.26

In the case before us, appellants claim that at the time the crime happened, they were at the residence of Roger
Dimaculangan, which was located also at Barangay Tambo, Lipa City. Dismissing this claim, the RTC said:

"Alibi and denial are inherently weak and easily contrived. This is why the accused must prove with clear and
convincing evidence that it was physically impossible for him to have been present at the place and time the
felony was committed. This the accused failed to do. The distance between the house of Roger Dimaculangan,
where both accused claimed to be at the time the f[e]lony was committed and the locus criminis is just a few
kilometers away. It can be travelled in a few minutes by bicycle. Thus, it was not impossible for Gerry Cuenca
and Crisanto Agon to leave and, after killing Wilfredo Castillo, return to the house of Dimaculangan without
anybody noticing their absence. In any event, alibi and denial cannot overcome the categorical and credible
testimony of Marcial Morcillo identifying both accused as among those whom he saw helping each other in
holding and beating Wilfredo Castillo and thereafter carrying him towards [C]alabarzon Highway going to the
direction of Batangas City. Basic is the rule that positive identification prevails over denial and alibi."27

Thus, it was not physically impossible for appellants to have been at the scene of the crime on the evening of
February 14, 1998, notwithstanding their friends' testimonies that they were also at the Dimaculangan residence.

Conspiracy and Treachery

The trial court did not err in finding appellants guilty of murder because treachery, which was alleged in the
Information, had attended the killing.

On this point, the trial court aptly explained:

"Article 14 (16) of the Revised Penal Code provides that there is treachery when the offender commits any of
the crimes against persons, employing means, methods o[r] forms in the execution thereof which tend directly
and specifically to insure its execution without risk to himself arising from the defense which the offended party
might make. In the instant case, Crisanto and Bernie Agon were holding both hands of Wilfredo Castillo, while

9
Gerry and Jackson Cuenca were beating him with a piece of wood on the different parts of his body. Wilfredo
Castillo was unarmed and defenseless. Hence, treachery was present."28

Treachery is present when the following conditions are present: (1) the means of execution employed gives the
victims no opportunity to defend themselves or to retaliate, and (2) the means of execution are deliberately or
consciously adopted. In this case, the prosecution succeeded in showing that appellants, together with their co-
accused (who are still at large), helped each other in ensuring the execution of their nefarious intention to beat
up and kill the victim who was unarmed and with no opportunity to defend himself.

The prosecution was likewise able to show that there was conspiracy. Conspiracy exists when two or more
persons come to an agreement and decide on the commission of a felony.29 It is not necessary that there be
direct proof that the co-conspirators had any prior agreement to commit the crime; it is sufficient that they acted
in concert pursuant to the same objective.30

Despite affirming appellants' conviction, we nonetheless modify the monetary awards.

The award of 50,000 as indemnity ex delicto for the loss of the victim's life is in accord with prevailing
jurisprudence.31 Likewise, the award of 20,000 as moral damages is reasonable. However, the actual damages
granted is improper and should be reduced from 38,800 to 7,300 considering that only the latter amount,
representing burial expenses, was duly supported by receipts. The unsubstantiated balance of 31,500 should
be deleted.32

We also find the court a quo's award of 4,800,000 for loss of earning capacity to be improper. True, in People
v. Verde,33 we granted an award for the loss of earning capacity to the heirs of the deceased despite the absence
of documentary evidence to substantiate such claim. We deemed the testimony of the victim's wife sufficient to
establish the basis for the grant. However, the new ruling in People v. Panabang34 modifies this principle and
now precludes an award for loss of earning capacity without adequate proof. The bare testimony of the brother
of the deceased Felicisimo Castillo that, at the time of his death, Wilfredo Castillo was earning 250.00 daily as
carpenter35 is not sufficient proof.

In Panabang, we held that the indemnification for loss of earning capacity must be duly proven. Justice Jose C.
Vitug, expressing the current view of the Court, wrote:

"Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven.
A self-serving statement, being unreliable, is not enough. The father of the victim has testified on the latter's
monthly income of 12,000.00. But for lost income to be recovered, there must likewise be an unbiased proof of
the deceased's average, not just gross, income. An award for lost of earning capacity refers to the net income
of the deceased, i.e., his total income net of expenses. x x x."36 (Emphasis in the original, citations omitted)

WHEREFORE, the assailed Decision is AFFIRMED but the actual damages awarded by the RTC
is REDUCED from 35,850 to 7,300 while the grant of 4,800,000 for loss of earning capacity is DELETED.

SO ORDERED.

G.R. No. L-11037 December 29, 1960

EDGARDO CARIAGA, ET AL., plaintiffs-appellants,

vs.
LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
MANILA RAILROAD COMPANY, defendant-appellee.

At about 1:00 p.m. on June 18, 1952, Bus No. 133 of the Laguna Tayabas Bus
Co. hereinafter referred to as the LTB driven by Alfredo Moncada, left its station at Azcarraga St., Manila,
10
for Lilio, Laguna, with Edgardo Cariaga, a fourth-year medical student of the University of Santo Tomas, as one
of its passengers. At about 3:00 p.m., as the bus reached that part of the poblacion of Bay, Laguna, where the
national highway crossed a railroad track, it bumped against the engine of a train then passing by with such
terrific force that the first six wheels of the latter were derailed, the engine and the front part of the body of the
bus was wrecked, the driver of the bus died instantly, while many of its passengers, Edgardo among them, were
severely injured. Edgardo was first confined at the San Pablo City Hospital from 5:00 p.m., June 18, 1952, to
8:25 a.m., June 20 of the same year when he was taken to the De los Santos Clinic, Quezon City. He left that
clinic on October 14 to be transferred to the University of Santo Tomas Hospital where he stayed up to November
15. On this last date he was taken back to the De los Santos Clinic where he stayed until January 15, 1953. He
was unconscious during the first 35 days after the accident; at the De los Santos Clinic Dr. Gustilo removed the
fractured bones which lacerated the right frontal lobe of his brain and at the University of Santo Tomas Hospital
Dr. Gustilo performed another operation to cover a big hole on the right frontal part of the head with a tantalum
plate.

The LTB paid the sum of P16,964.45 for all the hospital, medical and miscellaneous expenses incurred from
June 18, 1952 to April, 1953. From January 15, 1953 up to April of the same year Edgardo stayed in a private
house in Quezon, City, the LTB having agreed to give him a subsistence allowance of P10.00 daily during his
convalescence, having spent in this connection the total sum of P775.30 in addition to the amount already
referred to.

On April 24, 1953 the present action was filed to recover for Edgardo Cariaga, from the LTB and the MRR Co.,
and total sum of P312,000.00 as actual, compensatory, moral and exemplary damages, and for his parents, the
sum of P18,00.00 in the same concepts. The LTB disclaimed liability claiming that the accident was due to the
negligence of its co-defendant, the Manila Railroad Company, for not providing a crossing bar at the point where
the national highway crossed the railway track, and for this reason filed the corresponding cross-claim against
the latter company to recover the total sum of P18,194.75 representing the expenses paid to Edgardo Cariaga.
The Manila Railroad Company, in turn, denied liability upon the complaint and cross-claim alleging that it was
the reckless negligence of the bus driver that caused the accident.

The lower court held that it was the negligence of the bus driver that caused the accident and, as a result,
rendered judgment sentencing the LTB to pay Edgardo Cariaga the sum of P10,490.00 as compensatory
damages, with interest at the legal rate from the filing of the complaint, and dismissing the cross-claim against
the Manila Railroad Company. From this decision the Cariagas and the LTB appealed.

The Cariagas claim that the trial court erred: in awarding only P10,490.00 as compensatory damages to Edgardo;
in not awarding them actual and moral damages, and in not sentencing appellant LTB to pay attorney's fees.

On the other hand, the LTB's principal contention in this appeal is that the trial court should have held that the
collision was due to the fault of both the locomotive driver and the bus driver and erred, as a consequence, in
not holding the Manila Railroad Company liable upon the cross-claim filed against it.

We shall first dispose of the appeal of the bus company. Its first contention is that the driver of the train
locomotive, like the bus driver, violated the law, first, in sounding the whistle only when the collision was about
to take place instead of at a distance at least 300 meters from the crossing, and second, in not ringing the
locomotive bell at all. Both contentions are without merits.

After considering the evidence presented by both parties the lower court expressly found:

. . . While the train was approximately 300 meters from the crossing, the engineer sounded two long and two
short whistles and upon reaching a point about 100 meters from the highway, he sounded a long whistle which
lasted up to the time the train was about to cross it. The bus proceeded on its way without slackening its speed
and it bumped against the train engine, causing the first six wheels of the latter to be derailed.

11
xxx xxx xxx

. . . that the train whistle had been sounded several times before it reached the crossing. All witnesses for the
plaintiffs and the defendants are uniform in stating that they heard the train whistle sometime before the impact
and considering that some of them were in the bus at the time, the driver thereof must have heard it because he
was seated on the left front part of the bus and it was his duty and concern to observe such fact in connection
with the safe operation of the vehicle. The other L.T.B. bus which arrived ahead at the crossing, heeded the
warning by stopping and allowing the train to pass and so nothing happened to said vehicle. On the other hand,
the driver of the bus No. 133 totally ignored the whistle and noise produced by the approaching train and instead
he tried to make the bus pass the crossing before the train by not stopping a few meters from the railway track
and in proceeding ahead.

The above findings of the lower court are predicated mainly upon the testimony of Gregorio Ilusondo, a witness
for the Manila Railroad Company. Notwithstanding the efforts exerted by the LTB to assail his credibility, we do
not find in the record any fact or circumstance sufficient to discredit his testimony. We have, therefore, no other
alternative but to accept the findings of the trial court to the effect, firstly, that the whistle of locomotive was
sounded four times two long and two short "as the train was approximately 300 meters from the crossing";
secondly, that another LTB bus which arrived at the crossing ahead of the one where Edgardo Cariaga was a
passenger, paid heed to the warning and stopped before the "crossing", while as the LTB itself now admits
(Brief p. 5) the driver of the bus in question totally disregarded the warning.

But to charge the MRR Co. with contributory negligence, the LTB claims that the engineer of the locomotive
failed to ring the bell altogether, in violation of the section 91 of Article 1459, incorporated in the charter of the
said MRR Co. This contention as is obvious is the very foundation of the cross-claim interposed by the
LTB against its
co-defendant. The former, therefore, had the burden of proving it affirmatively because a violation of law is never
presumed. The record discloses that this burden has not been satisfactorily discharged.

The Cariagas, as appellants, claim that the award of P10,000.00 compensatory damages to Eduardo is
inadequate considering the nature and the after effects of the physical injuries suffered by him. After a careful
consideration of the evidence on this point we find their contentions to be well-founded.

From the deposition of Dr. Romeo Gustilo, a neurosurgeon, it appears that, as a result of the injuries suffered by
Edgardo, his right forehead was fractured necessitating the removal of practically all of the right frontal lobe of
his brain. From the testimony of Dr. Jose A. Fernandez, a psychiatrist, it may be gathered that, because of the
physical injuries suffered by Edgardo, his mentality has been so reduced that he can no longer finish his studies
as a medical student; that he has become completely misfit for any kind of work; that he can hardly walk around
without someone helping him, and has to use a brace on his left leg and feet.

Upon the whole evidence on the matter, the lower court found that the removal of the right frontal lobe of the
brain of Edgardo reduced his intelligence by about 50%; that due to the replacement of the right frontal bone of
his head with a tantalum plate Edgardo has to lead a quite and retired life because "if the tantalum plate is
pressed in or dented it would cause his death."

The impression one gathers from this evidence is that, as a result of the physical injuries suffered by Edgardo
Cariaga, he is now in a helpless condition, virtually an invalid, both physically and mentally.

Appellant LTB admits that under Art. 2201 of the Civil Code the damages for which the obligor, guilty of a breach
of contract but who acted in good faith, is liable shall be those that are the natural and probable consequences
of the breach and which the parties had forseen or could have reasonably forseen at the time the obligation was
constituted, provided such damages, according to Art. 2199 of the same Code, have been duly proved. Upon
this premise it claims that only the actual damages suffered by Edgardo Cariaga consisting of medical, hospital
and other expenses in the total sum of P17,719.75 are within this category. We are of the opinion, however, that

12
the income which Edgardo Cariaga could earn if he should finish the medical course and pass the corresponding
board examinations must be deemed to be within the same category because they could have reasonably been
foreseen by the parties at the time he boarded the bus No. 133 owned and operated by the LTB. At that time he
was already a fourth-year student in medicine in a reputable university. While his scholastic may not be first rate
(Exhibits 4, 4-A to 4-C), it is, nevertheless, sufficient to justify the assumption that he could have passed the
board test in due time. As regards the income that he could possibly earn as a medical practitioner, it appears
that, according to Dr. Amado Doria, a witness for the LTB, the amount of P300.00 could easily be expected as
the minimum monthly income of Edgardo had he finished his studies.

Upon consideration of all the facts mentioned heretofore this Court is of the opinion, and so holds, that the
compensatory damages awarded to Edgardo Cariaga should be increased to P25,000.00.

Edgardo Cariaga's claim for moral damages and attorney's fees was denied by the trial court, the pertinent
portion of its decision reading as follows:

Plaintiffs' claim for moral damages cannot also be granted. Article 2219 of the Civil Code enumerates the
instances when moral damages may be covered and the case under consideration does not fall under any one
of them. The present action cannot come under paragraph 2 of said article because it is not one of the quasi-
delict and cannot be considered as such because of the pre-existing contractual relation between the Laguna
Tayabas Bus Company and Edgardo Cariaga. Neither could defendant Laguna Tayabas Bus Company be held
liable to pay moral damages to Edgardo Cariaga under Article 2220 of the Civil Code on account of breach of its
contract of carriage because said defendant did not act fraudulently or in bad faith in connection therewith.
Defendant Laguna Tayabas Bus Company had exercised due diligence in the selection and supervision of its
employees like the drivers of its buses in connection with the discharge of their duties and so it must be
considered an obligor in good faith.

The plaintiff Edgardo Cariaga is also not entitled to recover for attorney's fees, because this case does not fall
under any of the instances enumerated in Article 2208 of the Civil Code.

We agree with the trial court and, to the reason given above, we add those given by this Court in Cachero vs.
Manila Yellow Taxicab Co., Inc.(101 Phil., 523, 530, 533):

A mere perusal of plaintiff's complaint will show that this action against the defendant is predicated on an alleged
breach of contract of carriage, i.e., the failure of the defendants to bring him "safely and without mishaps" to his
destination, and it is to be noted that the chauffeur of defendant's taxicab that plaintiff used when he received
the injuries involved herein, Gregorio Mira, has not even made a party defendant to this case.

Considering, therefore, the nature of plaintiff's action in this case, is he entitled to compensation for moral
damages? Article 2219 of the Civil Code says the following:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

13
(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

xxx xxx xxx

Of course enumerated in the just quoted Article 2219 only the first two may have any bearing on the case at bar.
We find, however, with regard to the first that the defendant herein has not committed in connection with this
case any "criminal offense resulting in physical injuries". The one that committed the offense against the plaintiff
is Gregorio Mira, and that is why he has been already prosecuted and punished therefor. Altho (a) owners and
managers of an establishment and enterprise are responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the occasion of their functions; (b) employers are
likewise liable for damages caused by their employees and household helpers acting within the scope of their
assigned task (Article 218 of the Civil Code); and (c) employers and corporations engaged in any kind of industry
are subsidiary civilly liable for felonies committed by their employees in the discharge of their duties (Art. 103,
Revised Penal Code), plaintiff herein does not maintain this action under the provisions of any of the articles of
the codes just mentioned and against all the persons who might be liable for the damages caused, but as a
result of an admitted breach of contract of carriage and against the defendant employer alone. We, therefore,
hold that the case at bar does not come within the exception of paragraph 1, Article 2219 of the Civil Code.

The present complaint is not based either on a "quasi-delict causing physical injuries" (Art. 2219, par. 2 of the
Civil Code). From the report of the Code Commission on the new Civil Code. We copy the following:

A question of nomenclature confronted the Commission. After a careful deliberation, it was agreed to use the
term "quasi-delict" for those obligations which do not arise from law, contracts, quasi-contracts, or criminal
offenses. They are known in Spanish legal treaties as "culpa aquiliana", "culpa-extra-contractual" or "cuasi-
delitos". The phrase "culpa-extra-contractual" or its translation "extra-contractual-fault" was eliminated because
it did not exclude quasi-contractual or penal obligations. "Aquilian fault" might have been selected, but it was
thought inadvisable to refer to so ancient a law as the "Lex Aquilia". So "quasi-delict" was chosen, which more
nearly corresponds to the Roman Law classification of the obligations and is in harmony with the nature of this
kind of liability.

The Commission also thought of the possibility of adopting the word "tort" from Anglo-American law. But "tort"
under that system is much broader than the Spanish-Philippine concept of obligations arising from non-
contractual negligence. "Tort" in Anglo-American jurisprudence includes not only negligence, but also intentional
criminal act, such as assault and battery, false imprisonment and deceit. In the general plan of the Philippine
legal system, intentional and malicious acts are governed by the Penal Code, although certain exceptions are
made in the Project. (Report of the Code Commission, pp. 161-162).

In the case of Cangco, vs. Manila Railroad, 38 Phil. 768, We established the distinction between obligation
derived from negligence and obligation as a result of a breach of contract. Thus, we said:

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that
the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that
contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability
is direct and immediate, differing essentially in the legal viewpoint from the presumptive responsibility for the
negligence of its servants, imposed by Article 1903 of the Civil Code (Art. 2180 of the new), which can be rebutted
by proof of the exercise of due care in their selection of supervision. Article 1903 is not applicable to obligations

14
arising EX CONTRACTU, but only to extra-contractual obligations or to use the technical form of expression,
that article relates only to CULPA AQUILIANA' and not to CULPA CONTRACTUAL.lawphil.net

The decisions in the cases of Castro vs. Acro Taxicab Co., (82 Phil., 359; 46 Off. Gaz., No. 5, p. 2023); Lilius, et
al. vs. Manila Railroad, 59 Phil., 758) and others, wherein moral damages were awarded to the plaintiffs, are not
applicable to the case at bar because said decision were rendered before the effectivity of the new Civil Code
(August 30, 1950) and for the further reason that the complaints filed therein were based on different causes of
action.

In view of the foregoing the sum of P2,000 was awarded as moral damages by the trial court has to be eliminated,
for under the law it is not a compensation awardable in a case like the one at bar.

What has been said heretofore relative to the moral damages claimed by Edgardo Cariaga obviously applies
with greater force to a similar claim (4th assignment of error) made by his parents.

The claim made by said spouses for actual and compensatory damages is likewise without merits. As held by
the trial court, in so far as the LTB is concerned, the present action is based upon a breach of contract of carriage
to which said spouses were not a party, and neither can they premise their claim upon the negligence or quasi-
delict of the LTB for the simple reason that they were not themselves injured as a result of the collision between
the LTB bus and train owned by the Manila Railroad Company.

Wherefore, modified as above indicated, the appealed judgement is hereby affirmed in all other respects, with
costs against appellant LTB.

G.R. No. L-25913 February 29, 1969

HEIRS OF RAYMUNDO CASTRO, petitioners,

vs.
APOLONIO BUSTOS, respondent.

BARREDO, J.:

Appeal from the Court of Appeals.

Respondent Apolonio Bustos was charged in the Court of First Instance of Pampanga on October 26, 1962 with
the crime of murder for the killing of Raymundo Castro whose heirs are now the petitioners. The trial court found
Bustos guilty only of homicide and, crediting him with two mitigating circumstances, namely, passion or
obfuscation and voluntary surrender, sentenced him to an indeterminate prison term of 2 years, 4 months and 1
day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum, and to indemnify
the petitioners, who were represented in the case by a private prosecutor, in the sum of six thousand pesos
(P6,000) "without prejudice to whatever the accused (respondent) is entitled from the Government Service
Insurance System (GSIS) for his services of around twenty-six (26) years as a public school teacher, prior to
October 20, 1962." Both respondent and petitioners appealed to the Court of Appeals, respondent asking that
appellate, court acquit him and petitioners praying, on the other hand, that respondent be convicted of murder,
that the portion regarding what said respondent will receive from the GSIS be deleted and that he be ordered to
pay petitioners "the aggregate e sum of P50,764.00 as indemnity and actual, moral, temperate and exemplary
damages." For the purposes of their appeal, petitioners even filed unnecessarily a printed record on appeal. On
October 18, 1965, the Court of Appeals rendered judgment modifying that of the trial court insofar as it concerned
(1) the amount of damages to be awarded petitioners thus:

... Aside from the P6,000 indemnity awarded by the trial court, which we uphold, we feel justified, in the exercise
of our discretion, to award to the heirs of the deceased moral damages in the amount of P6,000 plus P13,380.00
to compensate for the loss of earning of the decedent at the annual salary of P2,676.00 ....
15
and (2) the mitigating circumstance of "obfuscation", appreciated as such by the trial court, which was changed
to "vindication of a grave offense", but affirming it in all other respects. Upon motion, however, of respondent for
the reconsideration of said decision, reiterating his plea for acquittal, or, in the alternative, praying for the
elimination of the award of moral and compensatory damages, the Court of Appeals promulgated on November
13, 1965, an amended decision, the pertinent portions of which are:

The arguments interposed by the appellant in his Motion for consideration to support the complete reversal of
the judgment appealed from, have been considered and passed upon in our decision, and we see no reason to
alter the same in so far as the appellant's guilt of the crime is concerned. On the other hand, we agree with the
appellant that in the interest of justice and equity and in view of the presence of two mitigating circumstances,
without any aggravating one to offset them, the award of moral and compensatory damages should be
eliminated.

WHEREFORE, the decision promulgated October 18, 1965, is hereby amended by eliminating therefrom the
award of P6,000.00 representing moral damages, and of P13,380.00 representing the decedent's loss of
earnings.

From this amended decision, only petitioners have appealed to Us. The prayer in their petition for certiorari asks
for nothing more than that the amended decision of the Court of Appeals be revoked and reversed, and its
original decision be affirmed in toto insofar as the award of indemnity and damages is concerned. Since We find
the grounds of the appeal meritorious, We grant fully the prayer in the petition.

This case affords this Court as appropriate an opportunity, as any other, to restate, in a more comprehensive
way, the law regarding the items of damages that are recoverable in cases of death caused by a crime, whether
the claim therefor is made in the criminal proceedings itself or in a separate civil action. In the instant case,
recovery of such damages is being sought in the criminal proceedings but even if it were claimed otherwise, the
indemnity and damages would be the same, for generally, the items of damages are identical in both procedures,
except with respect to attorney's fees and expenses of litigation which can be awarded only when a separate
civil action is instituted. (Art. 2208, Civil Code) With the clarifications We are making herein, at least the writer of
this opinion expects that litigations regarding the aspects of the law herein passed upon may be minimized.

As a start, it is to be noted that in the matter of damages, the original decision of the Court of Appeals, while
correct in making a particularization in the award of indemnity and damages, nonetheless, still failed to comply
strictly with the constitutional requirement that all decisions of courts of record must state both the facts and
the law on which they are based. (Sec. 12, Art. VIII, Constitution) In said original decision, the Court of Appeals
held:

Coming now to the damages asked by the heirs of the deceased: Aside from the P6,000.00 indemnity awarded
by the trial court which we uphold, we feel justified, in the exercise of our discretion, to award to the heirs of the
deceased moral damages in the amount of P6,000 plus P13,380.00 to compensate for the loss of earning of the
decedent at the annual salary of P2,676.00 (Exh. V; p. 42 t.s.n. Vergara).

WHEREFORE, the appealed judgment is modified as above indicated in so far as it concerns the amount of
indemnity and damages to be awarded to the heirs of the deceased, and the mitigating circumstance of
vindication of a grave offense which takes the place of the circumstance of obfuscation appreciated by the trial
court; and affirmed in all other respects. Costs against the appellant.

As can be seen, no legal or factual basis is stated therein for the award of indemnity and damages to petitioners;
worse, the impression is given that the said award is purely a matter of discretion on the part of the court. Clearly,
this is not in accordance with the law. Indeed, it must have been this failure to refer to the pertinent legal
provisions which induced the appellate court, at the mere invocation by respondent of Art. 2204 of the Civil Code,
to commit the error of readily eliminating in the amended decision the items on moral damages and compensation
for loss of earning of the decedent which its original decision had correctly contained. Having held that it had

16
discretion in the premises, the court easily yielded to the argument that simply because it had credited the
respondent with two mitigating circumstances, it was already justified in eliminating the items of damages already
adverted to, presumably having in mind said Art. 2204 which provides that:

In crimes, the damages to be adjudicated may be respectively increased or lessened according to the
aggravating or mitigating circumstances.

Of course, this was clear error, inasmuch as construed literally or otherwise, the quoted provision does not
warrant a complete deletion of said items of damages. In any event the court evidently failed to take into account
that several other provisions can come into play considering the circumstances in this case.

When the commission of a crime results in death, the civil obligations arising therefrom are governed by the
penal laws, "... subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary
Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code)

Thus, "every person criminally liable for a felony is also civily liable." (Art. 100, Revised Penal Code). This civil
liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and
said consequential damages in turn include "... those suffered by his family or by a third person by reason of the
crime." (Art. 107, id.) Since these provisions are subject, however, as above indicated, to certain provisions of
the Civil Code, We will now turn to said provisions.

The general rule in the Civil Code is that:

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. (Art. 2202)

When, however, the crime committed involves death, there is Art. 2206 which provides thus:

The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even
though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be
paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless
the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity
at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is
not an heir called to the decedent's inheritance by law of testate or intestate succession may demand support
from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the
court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.

The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00
in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v. Pantoja, G. R. No. L-
18793, promulgated October 11, 1968, and it must be stressed that this amount, as well as the amount of moral
damages, may be adjudicated even without proof of pecuniary loss, the assessment of the moral damages being
"left to the discretion of the court, according to the circumstances of each case." (Art. 2216)

Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with
one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid
17
to the offended party," (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the
court will decide whether or not they should be given. (Art. 2233)

In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art.
2206) and in cases wherein exemplary damages are awarded precisely because of the attendance of
aggravating circumstances, (Art. 2230) "... damages to be adjudicated may be respectively increased or
lessened according to the aggravating or mitigating circumstances," (Art. 2204) but "the party suffering the loss
or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act
or omisson in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in
the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be
recovered only when exemplary damages have been granted (Art. 2208, par. 1) or, as We have already stated,
when there is a separate civil action.

Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following
items of damages:

1. As indemnity for the death of the victim of the offense P12,000.00, without the need of any evidence or
proof of damages, and even though there may have been mitigating circumstances attending the commission of
the offense.

2. As indemnity for loss of earning capacity of the deceased an amount to be fixed by the Court according to
the circumstances of the deceased related to his actual income at the time of death and his probable life
expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the
deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If
the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may
demand support from the accused for not more than five years, the exact duration to be fixed by the court.

3. As moral damages for mental anguish, an amount to be fixed by the court. This may be recovered even by
the illegitimate descendants and ascendants of the deceased.

4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, an amount
to be fixed in the discretion of the court, the same to be considered separate from fines.

5. As attorney's fees and expresses of litigation, the actual amount thereof, (but only when a separate civil
action to recover civil liability has been filed or when exemplary damages are awarded).

6. Interests in the proper cases.

7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages
are recoverable separately from and in addition to the fixed sum of P12,000.00 corresponding to the indemnity
for the sole fact of death, and that these damages may, however, be respectively increased or lessened
according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons.

In the light of the foregoing discussion, it is clear that the Court of Appeals erred in eliminating in its amended
decision, the items of moral damages and compensation for loss of earning capacity of the deceased. Indeed,
as to the award of moral damages in case of death, this Court has already held in Mercado v. Lira, etc., G. R.
Nos. L-13328-29, September 29, 1961, that once the heirs of the deceased claim moral damages and are able
to prove they are entitled thereto, it becomes the duty of the court to make the award. We held:

Art. 2206 states further that "In addition" to the amount of at least P3,000.00 to be awarded for the death of a
passenger, the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages as a consequence of the death of their deceased kin, which simply means that once the above-
mentioned heirs of the deceased claim compensation for moral damages and are able to prove that they are
18
entitled to such award, it becomes the duty of the court to award moral damages to the claimant in an amount
commensurate with the mental anguish suffered by them.

This doctrine was reiterated in Maranan v. Perez, G. R. No. L-22272, June 26, 1967:

In connection with the award of damages, the court a quo granted only P3,000 to plaintiff-appellant. This is the
minimum compensatory damages amount recoverable under Art. 1764 in connection with Art. 2206 of the Civil
Code when a breach of contract results in the passenger's death. As has been the policy followed by this Court,
this minimal award should be increased to P6,000 .... Still, Art. 2206 and 1764 award moral damages in addition
to compensatory damages, to the parents of the passenger killed to compensate for the mental anguish they
suffered. A claim therefor, having been properly made, it becomes the court's duty to award moral damages.
Plaintiff demands P5,000 as moral damages; however, in the circumstances, We consider P3,000 moral
damages, in addition to the P6,000 damages aforestated, as sufficient. Interest upon such damages are also
due to plaintiff-appellant.

Likewise, in the matter of the compensatory damages for the loss of earning capacity of the deceased, We also
held in the case of Daniel Bulante v. Chu Liante, G.R. Nos. L- 21583 and L-21591-92, May 20, 1968 that:

The next item objected to refers to the damages awarded to the heirs of the deceased passengers for loss of
earning capacity, separately from the indemnities by reason of death. The ground for the objection is that loss of
earning capacity was not specifically pleaded or claimed in the complaint. This item, however, may be considered
included in the prayer for "actual damages" and for other "just and equitable reliefs", especially if taken in the
light of Art. 2206, in connection with Art. 1764, of the Civil Code, which allows, in addition to an indemnity of at
least P3,000 by reason of death, recovery for loss of earning capacity on the part of the deceased, the same to
be paid to his heirs "in every case ... unless the deceased on account of permanent physical disability not caused
by the defendant, had no earning capacity at the time of his death."

To be sure, these cases of Mercado v. Lira, Maranan v. Perez and Bulante v. Chu Liante from which We have
quoted, were actions based on contracts of common carriers. But the above-mentioned doctrines are equally
applicable to civil liability ex delicto because, after all, Art. 2206 of the Civil Code which was applied in said cases
is precisely the provision pertinent to liability arising from crimes (and quasi-delicts). No doubt, said Article must
have been relied upon by the court in the above cases only because Art. 1764 of the Civil Code provides that
said "Art. 2206 shall also apply to the death of a passenger caused by the breach of contract of a common
carrier." Accordingly, the interpretation given to said article in those cases are applicable to the case at bar. In
other words, this must be so because under the Civil Code, the same rules on damages are generally to be
observed, whether death results from a crime or a quasi-delict or a breach of the contract of common carriage.

As to the amount of the indemnity for moral damages and loss of earning capacity of the deceased in the present
case, the original decision of the Court of Appeals awarding them, does not afford sufficient basis for Us to
increase the amounts fixed by said court, as prayed for by appellants. As has already been stated, the said
decision failed to follow the Constitution, not only in not stating the law on which it is based but also in not making
the necessary findings of fact on which it based its discretion in fixing the respective amounts it awarded for
moral and compensatory damages. Legally, therefore, We can, if We wish to, return this case to that court for it
to supply these constitutional omissions. We opt however, to save time and further difficulties for and damages
to, the petitioners. Extant in the records before Us is the fact that the respondent has never disputed that
petitioners are the widow and seven children of the deceased, three of whom were still minors at the time of his
death, nor that the said deceased was a public school teacher, 56 years old, and earning P2,276.00 a year.
These facts appear to have been repeatedly asserted in the briefs of petitioners in the Court of Appeals and in
this Court. No denial was ever made by the respondent. When respondent moved for the reconsideration of the
original decision of the Court of Appeals, (Annex E of Petition for Certiorari) he only argued that in view of the
mitigating circumstances credited to him by said court, petitioners were not entitled to moral damages and to
indemnity for loss of earning capacity of the deceased; the amounts fixed therefor by said court he never
questioned. When petitioners filed their motion for reconsideration of the amended decision of the Court of
Appeals, these facts (relationship, earnings, etc.) were reiterated. (Annex G, id.) Respondent did not file any
19
answer to said motion despite the resolution requiring him to do so. (Par. 12, Petition for Certiorari) Neither has
respondent filed any brief in the present instance, notwithstanding repeated requests on his part for extension to
file the same, which, incidentally, were all granted. Under these circumstances, We feel justified in brushing
aside strict technicalities of procedure in order to accomplish substantial justice more expeditiously. Anyway, as
We said at the outset, petitioners are asking Us, in the prayer of their petition for certiorari, for nothing more than
to affirm "in toto" the original decision of the Court of Appeals, and in their lone assignment of error in the present
instance, their only claim is that "the Court of Appeals erred when it issued the amended decision eliminating the
award of P6,000 moral damages and the award of P13,380.00 loss of earnings of the deceased Raymundo
Castro." In these circumstances, even if We should award the amounts of damages just mentioned, inspite of
the absence of the pertinent findings of fact by the Court of Appeals, We would not have to reach beyond amounts
that are undisputed by the respondent.

We, therefore, overrule the prayer for additional damages in petitioners' brief and We hold that, on the basis of
the facts not questioned by respondent, they are entitled only to the P6,000.00 as moral damages and the
P13,380.00 as compensatory damages for the loss of earning capacity of the deceased awarded in the original
decision of the Court of Appeals in addition, of course, to the indemnity for death fixed also by said court at
P6,000.00. This amount of P6,000.00 We cannot increase to P12,000.00, as allowed in People v. Pantoja, supra,
and the subsequent cases, (People v. Mongaya G. R. No. L-23708, October 31, 1968, and People v. Ramos, G.
R. No. L-19143, November 29, 1968) because in the instant suit, neither party has appealed in relation thereto.
This case is now before Us on appeal by the offended party only as to specific portions of the civil indemnity to
be paid by the respondent. It would have been different if the whole criminal case were up for our review because
then, even without any appeal on the part of the offended party, We could have still increased the said liability
of the accused, here-in respondent. (See Mercado v. Lira, supra.)

At this juncture, for the guidance of parties similarly situated as petitioners herein, and so that there may be no
useless expenses in appeals by offended parties in regard to the civil aspect of a criminal case when no separate
civil action has been filed by them, it should be made clear that when there is no such separate civil action and
the claim for civil indemnity is joined with the criminal case, no record on appeal, whether printed, typewritten or
mimeographed, is necessary, except perhaps when formal pleading raising complicated questions are filed in
connection therewith, and still, this would be purely optional on the appellant because anyway the whole original
record of the case is elevated in appeals in criminal cases. It is already settled that appeals relating to the civil
aspects of a criminal case should follow the procedure for appeal required by rules of criminal procedure. (People
vs. Lorredo, 50 Phil. 209, 220-221; People v. ViIlanueva, G.R. No. L-18769, May 27, 1966)lawphi1.nt

WHEREFORE, the amended decision of the Court of Appeals is modified as hereinabove indicated, in so far as
the civil liability of respondent is concerned, with costs against him in this instance.

G.R. No. L-25499 February 18, 1970

VILLA REY TRANSIT, INC., petitioner,

vs.
THE COURT OF APPEALS, TRINIDAD A. QUINTOS, PRIMA A. QUINTOS, AND JULITA A.
QUINTOS, respondents.

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

20
At about 1:30 in the morning of March 17, 1960, an Izuzu First Class passenger bus owned and operated by the
defendant, bearing Plate No. TPU-14871-Bulacan and driven by Laureano Casim, left Lingayen, Pangasinan,
for Manila. Among its paying passengers was the deceased, Policronio Quintos, Jr. who sat on the first seat,
second row, right side of the bus. At about 4:55 o'clock a.m. when the vehicle was nearing the northern approach
of the Sadsaran Bridge on the national highway in barrio Sto. Domingo, municipality of Minalin, Pampanga, it
frontally hit the rear side of a bullcart filled with hay. As a result the end of a bamboo pole placed on top of the
hayload and tied to the cart to hold it in place, hit the right side of the windshield of the bus. The protruding end
of the bamboo pole, about 8 feet long from the rear of the bullcart, penetrated through the glass windshield and
landed on the face of Policronio Quintos, Jr. who, because of the impact, fell from his seat and was sprawled on
the floor. The pole landed on his left eye and the bone of the left side of his face was fractured. He suffered other
multiple wounds and was rendered unconscious due, among other causes to severe cerebral concussion. A La
Mallorca passenger bus going in the opposite direction towards San Fernando, Pampanga, reached the scene
of the mishap and it was stopped by Patrolman Felino Bacani of the municipal police force of Minalin who, in the
meantime, had gone to the scene to investigate. Patrolman Bacani placed Policronio Quintos, Jr. and three other
injured men who rode on the bullcart aboard the La Mallorca bus and brought them to the provincial hospital of
Pampanga at San Fernando for medical assistance. Notwithstanding such assistance, Policronio Quintos, Jr.
died at 3:15 p.m. on the same day, March 17, 1960, due to traumatic shock due to cerebral injuries.

The private respondents, Trinidad, Prima and Julita, all surnamed Quintos, are the sisters and only surviving
heirs of Policronio Quintos Jr., who died single, leaving no descendants nor ascendants. Said respondents herein
brought this action against herein petitioner, Villa Rey Transit, Inc., as owner and operator of said passenger
bus, bearing Plate No. TPU-14871-Bulacan, for breach of the contract of carriage between said petitioner and
the deceased Policronio Quintos, Jr., to recover the aggregate sum of P63,750.00 as damages, including
attorney's fees. Said petitioner defendant in the court of first instance contended that the mishap was due
to a fortuitous event, but this pretense was rejected by the trial court and the Court of Appeals, both of which
found that the accident and the death of Policronio had been due to the negligence of the bus driver, for whom
petitioner was liable under its contract of carriage with the deceased. In the language of His Honor, the trial
Judge:

The mishap was not the result of any unforeseeable fortuitous event or emergency but was the direct result of
the negligence of the driver of the defendant. The defendant must, therefore, respond for damages resulting
from its breach of contract for carriage. As the complaint alleged a total damage of only P63,750.00 although
as elsewhere shown in this decision the damages for wake and burial expenses, loss of income, death of the
victim, and attorneys fee reach the aggregate of P79,615.95, this Court finds it just that said damages be
assessed at total of only P63,750.00 as prayed for in plaintiffs' amended complaint.

The despositive part of the decision of the trial Court reads:

WHEREFORE, judgment is hereby rendered ordering the defendant to pay to the plaintiffs the amount of
P63,750.00 as damages for breach of contract of carriage resulting from the death of Policronio Quintos, Jr.
which, as above indicated, was affirmed by the Court of Appeals. Hence, the present petition for review
on certiorari, filed by Villa Rey Transit, Inc.

The only issue raised in this appeal is the amount of damages recoverable by private respondents herein. The
determination of such amount depends, mainly upon two (2) factors, namely: (1) the number of years on the
basis of which the damages shall be computed and (2) the rate at which the losses sustained by said respondents
should be fixed.

The first factor was based by the trial court the view of which was concurred in by the Court of Appeals
upon the life expectancy of Policronio Quintos, Jr., which was placed at 33-1/3 years he being over 29 years
of age (or around 30 years for purposes of computation) at the time of his demise by applying the formula
(2/3 x [80-301 = life expectancy) adopted in the American Expectancy Table of Mortality or the actuarial of
Combined Experience Table of Mortality. Upon the other hand, petitioner maintains that the lower courts had
erred in adopting said formula and in not acting in accordance with Alcantara v. Surro1 in which the damages
21
were computed on a four (4) year basis, despite the fact that the victim therein was 39 years old, at the time of
his death, and had a life expectancy of 28.90 years.

The case cited is not, however, controlling in the one at bar. In the Alcantara case, none of the parties had
questioned the propriety of the four-year basis adopted by the trial court in making its award of damages. Both
parties appealed, but only as regards the amount thereof. The plaintiffs assailed the non-inclusion, in its
computation, of the bonus that the corporation, which was the victim's employer, had awarded to deserving
officers and employees, based upon the profits earned less than two (2) months before the accident that resulted
in his death. The defendants, in turn, objected to the sum awarded for the fourth year, which was treble that of
the previous years, based upon the increases given, in that fourth year, to other employees of the same
corporation. Neither this objection nor said claim for inclusion of the bonus was sustained by this Court.
Accordingly, the same had not thereby laid down any rule on the length of time to be used in the computation of
damages. On the contrary, it declared:

The determination of the indemnity to be awarded to the heirs of a deceased person has therefore no fixed basis.
Much is left to the discretion of the court considering the moral and material damages involved, and so it has
been said that "(t)here can be no exact or uniform rule for measuring the value of a human life and the measure
of damages cannot be arrived at by precise mathematical calculation, but the amount recoverable depends on
the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiary,
whichever is shorter, is an important factor.' (25 C.J.S. 1241.) Other factors that are usually considered are: (1)
pecuniary loss to plaintiff or beneficiary (25 C.J.S. 1243-1250) ; (2) loss of support (25 C.J.S., 1250-1251); (3)
loss of service (25 C.J.S. 1251-1254); (4) loss of society (25 C.J.S. 1254-1255); (5) mental suffering of
beneficiaries (25 C.J.S., 1258-1259) ; and (6) medical and funeral expenses (26 C.J.S., 1254-1260)."2

Thus, life expectancy is, not only relevant, but, also, an important element in fixing the amount recoverable by
private respondents herein. Although it is not the sole element determinative of said amount, no cogent reason
has been given to warrant its disregard and the adoption, in the case at bar, of a purely arbitrary standard, such
as a four-year rule. In short, the Court of Appeals has not erred in basing the computation of petitioner's liability
upon the life expectancy of Policronio Quintos, Jr.

With respect to the rate at which the damages shall be computed, petitioner impugns the decision appealed from
upon the ground that the damages awarded therein will have to be paid now, whereas most of those sought to
be indemnified will be suffered years later. This argument is basically true, and this is, perhaps, one of the
reasons why the Alcantara case points out the absence of a "fixed basis" for the ascertainment of the damages
recoverable in litigations like the one at bar. Just the same, the force of the said argument of petitioner herein is
offset by the fact that, although payment of the award in the case at bar will have to take place upon the finality
of the decision therein, the liability of petitioner herein had been fixed at the rate only of P2,184.00 a year, which
is the annual salary of Policronio Quintos, Jr. at the time of his death, as a young "training assistant" in the
Bacnotan Cement Industries, Inc. In other words, unlike the Alcantara case, on which petitioner relies, the lower
courts did not consider, in the present case, Policronio's potentiality and capacity to increase his future income.
Indeed, upon the conclusion of his training period, he was supposed to have a better job and be promoted from
time to time, and, hence, to earn more, if not considering the growing importance of trade, commerce and
industry and the concomitant rise in the income level of officers and employees
therein much more.

At this juncture, it should be noted, also, that We are mainly concerned with the determination of the losses or
damages sustained by the private respondents, as dependents and intestate heirs of the deceased, and that
said damages consist, not of the full amount of his earnings, but of the support, they received or would have
received from him had he not died in consequence of the negligence of petitioner's agent. In fixing the amount
of that support, We must reckon with the "necessary expenses of his own living", which should be deducted from
his earnings. Thus, it has been consistently held that earning capacity, as an element of damages to one's estate
for his death by wrongful act is necessarily his net earning capacity or his capacity to acquire money, "less the
necessary expense for his own living.3 Stated otherwise, the amount recoverable is not loss of the entire earning,
but rather the loss of that portion of the earnings which the beneficiary would have received.4 In other words,
22
only net earnings, not gross earning, are to be considered5 that is, the total of the earnings less expenses
necessary in the creation of such earnings or income6 and less living and other incidental expenses.7

All things considered, We are of the opinion that it is fair and reasonable to fix the deductible living and other
expenses of the deceased at the sum of P1,184.00 a year, or about P100.00 a month, and that, consequently,
the loss sustained by his sisters may be roughly estimated at P1,000.00 a year or P33,333.33 for the 33-1/3
years of his life expectancy. To this sum of P33,333.33, the following should be added: (a) P12,000.00, pursuant
to Arts. 104 and 107 of the Revised Penal Code, in relation to Article 2206 of our Civil Code, as construed and
applied by this Court;8 (b) P1,727.95, actually spent by private respondents for medical and burial expenses;
and (c) attorney's fee, which was fixed by the trial court, at P500.00, but which, in view of the appeal taken by
petitioner herein, first to the Court of Appeals and later to this Supreme Court, should be increased to P2,500.00.
In other words, the amount adjudged in the decision appealed from should be reduced to the aggregate sum of
P49,561.28, with interest thereon, at the legal rate, from December 29, 1961, date of the promulgation of the
decision of the trial court.

Thus modified, said decision and that of the Court of Appeals are hereby affirmed, in all other respects, with
costs against petitioner, Villa Rey Transit, Inc. It is so ordered.

[G.R. No. 141011. July 19, 2001]

CITYTRUST BANKING CORPORATION (now Bank of the Philippine Islands), petitioner, vs. ISAGANI C.
VILLANUEVA, respondent. [G.R. No. 141028. July 19, 2001]
ISAGANI C. VILLANUEVA, petitioner, vs. CITYTRUST BANKING CORPORATION, respondent.
In these consolidated cases, the Court is called upon to determine whether the repeated dishonor of a check
drawn against a well-funded account but bearing the account number of another depositor with the same name
and surname as the drawer would entitle the drawer to compensatory and moral damages and to attorneys fees.
The antecedent facts are as follows:
Sometime in February 1984, Isagani C. Villanueva (hereafter VILLANUEVA) opened a savings account and
a current account with Citytrust Banking Corporation (hereafter the BANK), which were assigned account
numbers 1-033-02337-1 and 33-00977-5, respectively, with an automatic transfer arrangement.
On 21 May 1986, VILLANUEVA deposited some money in his savings account with the BANKs Legaspi
Village Branch in Makati, Metro Manila. Realizing that he had run out of blank checks, VILLANUEVA requested
a new checkbook from one of the BANKs customer service representatives. He then filled up a checkbook
requisition slip with the obligatory particulars, except for his current account number which he could not
remember. He expressed his predicament to a lady customer service representative of the BANK, who in turn
assured him that she could supply the information from the BANKs account records. After signing the requisition
slip, he gave it to her.[1]
Pia Rempillo, another customer service representative of the BANK, saw VILLANUEVAs checkbook
requisition slip. She took it and proceeded to check the BANKs checkbook register which contained all the names
and account numbers of the BANKs clients who were issued checkbooks. Upon seeing the name Isagani
Villanueva -- Account No. 33-00446-3 in the checkbook register, Rempillo copied the aforesaid account number
on the space intended for it in VILLANUEVAs requisition slip.[2]
On 17 June 1986, VILLANUEVA received from the BANK his requested checkbook. On the same day, he
immediately signed Check No. 396701 bearing the amount of P50,000 payable to the order of Kingly
Commodities Traders and Multi Resources, Inc. (hereafter Kingly Commodities). VILLANUEVA thereafter
delivered the check to Helen Chu, his investment consultant at Kingly Commodities, with his express instruction

23
to use said check in placing a trading order at Kingly Commodities future trading business as soon as a favorable
opportunity presented itself.[3]
Two days later, or on 19 June 1986, VILLANUEVA received a call from Helen Chu, informing him that she
had already placed a trading order in his behalf and delivered the check to Kingly Commodities. The check was
deposited with the China Banking Corporation. The next day, he deposited P31,600 in cash to his savings
account to cover the full amount of the check he issued. His deposits in both accounts totalled P51,304.91.[4]
However, on 23 June 1986, VILLANUEVAs Check No. 396701 was dishonored due to insufficiency of funds
and disparity in the signature. VILLANUEVA called Kingly Commodities and explained that there was a mistake
in the dishonor of the check because he had sufficient funds. Forthwith on the same day, VILLANUEVA called
up the BANKs Legaspi Village Branch Operations Manager, Maritess Gamboa, and inquired about the dishonor
of his well-funded check. Gamboa promised to look into the matter and instructed VILLANUEVA to advise his
payee, Kingly Commodities, to re-deposit the check. Gamboa assured VILLANUEVA that the check would be
honored after the sufficiency of the funds was ascertained.[5]
On 26 June 1986 at about 4:00 p.m., VILLANUEVA learned that his check was again dishonored due to
insufficiency of funds and a stop- payment order he allegedly issued. Dismayed by the turn of events,
VILLANUEVA called up the BANK and inquired from Gamboa the reason for the dishonor of his well-funded
check and the alleged stop-payment order which he never issued. Gamboa promised to investigate the matter
and to call VILLANUEVA in fifteen (15) minutes.[6] In the meantime, she advised VILLANUEVA to re-deposit the
check.
VILLANUEVA then requested Lawrence Chin of Kingly Commodities to give him until 5:30 p.m. that same
day to make good his P50,000 check. He then proceeded to the BANKs Legaspi Village Branch Office, together
with his investment consultant and his trading partner, to personally inquire into the matter. They were met by
Marilou Genuino, the BANKs Branch Manager. There he complained that his trading order was rejected because
of the dishonor of the check and that Kingly Commodities threatened to close his trading account unless his
check payment would be made good before 5:30 p.m. that day. After making the necessary investigation,
Genuino related to VILLANUEVA that the reason for the dishonor of the check was that the account number
assigned to his new checkbook was the account number of another depositor also named Isagani Villanueva
but with a different middle initial.[7]
To resolve the matter, Genuino promised to send to Kingly Commodities a managers check for P50,000
before 5:30 p.m., the deadline given to VILLANUEVA. She also personally called Kingly Commodities and
explained the reason for the dishonor of the check.[8]
On 30 June 1986, VILLANUEVA sent a letter[9] to the BANK addressed to the President, Jose Facundo,
demanding indemnification for alleged losses and damages suffered by him as a result of the dishonor of his
well-funded check. He demanded the amount of P70,000 as indemnification for actual damages in the form of
lost profits and P2 Million for moral and other damages.
On 10 July 1986, in answer to VILLANUEVAs letter, Gregorio Anonas III, the BANKs Senior Vice-President,
apologized for the unfortunate oversight, but reminded VILLANUEVA that the dishonor of his check was due to
his failure to state his current account number in his requisition slip. Anonas further stated that as soon as the
mistake was discovered, the BANK promptly sent a managers check to Kingly Commodities before 5:30 p.m. on
26 June 1986 to avoid any damage the dishonor of the check might have caused.[10]
Failing to obtain from the BANK a favorable action on his demand for indemnification, VILLANUEVA filed
on 27 August 1986 a complaint for damages based on breach of contract and/or quasi-delict before the Regional
Trial Court of Makati City. The case was docketed as Civil Case No. 14749 and was raffled to Branch 63 thereof.
VILLANUEVA alleged in his complaint that the BANK breached its contractual obligation to him as a
depositor because of its repeated dishonor of his valid and well-funded check. The breach arose from the BANKs
gross negligence and culpable recklessness in supplying the wrong account number. As a consequence, he
suffered and sustained (1) actual damages consisting of loss of profits in the amount of at least P240,000, for
he was not allowed to trade by Kingly Commodities; and (2) P2 Million as moral damages because of the
intolerable physical inconvenience, discomfort, extreme humiliation, indignities, etc., that he had borne before
24
his peers and colleagues in the firm, his trading partners, and the officers of Kingly Commodities. He prayed for
an additional award of P500,000 for exemplary damages, attorneys fees, litigation expenses and costs of the
suit.[11]
In its answer, the BANK alleged that VILLANUEVA suffered no actionable injury, much less damages,
considering his blatant irresponsibility in not remembering his current account number and in failing to bring his
checkbook re-order slip form on which his account number was inscribed when he requested a new set of
checks. His negligence in verifying the account number of the new set of checks issued to him also contributed
to the dishonor of his check. The BANK claimed that it acted in good faith when it twice dishonored the check. It
further asserted that VILLANUEVAs negligence was the proximate cause of his self-proclaimed injury; and the
alleged losses and damages could not likewise be deemed the natural and probable consequences of the BANKs
breach of obligation, had there been any.Finally, it claimed that VILLANUEVA acted with malice in filing the case,
and interposed counterclaims of P500,000 as exemplary damages; P250,000 as attorneys fees; and actual
damages as may be determined by the court.[12]
After due proceedings, the trial court rendered on 3 July 1992 a decision[13] dismissing the complaint and
the compulsory counterclaim for lack of merit. To the trial court, the basic issue was whether it was
VILLANUEVAs or the BANKs negligence which was the proximate cause of the formers alleged injury. After an
evaluation of the respective allegations and evidence of the parties, the trial court found that VILLANUEVAs
negligence set the chain of events which resulted in his alleged losses and damages. His negligence consisted
in his failure to (a) indicate his current account number when he filled up his requisition slip for a new set of
checks; (b) remember his account number; (c) bring the used checkbook to which was attached the pre-order
requisition slip on which the account number was pre-indicated; (d) give the requisition slip to the care and
custody of a BANK officer or employee instead of leaving the requisition slip on top of one of the tables of the
BANK; and (e) verify the account number of the new set of checks when it was delivered to him. These omissions
directly resulted in the dishonor of his check drawn from an account bearing the account number of another
BANK client whose name and surname were similar to his. VILLANUEVA then must bear the consequent
damages and losses he allegedly suffered.
The trial court conceded, however, that the BANK was negligent when it failed to supply VILLANUEVAs
correct account number despite its promise to do so; but its negligence was merely contributory, which would
have reduced the damages recoverable by VILLANUEVA had the latter proved his claims for actual, moral and
exemplary damages, and attorneys fees.
Likewise, the trial court doubted that VILLANUEVA sustained actual damages in the amount of P240,000
due to loss of profits as averred in the complaint considering that his initial claim against the BANK for actual
loss was merely P70, 000[14] and the evidence presented in support thereof was hearsay, unreliable and not the
best evidence.
VILLANUEVA appealed to the Court of Appeals. The appeal was docketed as CA-G.R. CV No. 40931.
In his appeal, VILLANUEVA maintained that the BANK was guilty of gross or culpable negligence amounting
to bad faith when its customer service representative furnished an erroneous account number. He further
contended that the same was the proximate cause of the repeated dishonor of his check. He should, therefore,
be entitled to an award of actual, moral and exemplary damages, including attorneys fees and costs of the suit.
The Court of Appeals, in its decision of 2 February 1999,[15] ruled that when the BANK voluntarily processed
the requisition slip without the requisite account number being supplied by the applicant, it in effect took upon
itself the obligation to supply the correct account number. Thus, when the new checkbook was released to
VILLANUEVA on 17 June 1986, the BANK was deemed to have waived any defect in the requisition slip and
estopped from putting the blame on VILLANUEVAs failure to indicate his account number. VILLANUEVA had
every right to assume that everything was in order in his application for a new checkbook; for, after all, he was
banking with a world class universal bank. The banking industry is imbued with public interest and is mandated
by law to serve its clients with extraordinary care and diligence.
The Court of Appeals also considered the BANKs voluntary processing of the requisition slip as the cause
which in the natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury
and without which the result would not have occurred.[16] However, although it conceded that the BANKs
25
negligence was not attended with malice and bad faith, it nonetheless awarded moral damages in the amount
of P100,000. It also awarded attorneys fees in the amount of P50,000, since VILLANUEVA was compelled to
incur expenses to protect his interests by reason of the unjustified act or omission of the BANK. However, it
rejected VILLANUEVAs claim for compensatory damages and affirmed the trial courts finding thereon.
Upon the denial[17] of their respective motions for reconsideration, both VILLANUEVA and the BANK
appealed to us by way of petition for review.
In its petition, the BANK ascribes to the Court of Appeals as reversible errors its (1) reversal of the court a
quos decision; (2) declaration that the proximate and efficient cause of the injury allegedly suffered by
VILLANUEVA was the BANKs processing of the checkbook and assigning an erroneous account number, and
not the negligent act of VILLANUEVA in leaving the checkbook requisition slip on top of one of the desks with
the account number entry blank; and (3) award of moral damages and attorneys fees despite the absence of a
finding of bad faith on the part of the BANK.
In his petition, VILLANUEVA asserts that the Court of Appeals erred in holding that his actual losses in the
amount of P234,059.04 was not sufficiently proved with reasonable certainty. Had his fully-funded check not
been dishonored twice, his four trading orders with Kingly Commodities consisting of two (2) open sell positions
on 17 and 18 of June 1986 and two (2) settle buy orders on 26 June 1986 would have earned him profits in the
amount he claimed. He emphatically maintains that the loss had been satisfactorily proved by the testimony of
Helen Chu, his investment consultant. Ms. Chus testimony was not controverted; hence, it should have been
considered and admitted as factually true. Considering that his claim for actual damages has been adequately
established and that the BANK committed gross negligence amounting to bad faith, his concomitant demand for
exemplary damages should likewise be awarded.
The issue of whether VILLANUEVA suffered actual or compensatory damages in the form of loss of profits
is factual. Both the Court of Appeals and the trial court have ascertained that VILLANUEVA was unable to prove
his demand for compensatory damages arising from loss. His evidence thereon was found inadequate,
uncorroborated, speculative, hearsay and not the best evidence. Basic is the jurisprudential principle that in
determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork
but must depend on competent proof and on the best obtainable evidence of the actual amount of the
loss.[18] Actual damages cannot be presumed but must be duly proved with reasonable certainty.[19]
It must also be stressed that the unanimity on the factual ascertainment on this point by the trial court and
the Court of Appeals bars us from supplanting their finding and substituting it with our own assessment. Well-
entrenched in our jurisprudence is the doctrine that the factual determinations of the lower courts are conclusive
and binding upon appellate courts and hence should not be disturbed. None of the recognized exceptions to said
principle exists in this case to warrant a reexamination of such finding. Besides, our jurisdiction in cases brought
before us from the Court of Appeals is limited to the review of errors of law. [20]
Nonetheless, is VILLANUEVA entitled to the moral damages and attorneys fees granted by the Court of
Appeals?
Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury.[21] Although incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act
or omission.[22] Thus, case law establishes the requisites for the award of moral damages, viz: (1) there must be
an injury, whether physical, mental or psychological, clearly sustained by the claimant; (2) there must be a
culpable act or omission factually established; (3) the wrongful act or omission of the defendant is the proximate
cause of the injury sustained by the claimant; and (4) the award of damages is predicated on any of the cases
stated in Article 2219 of the Civil Code.[23]
It is beyond cavil that VILLANUEVA had sufficient funds for the check. Had his account number been
correct, the check would not have been dishonored. Hence, we can say that VILLANUEVAs injury arose from
the dishonor of his well-funded check. We have already ruled that the dishonor of the check does not entitle him
to compensatory damages. But, could the dishonor result in his alleged intolerable physical inconvenience and
discomfort, extreme humiliation, indignities, etc, which he had borne before his peers, trading partners and
officers of Kingly Commodities? True, we find that under the circumstances of this case, VILLANUEVA might
26
have suffered some form of inconvenience and discomfort as a result of the dishonor of his check. However, the
same could not have been so grave or intolerable as he attempts to portray or impress upon us.
Further, it is clear from the records that the BANK was able to remedy the caveat of Kingly Commodities to
VILLANUEVA that his trading account would be closed at 5:30 p.m. on 26 June 1986. The BANK was able to
issue a managers check in favor of Kingly Commodities before the deadline. It was able to likewise explain to
Kingly Commodities the circumstances surrounding the unfortunate situation. Verily, the alleged embarrassment
or inconvenience caused to VILLANUEVA as a result of the incident was timely and adequately contained,
corrected, mitigated, if not entirely eradicated. VILLANUEVA, thus, failed to support his claim for moral damages.
In short, none of the circumstances mentioned in Article 2219 of the Civil Code exists to sanction the award for
moral damages.
The award of attorneys fees should likewise be deleted. The general rule is that attorneys fees cannot be
recovered as part of damages because of the policy that no premium should be placed on the right to litigate.
They are not to be awarded every time a party wins a suit. The power of the court to award attorneys fees under
Article 2208 of the Civil Code demands factual, legal and equitable justification.Even when a claimant is
compelled to litigate with third persons or to incur expenses to protect his rights, still attorneys fees may not be
awarded where there is no sufficient showing of bad faith in the parties persistence of a case other than an
erroneous conviction of the righteousness of his cause.[24]
In view of the foregoing discussion, we need not deliberate on the dispute as to whether it was the BANKs
or VILLANUEVAs negligence which was the proximate cause of the latters injury because, in the first place, he
did not sustain any compensable injury. If any damage had been suffered at all, it could be equivalent to damnum
absque injuria, i.e., damage without injury or damage or injury inflicted without injustice, or loss or damage
without violation of a legal right, or a wrong done to a man for which the law provides no remedy.[25]
WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No. 40931 is hereby REVERSED, and
the judgment of the Regional Trial Court of Makati City, Branch 63, in Civil Case No. 14749 dismissing the
complaint and the counterclaim is hereby REINSTATED.
No costs.
SO ORDERED.

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily
procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita
Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the
evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering
the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of
Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who
rendered a separate dissenting opinion.

The facts are set forth in the majority opinion as follows:

27
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 through her aunt Paula
Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to
conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the
defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955,
accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's
clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was
again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The
plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did
not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon
application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the
provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error,
for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of
an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva
no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-
Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one
injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on
account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact,
even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal
death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical
capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived
child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits
such provisional personality by imposing the condition that the child should be subsequently born alive: "provided
it be born later with the condition specified in the following article". In the present case, there is no dispute that
the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had
for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton,
52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those
inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to
life and physical integrity. Because the parents can not expect either help, support or services from an unborn
child, they would normally be limited to moral damages for the illegal arrest of the normal development of
the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the
disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the
circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of
Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference
to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was
unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion;
and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event,
he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of
the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken
interest in the administrative and criminal cases against the appellant. His only concern appears to have been
directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and

28
P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly
exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which
his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary;
and that his primary concern would be to see to it that the medical profession was purged of an unworthy
member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either
the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a
civil action for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity
to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the
consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does
not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for
their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

G.R. No. L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner,

vs.
THE HON. COURT OF APPEALS, ET AL., respondents.

Regino Hermosisima for petitioner.

F.P. Gabriel, Jr. for respondents.

CONCEPCION, J.:

An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals
modifying that of the Court of First Instance of Cebu.

On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris
Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the
paternity of child and expressed willingness to support the latter, but denied having ever promised to marry the
complainant. Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of
alimony pendente lite, P50.00 a month, which was, on February 16, 1955, reduced to P30.00 a month. In due
course, later on, said court rendered a decision the dispositive part of which reads:

WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of
defendant, and confirming the order pendente lite, ordering defendant to pay to the said child, through plaintiff,
the sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing defendant to pay
to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory
damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of FIVE
HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant.

On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and
compensatory damages and the moral damages, which were increased to P5,614.25 and P7,000.00,
respectively.
29
The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to
marry. The pertinent facts are:

Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga
Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than she, used to go
around together and were regarded as engaged, although he had made no promise of marriage prior thereto. In
1951, she gave up teaching and became a life insurance underwriter in the City of Cebu, where intimacy
developed among her and the petitioner, since one evening in 1953, when after coming from the movies, they
had sexual intercourse in his cabin on board M/V "Escao," to which he was then attached as apprentice pilot.
In February 1954, Soledad advised petitioner that she was in the family way, whereupon he promised to marry
her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity and clinic. However,
subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which
was commenced on or about October 4, 1954.

Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery
of damages for breach to marry. Article 43 and 44 of said Code provides:

ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall
entertain any complaint by which the enforcement of such promise is sought.

ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the concurrence
of the person whose consent is necessary for the celebration of the marriage, or if the banns have been
published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the
expenses which he or she may have incurred by reason of the promised marriage.

The action for reimbursement of expenses to which the foregoing article refers must be brought within one year,
computed from the day of the refusal to celebrate the marriage.

Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58
Phil., 866), that "the action for breach of promises to marry has no standing in the civil law, apart from the right
to recover money or property advanced . . . upon the faith of such promise". The Code Commission charged
with the drafting of the Proposed Civil Code of the Philippines deem it best, however, to change the law thereon.
We quote from the report of the Code Commission on said Proposed Civil Code:

Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in
the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said
articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might
arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral
damages, in case of breach of promise of marriage, and that creating liability for causing a marriage engagement
to be broken.

Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book
I thereof:

Art. 56. A mutual promise to marry may be made expressly or impliedly.

Art. 57. An engagement to be married must be agreed directly by the future spouses.

Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into
by a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen
years. Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil
action for damages in case of breach of the promise.

30
Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable,
even though approved by the parent or guardian.

Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for
seduction shall not be affected.

Art. 61. No action for specific performance of a mutual promise to marry may be brought.

Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor
without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian
may institute the action.

Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also
compensation for mental and moral suffering.

Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who
cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the
engaged person who is rejected.

Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return
what he or she has received from the other as gift on account of the promise of the marriage.

These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the
corresponding Senate Committee, from which we quote:

The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been
definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the
United States and in England has shown that no other action lends itself more readily to abuse by designing
women and unscrupulous men. It is this experience which has led to the abolition of the rights of action in the
so-called Balm suit in many of the American States.

See statutes of:

Florida 1945 pp. 1342 1344

Maryland 1945 pp. 1759 1762
Nevada 1943 p. 75
Maine 1941 pp. 140 141
New Hampshire 1941 p. 223
California 1939 p. 1245
Massachusetts 1938 p. 326
Indiana 1936 p. 1009
Michigan 1935 p. 201
New York 1935
Pennsylvania p. 450

The Commission perhaps though that it has followed the more progression trend in legislation when it provided
for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when so
many States, in consequence of years of experience are doing away with them, may well prove to be a step in
the wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.)

The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest
intent of our law making body not to sanction actions for breach of promise to marry, the award of moral damages
made by the lower courts is, accordingly, untenable. The Court of Appeals said award:
31
Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed
by her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman
after all, we hold that said defendant-appellant is liable for seduction and, therefore, moral damages may be
recovered from him under the provision of Article 2219, paragraph 3, of the new Civil Code.

Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those
following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that
the "seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of
the Revised Penal Code, which admittedly does not exist in the present case, we find ourselves unable to say
that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than
the complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere
apprentice pilot, but, also, because, the court of first instance found that, complainant "surrendered herself" to
petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their
engagement even before they had the benefit of clergy."

The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the
support of the child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her
pregnancy and shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral
damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second item the sum of
P1,114.25 consisting of P144.20, for hospitalization and medical attendance, in connection with the
parturiation, and the balance representing expenses incurred to support the child and increased the moral
damages to P7,000.00.

With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore,
in all other respects, without special pronouncement as to cost in this instance. It is so ordered.

G.R. No. L-8721 May 23, 1957

TRANQUILINO CACHERO, plaintiff-appellant,

vs.
MANILA YELLOW TAXICAB CO., INC., defendant-appellant.

There is no dispute as to the following facts: on December 13, 1952, Atty. Tranquilino F. Cachero boarded a
Yellow Taxicab, with plate No. 2159-52 driven by Gregorio Mira Abinion and owned by the Manila Yellow Taxicab
Co., Inc. On passing Oroquieta between Doroteo Jose and Lope de Vega streets, Gregorio Mira Abinion bumped
said taxicab against a Meralco post, No. 1-4/387, with the result that the cab was badly smashed and the plaintiff
fell out of the vehicle to the ground, suffering thereby physical injuries, slight in nature.

The chauffeur was subsequently prosecuted by the City Fiscal and on February 26, 1963, upon his plea of guilty
the Municipal Court of Manila sentenced him to suffer 1 month and 1 day of arresto mayor, and to pay the costs.
On December 17, 1952, Tranquilino F. Cachero addressed a letter to the Manila Yellow Taxicab Co., Inc., which
was followed by another of January 6, 1953, which reads as follows:

MANILA, January 6, 1953

The MANILA YELLOW TAXICAB CO., INC.

1338 Arlegui, Manila

Dear Sirs:

32
 As you have been already advised by the letter dated December 17, 1952, on December 13, 1952,
while I was a passenger of your taxicab bearing plate No. 2159 and driven by your chauffeur Gregorio
Mira and through his negligence and the bad condition of the said car, he bumped the same against the
pavement on the street (Oroquieta between Doroteo Jose and Lope de Vega streets, Manila) and hit
the Meralco post on said street, resulting in the smashing of the said taxicab, and as a result thereof I
was gravely injured and suffered and is still suffering physical, mental and moral damages and not
being able to resume my daily calling.

For the said damages, I hereby make a demand for the payment of the sum of P79,245.65, covering
expenses for transportation to the hospital for medical treatment, medicines, doctors bills, actual
monetary loss, moral, compensatory and exemplary damages, etc., within 5 days from date of receipt
hereof.

I trust to hear from you on the matter within the period of 5 days above specified.

Truly yours,

(Sgd.) TRANQUILINO F. CACHERO

2256 Int. B, Misericordia St.,
Sta. Cruz, Manila

(Exhibit K)

The Taxicab Co. to avoid expenses and time of litigation offered to settle the case amicably with plaintiff but
the latter only agreed to reduce his demand to the sum of P72,050.20 as his only basis for settlement which, of
course, was not accepted by said company. So plaintiff instituted this action on February 2, 1953, in the Court
of First Instance of Manila, praying in the complaint that the defendant be condemned to pay him:

(a) The sum of P72,050.20, the total sum of the itemized losses and/or damages under paragraph 7 of the
complaint, with legal interest thereon from the date of the filing of the complaint;

(b) The sum of P5,000 as attorney's fee; and the costs of the suit; and

Plaintiff further respectfully prays for such other and further reliefs as the facts and the law pertaining to the
case may warrant.

The defendant answered the complaint setting forth affirmative defenses and a counterclaim for P930 as
damages and praying for the dismissal of plaintiff's action. After hearing the Court rendered decision only July
20, 1954, the dispositive part of which is as follows:

IN VIEW OF THE FOREGOING, the Court hereby renders judgment in favor of the plaintiff and against the
defendant, sentencing the latter to pay the former the following: (1) For medicine, doctor's fees for services
rendered and transportation, P700; (2) professional fee as attorney for the defendant in Criminal Case No. 364,
"People vs. Manolo Maddela et al." of the Court of First Instance of Nueva Vizcaya, P3,000; (3) professional fees
as attorney for the defendant in Civil Case No. 23891 of the Municipal Court of Manila, "Virginia Tangulan vs.
Leonel da Silva," and for the taking of the deposition of Gabina Angrepan in a case against the Philippine National
Bank, P200; and(4) moral damages in the amount of P2,000.

Defendant's counterclaim is hereby dismissed.

Defendant shall also pay the costs."

33
From this decision both parties appealed to Us, plaintiff limiting his appeal to the part of the decision which refers
to the moral damages awarded to him which he considered inadequate, and to the failure of said judgment to
grant the attorney's fees asked for in the prayer of his complaint. Defendant in turn alleges that the trial Court
erred in awarding to the plaintiff the following:

(1) P700 for medicine, doctor's fees and transportation expenses;

(2) P3,000 as supposedly unearned full professional fees as attorney for the defendant in Criminal Case No.
364, "People vs. Manolo Maddela et al.";

(3) P200 as supposedly unearned professional fees as attorney for the defendant in Civil Case No. 23891 of
the Manila Municipal Court, "Virginia Tangulan vs. Leonel de Silva", and for failure to take the deposition of a
certain Gabina Angrepan in an unnamed case; and

(4) P2,000 as moral damages, amounting to the grand total of P5,900, these amounts being very much greater
than what plaintiff deserves.

In connection with his appeal, plaintiff calls attention to the testimonies of Dr. Modesto S. Purisima and of Dr.
Francisco Aguilar, a member of the staff of the National Orthopedic Hospital, which he considers necessary as
a basis for ascertaining not only the physical sufferings undergone by him, but also for determining the adequate
compensation for moral damages that he should be awarded by reason of said accident.

The exact nature of plaintiff's injuries, their degree of seriousness and the period of his involuntary disability can
be determined by the medical certificate (Exhibit D) issued by the National Orthopedic Hospital on December
16, 1952, and the testimonies of Dr. Francisco Aguilar, physician in said hospital, and of Dr. Modesto Purisima,
a private practitioner. The medical certificate (Exhibit D) lists: (a) a subluxation of the right shoulder joint; (b)
a contusion on the right chest; and (c) a "suspicious fracture" of the upper end of the right humerus. Dr. Aguilar
who issued the medical certificate admitted, however, with regard to the "suspicious fracture", that in his opinion
with (the aid of) the x-ray there was no fracture. According to this doctor plaintiff went to the National 0rthopedic
Hospital at least six times during the period from December 16, 1952, to April 7, 1953; that he strapped plaintiffs
body (see Exhibit E), which strap was not removed until after a period of six weeks had elapsed Dr. Modesto
Purisima, a private practitioner, testified that he advised and treated plaintiff from, December 14, 1952, to the
end of March (1953). Plaintiff was never hospitalized for treatment of the injuries he received in said accident.

Counsel for the defendant delves quite extensively on these injuries. He says in his brief the following:

Just what is a subluxation? Luxation is another term for dislocation (Dorland, W.A.N., The American Illustrated
Medical Dictionary (13th ed.), p. 652), and hence, a sublaxation is an incomplete or partial dislocation (Ibid., p.
1115). While a dislocation is the displacement of a bone or bones from its or their normal setting (and, therefore,
applicable and occurs only to joints and not to rigid or non-movable parts of the skeletal system) (Ibid., p. 358;
Christopher, F., A Textbook of Surgery (5th ed.), p. 342), it should be distinguished from a fracture which is a
break or rupture in a bone or cartilage, usually due to external violence (Christopher, F., A Textbook of Surgery
(5th Ed.) p. 194; Dorland, W.A.N., The American Illustrated Medical Dictionary (13th ed.), P.459). Because,
unlike fracture which may be partial (a crack in the bone) or total (a complete break in the bone), there can be
no half-way situations with regard to dislocations of the shoulder joint (the head or ball of the humerus the
humerus is the bone from the elbow to the shoulder) must be either inside the socket of the scapula or shoulder
blade (in which case there is no dislocation) or out of the latter (in which event there is a dislocation), to denote
a condition where due to external violence, the muscles and ligaments connecting the humerus to the scapula
have subjected to strain intense enough to produce temporary distention or lessening of their tautness and
consequently resulting in the loosening or wrenching of the ball of the humerus from its snug fit in the socket of
the scapula, by using the terms subluxation or partial dislocation(as used in the medical certificate), is to fall into
a misnomer a term often used by "chiropractors" and by those who would want to sound impressive, but
generally unfavored by the medical profession. To describe the above condition more aptly, the medical

34
profession usually employs the expression luxatio imperfecta, or, in simple language, a sprain (Dorland, W.A.N.,
The American Illustrated Medical Dictionary (13th ed.), p. 652). The condition we have described is a paraphrase
of the definition of a sprain. Plaintiff suffered this very injury (a sprained or wrenched shoulder joint) and a cursory
scrutiny of his x-ray plates (Exhibits A and B) by a qualified orthopedic surgeon or by a layman with a picture or
x-ray plate of a normal shoulder joint (found in any standard textbook on human anatomy; the one we used was
Schemer, J.P., Morris' Human Anatomy (10 ed., p. 194) for comparison will bear out our claim.

Treatment for a sprain is by the use of adhesive or elastic bandage, elevation of the joint, heat, effleurage and
later massage (Christopher, F., A Textbook of Surgery (5th ed., p. 116). The treatment given to the plaintiff was
just exactly that Dr. Aguilar bandaged (strapped) plaintiff's right shoulder and chest (t.s.n., p. 31) in an elevated
position (with the forearm horizontal to the chest (see photograph, Exhibit E), and certain vitamins were
prescribed for him (t.s.n., p. 131). He also underwent massage for some time by Drs. Aguilar and Purisima. The
medicines and appurtenances to treatment purchased by plaintiff from the Orthopedic Hospital, Botica Boie and
Metro Drug Store were, by his own admission, adhesive plaster, bandage, gauze, oil and "tintura arnica" (t.s.n.,
p. 3 continuation of transcript ), and Dr. Purisima also prescribed "Numotizin", a beat generating ointment
(t.s.n., p. 23), all of which are indicated for a sprain, and by their nature, can cure nothing more serious than a
sprain anyway. Fractures and true dislocations cannot be cured by the kind of treatment and medicines which
plaintiff received. A true dislocation, for instance, is treated by means of reduction through traction of the arm
until the humeral head returns to the proper position in the scapular socket (pulling the arm at a 60 degree angle
and guiding the ball of the humerus into proper position, in its socket) while the patient is under deep anaesthesia,
and then, completely immobilizing the part until the injured capsule has healed (Christopher, F., A Textbook of
Surgery, pp. 343 and 344). No evidence was submitted that plaintiff ever received the latter kind of treatment.
Dr. Purisima even declared that after the plaintiff's first visit to the Orthopedic Hospital the latter informed him
that there was no fracture or dislocation (t.s.n., p. 26). Dr. Purisima's statement is the truth of the matter as we
have already explained joints of the shoulder being only subject to total dislocation (due to their anatomical
design), not to partial ones, and any injury approximating dislocation but not completely, it being classified as
mere sprains, slight or bad.

The second and last injury plaintiff sustained was a contusion. What is a contusion? It is just a high flown
expression for a bruise or the act of bruising (Dorland, W.A.N., The American Illustrated Medical Dictionary (13th
ed. p. 290). No further discussion need be made on this particular injury since the nature of a bruise is of common
knowledge (it's a bit uncomfortable but not disabling unless it occurs on movable parts like the fingers or elbow
which is not the case, herein having occurred in the right chest) and the kind of medical treatment or help it is
also well known. (pp. 10-14, defendant-appellant's brief).

The trial Judge undoubtedly did not give much value to the testimonies of the doctors when in the statement of
facts made in his decision he referred to the physical injuries received by the plaintiff as slight in nature and the
latter is estopped from discussing the same in order to make them appear as serious, because in the statement
of facts made in his brief as appellant, he says the following:

The facts of the case as found by the lower court in its decision, with the permission of this Honorable Court, we
respectfully quote them hereunder as our STATEMENT OF FACTS for the purpose of this appeal.

Before entering into a discussion of the merits of plaintiff's appeal, We will say a few words as to the nature of
the action on which his demand for damages is predicated.

The nature of an action as in contract or in tort is determined from the essential elements of the complaint, taken
as a whole, in the case of doubt a construction to sustain the action being given to it.

While the prayer for relief or measure of damages sought does not necessarily determine the character of the
action, it may be material in the determination of the question and therefore entitled to consideration and in case
of doubt will open determine character of the action and indeed there are actions whose character is necessarily
determined thereby. (1 C.J.S. 1100)

35
A mere perusal of plaintiff complaint will show that his action against the defendant is predicated on an alleged
breach of contract of carriage, i.e., the failure of the defendant to bring him "safely and without mishaps" to his
destination, and it is to be noted that the chauffeur of defendant's taxicab that plaintiff used when he received
the injuries involved herein, Gregorio Mira, has not even been made a party defendant to this case.

Considering, therefore, the nature of plaintiff's action in this case, is he entitled to compensation for moral
damages? Article 2219 of the Civil Code says the following:

ART. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

xxx xxx xxx

Of the cases enumerated in the just quoted Article 2219 only the first two may have any bearing on the case at
bar. We find, however, with regard to the first that the defendant herein has not committed in connection with
this case any "criminal offense resulting in physical injuries". The one that committed the offense against the
plaintiff is Gregorio Mira, and that is why he has been already prosecuted and punished therefor. Although (a)
owners and managers of an establishment or enterprise are responsible for damages caused by their employees
in the service of the branches in which the latter are employed or on the occasion of their functions; (b) employers
are likewise liable for damages caused by their employees and household helpers acting within the scope of
their assigned task (Article 2180 of the Civil Code); and (c) employers and corporations engaged in any kind of
industry are subsidiarily civilly liable for felonies committed by their employees in the discharge of their duties
(Art. 103, Revised Penal Code), plaintiff herein does not maintain this action under the provisions of any of the
articles of the codes just mentioned and against all the persons who might be liable for the damages caused,
but as a result of an admitted breach of contract of carriage and against the defendant employer alone. We,
therefore, hold that the case at bar does not come within the exception of paragraph 1, Article 2219 of the Civil
Code.

The present complaint is not based either on a "quasi delict causing physical injuries" (Art. 2219 par. 2, of the
Civil Code). From the report of the Code Commission on the new Civil Code We copy the following:

A question of nomenclature confronted the Commission. After a careful deliberation, it was agreed to use the
term "quasi-delict" for those obligations which do not arise from law, contracts quasi-contracts or criminal
offenses. They are known in Spanish legal treatises as "culpa aquiliana", "culpa-extra-contractual" or "cuasi-
36
delitos". The phrase "culpa-extra-contractual" or its translation "extra-contractual fault" was eliminated because
it did not exclude quasi-contractual or penal obligations. "Aquilian fault" might have been selected, but it was
thought inadvisable to refer to so ancient a law as the "Lex Aquilia". So "quasi-delicts" was chosen, which more
nearly corresponds to the Roman Law classification of obligations, and is in harmony with the nature of this kind
of liability.

The Commission also thought of the possibility of adopting the word "tort" from Anglo-American Law. But "tort"
under that system is much broader than the Spanish-Philippine concept of obligations arising from non-
contractual negligence." "Tort" in Anglo-American jurisprudence includes not only negligence, but also intentional
criminal acts, such as assault and battery, false imprisonment and deceit. In the general plan of the Philippine
legal system, intentional and malicious are governed by the Penal Code, although certain exceptions are made
in the Project. (Report of the Code Commission, pp. 161-162).

In the case of Cangco vs. Manila Railroad, 38 Phil. 768, We established the distinction between obligation
derived from negligence and obligation as a result of a breach of a contract. Thus, We said:

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that
the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that
contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability
is direct and immediate, differing essentially in the legal view point from that presumptive responsibility for the
negligence of its servants, imposed by Article 1903 of the Civil Code (Art. 2180 of the new), which can be rebutted
by proof of the exercise of due care in their selection or supervision. Article 1903 is not applicable to obligation
arising EX CONTRACTU, but only to extra-contractual obligations or to use the technical form of expression,
that article, relates only to CULPA AQUILIANA and not to CULPA CONTRACTUAL.

The decisions in the cases of Castro vs. Acro Taxicab (82 Phil., 359, 46 Off. Gaz., Na. 5, p. 2023); Lilius et al.
vs. Manila Railroad, (59 Phil. 758) and others, wherein moral damages, are awarded to the plaintiffs, are not
applicable to the case at bar because said decisions were rendered before the effectivity of the new Civil Code
(August 30, 1950) and for the further reason that the complaints filed therein were based on different causes of
action.

In view of the foregoing the sum of P2,000 awarded as moral damages by the trial Court has to be eliminated,
for under the law it is not a compensation awardable in a case like the one at bar.

As to plaintiff's demand for P5,000 as attorney's fees, the Civil Code provides the following:

ART, 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs,
cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident had faith in refusing to satisfy the plaintiff's plainly valid,
just and demandable claim;

(6) In actions for legal support;

37
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) in actions for indemnity under workmen's compensation and employers liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of
litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

The present case does not come under any of exceptions enumerated in the preceding article, specially of
paragraph 2 thereof, because defendant's failure to meet its responsibility was not the plaintiff to litigate or to
incur expenses to protect his interests. The present action was instituted because plaintiff an exorbitant amount
for damages (P60,000) and naturally the defendant did not and could not yield to such demand. This is neither
a case that comes under paragraph 11 of Article 2208 because the Lower Court did not deem it just and equitable
to award any amount for attorney's fees. As We agree with the trial Judge on this point, We cannot declare that
he erred for not awarding to plaintiff any such fees in this case.

Coming now to the appeal of the defendant, the Court, after due consideration of the evidence appearing on
record:

(1) Approves the award of P700 for medicine, doctors' fees and transportation expenses;

(2) Reduces the award of P3,000 as attorney's fees to the sum of P2,000, as Manolo Maddela, defendant in
Criminal Case No. 364 of the Court of First Instance of Nueva Vizcaya testified that he has already paid to
plaintiff part of the latter's fees of P3,000, the amount of which was not disclosed, though it was incumbent
upon the plaintiff to establish how much he had been paid of said fees;

(3) Approves the award of P200 as unearned professional fees as attorney for the defendant in Civil Case No.
238191 of the Municipal Court of Manila whom plaintiff was unable to represent, and for the latter's failure to
take the deposition of one Agripina Angrepan due to the automobile accident referred to in this case.

Before closing this decision We deem it convenient to quote the following passage of defendant's brief as
appellant:

Realizing its obligation under its contract of carriage with the plaintiff, and because the facts of the case, as have
been shown, mark it as more proper for the Municipal Court only, the defendant, to avoid the expense and time
of litigation, offered to settle the case amicably with plaintiff, but the latter refused and insisted on his demand
for P72,050.20 (Exhibit K) as the only basis for settlement, thus adding a clearly petty case to the already
overflowing desk of the Honorable Members of this Court.

We admire and respect at all times a man for standing up and fighting for his rights, and when said right consists
in injuries sustained due to a breach of a contract of carriage with us, sympathy and understanding are added
thereto. But when a person starts demanding P72,050.20 for a solitary bruise and sprain, injuries for which the
trial court, even at its generous although erroneous best, could only grant P5,900, then respect and sympathy
give way to something else. It is time to fight, for, in our humble opinion, there is nothing more loathsome nor
truly worthy of condemnation than one who uses his injuries for other purposes than just rectification. If plaintiff's
claim is granted, it would be a blessing, not a misfortune, to be injured. (p. 34-35)

38
This case was instituted by a lawyer who, as an officer of the courts, should be the first in helping Us in the
administration of justice, and after going over the record of this case, we do not hesitate to say that the demand
of P72,050.20 for a subluxation of the right humerus bone and an insignificant contusion in the chest, has not
even the semblance of reasonableness. As a matter of fact, Dr. Aguilar himself said that the x-ray plates (Exhibits
A, Band C) " did not show anything significant except that it shows a slight subluxation of the right shoulder, and
that there is a suspicious fracture", which ultimately he admitted not to exist. The plaintiff himself must have felt
embarrassed by his own attitude when after receiving defendant's brief as appellant, he makes in his brief as
appellee the categorical statement that he DOES NOT NOW INSIST NOR PRETEND IN THE LEAST to Collect
from the defendant all the damages he had claimed in his complaint, but instead he is submitting his case to the
sound discretion of the Honorable Court for the award of a reasonable and equitable damages allowable by law,
to compensate the plaintiff of the suffering and losses he had undergone and incurred of the accident oftentimes
mentioned in this brief in which plaintiff was injured" (p. 17-18).This acknowledgment comes too late, for plaintiff
has already deprived the Court of Appeals of the occasion to exercise its appellate jurisdiction over this case
which he recklessly dumped to this Court. We certainly cannot look with at favor at his attitude of plaintiff.

WHEREFORE, the decision appealed from is hereby modified by reducing the amount awarded as professional
fees from P3,000 to P2,000 and by eliminating the moral damages of P2,000 awarded by the Lower Court to the
plaintiff. Said decision is in all other respects affirmed, without pronouncement as to costs. It is so ordered.

G.R. No. L-10605 June 30, 1958

PRECILLANO NECESITO, ETC., plaintiff-appellant,

vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.

x---------------------------------------------------------x

G.R. No. L-10606 June 30, 1958

GERMAN NECESITO, ET AL., plaintiffs-appellants,

vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.

Tomas Besa and Federico Agrava for appellants.

Jose W. Diokno for appellees.

REYES, J. B. L., J.:

These cases involve ex contractu against the owners and operators of the common carrier known as Philippine
Rabbit Bus Lines, filed by one passenger, and the heirs of another, who injured as a result of the fall into a river
of the vehicle in which they were riding.

In the morning of January 28, 1964, Severina Garces and her one-year old son, Precillano Necesito, carrying
vegetables, boarded passenger auto truck or bus No. 199 of the Philippine Rabbit Bus Lines at Agno,
Pangasinan. The passenger truck, driven by Francisco Bandonell, then proceeded on its regular run from Agno
to Manila. After passing Mangatarem, Pangasinan truck No. 199 entered a wooden bridge, but the front wheels
swerved to the right; the driver lost control, and after wrecking the bridge's wooden rails, the truck fell on its right
side into a creek where water was breast deep. The mother, Severina Garces, was drowned; the son, Precillano
Necesito, was injured, suffering abrasions and fracture of the left femur. He was brought to the Provincial Hospital
at Dagupan, where the fracture was set but with fragments one centimeter out of line. The money, wrist watch
and cargo of vegetables were lost.

39
Two actions for damages and attorney's fees totalling over P85,000 having been filed in the Court of First
Instance of Tarlac (Cases Nos. 908 and 909) against the carrier, the latter pleaded that the accident was due to
"engine or mechanical trouble" independent or beyond the control of the defendants or of the driver Bandonell.

After joint trial, the Court of First Instance found that the bus was proceeding slowly due to the bad condition of
the road; that the accident was caused by the fracture of the right steering knuckle, which was defective in that
its center or core was not compact but "bubbled and cellulous", a condition that could not be known or ascertained
by the carrier despite the fact that regular thirty-day inspections were made of the steering knuckle, since the
steel exterior was smooth and shiny to the depth of 3/16 of an inch all around; that the knuckles are designed
and manufactured for heavy duty and may last up to ten years; that the knuckle of bus No. 199 that broke on
January 28, 1954, was last inspected on January 5, 1954, and was due to be inspected again on February 5th.
Hence, the trial court, holding that the accident was exclusively due to fortuitous event, dismissed both actions.
Plaintiffs appealed directly to this Court in view of the amount in controversy.

We are inclined to agree with the trial court that it is not likely that bus No. 199 of the Philippine Rabbit Lines was
driven over the deeply rutted road leading to the bridge at a speed of 50 miles per hour, as testified for the
plaintiffs. Such conduct on the part of the driver would have provoked instant and vehement protest on the part
of the passengers because of the attendant discomfort, and there is no trace of any such complaint in the records.
We are thus forced to assume that the proximate cause of the accident was the reduced strength of the steering
knuckle of the vehicle caused by defects in casting it. While appellants hint that the broken knuckle exhibited in
court was not the real fitting attached to the truck at the time of the accident, the records they registered no
objection on that ground at the trial below. The issue is thus reduced to the question whether or not the carrier
is liable for the manufacturing defect of the steering knuckle, and whether the evidence discloses that in regard
thereto the carrier exercised the diligence required by law (Art. 1755, new Civil Code).

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for the all the circumstances.

It is clear that the carrier is not an insurer of the passengers' safety. His liability rests upon negligence, his failure
to exercise the "utmost" degree of diligence that the law requires, and by Art. 1756, in case of a passenger's
death or injury the carrier bears the burden of satisfying the court that he has duly discharged the duty of
prudence required. In the American law, where the carrier is held to the same degree of diligence as under the
new Civil Code, the rule on the liability of carriers for defects of equipment is thus expressed: "The preponderance
of authority is in favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury
resulting from a defect in an appliance purchased from a manufacturer, whenever it appears that the defect
would have been discovered by the carrier if it had exercised the degree of care which under the circumstances
was incumbent upon it, with regard to inspection and application of the necessary tests. For the purposes of this
doctrine, the manufacturer is considered as being in law the agent or servant of the carrier, as far as regards the
work of constructing the appliance. According to this theory, the good repute of the manufacturer will not relieve
the carrier from liability" (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. vs. Roy, 102 U. S. 451; 20 L.
Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E
929).

The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier
in the selection and use of the equipment and appliances in use by the carrier. Having no privity whatever with
the manufacturer or vendor of the defective equipment, the passenger has no remedy against him, while the
carrier usually has. It is but logical, therefore, that the carrier, while not in insurer of the safety of his passengers,
should nevertheless be held to answer for the flaws of his equipment if such flaws were at all discoverable. Thus
Hannen, J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:

In the ordinary course of things, the passenger does not know whether the carrier has himself manufactured the
means of carriage, or contracted with someone else for its manufacture. If the carrier has contracted with
someone else the passenger does not usually know who that person is, and in no case has he any share in the
selection. The liability of the manufacturer must depend on the terms of the contract between him and the carrier,
40
of which the passenger has no knowledge, and over which he can have no control, while the carrier can introduce
what stipulations and take what securities he may think proper. For injury resulting to the carrier himself by the
manufacturer's want of care, the carrier has a remedy against the manufacturer; but the passenger has no
remedy against the manufacturer for damage arising from a mere breach of contract with the carrier . . . . Unless,
therefore, the presumed intention of the parties be that the passenger should, in the event of his being injured
by the breach of the manufacturer's contract, of which he has no knowledge, be without remedy, the only way in
which effect can be given to a different intention is by supposing that the carrier is to be responsible to the
passenger, and to look for his indemnity to the person whom he selected and whose breach of contract has
caused the mischief. (29 ALR 789)

And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS) 790, 16 Ann. Cas. 608, the Court,
in holding the carrier responsible for damages caused by the fracture of a car axle, due to a "sand hole" in the
course of moulding the axle, made the following observations.

The carrier, in consideration of certain well-known and highly valuable rights granted to it by the public,
undertakes certain duties toward the public, among them being to provide itself with suitable and safe cars and
vehicles in which carry the traveling public. There is no such duty on the manufacturer of the cars. There is no
reciprocal legal relation between him and the public in this respect. When the carrier elects to have another build
its cars, it ought not to be absolved by that facts from its duty to the public to furnish safe cars. The carrier cannot
lessen its responsibility by shifting its undertaking to another's shoulders. Its duty to furnish safe cars is side by
side with its duty to furnish safe track, and to operate them in a safe manner. None of its duties in these respects
can be sublet so as to relieve it from the full measure primarily exacted of it by law. The carrier selects the
manufacturer of its cars, if it does not itself construct them, precisely as it does those who grade its road, and
lay its tracks, and operate its trains. That it does not exercise control over the former is because it elects to place
that matter in the hands of the manufacturer, instead of retaining the supervising control itself. The manufacturer
should be deemed the agent of the carrier as respects its duty to select the material out of which its cars and
locomotive are built, as well as in inspecting each step of their construction. If there be tests known to the crafts
of car builders, or iron moulders, by which such defects might be discovered before the part was incorporated
into the car, then the failure of the manufacturer to make the test will be deemed a failure by the carrier to make
it. This is not a vicarious responsibility. It extends, as the necessity of this business demands, the rule of
respondeat superior to a situation which falls clearly within its scope and spirit. Where an injury is inflicted upon
a passenger by the breaking or wrecking of a part of the train on which he is riding, it is presumably the result of
negligence at some point by the carrier. As stated by Judge Story, in Story on Bailments, sec. 601a: "When the
injury or damage happens to the passenger by the breaking down or overturning of the coach, or by any other
accident occurring on the ground, the presumption prima facie is that it occurred by the negligence of the
coachmen, and onus probandi is on the proprietors of the coach to establish that there has been no negligence
whatever, and that the damage or injury has been occasioned by inevitable casualty, or by some cause which
human care and foresight could not prevent; for the law will, in tenderness to human life and limb, hold the
proprietors liable for the slightest negligence, and will compel them to repel by satisfactory proofs every
imputation thereof." When the passenger has proved his injury as the result of a breakage in the car or the
wrecking of the train on which he was being carried, whether the defect was in the particular car in which he was
riding or not, the burden is then cast upon the carrier to show that it was due to a cause or causes which the
exercise of the utmost human skill and foresight could not prevent. And the carrier in this connection must show,
if the accident was due to a latent defect in the material or construction of the car, that not only could it not have
discovered the defect by the exercise of such care, but that the builders could not by the exercise of the same
care have discovered the defect or foreseen the result. This rule applies the same whether the defective car
belonged to the carrier or not.

In the case now before us, the record is to the effect that the only test applied to the steering knuckle in question
was a purely visual inspection every thirty days, to see if any cracks developed. It nowhere appears that either
the manufacturer or the carrier at any time tested the steering knuckle to ascertain whether its strength was up
to standard, or that it had no hidden flaws would impair that strength. And yet the carrier must have been aware
of the critical importance of the knuckle's resistance; that its failure or breakage would result in loss of balance
and steering control of the bus, with disastrous effects upon the passengers. No argument is required to establish
41
that a visual inspection could not directly determine whether the resistance of this critically important part was
not impaired. Nor has it been shown that the weakening of the knuckle was impossible to detect by any known
test; on the contrary, there is testimony that it could be detected. We are satisfied that the periodical visual
inspection of the steering knuckle as practiced by the carrier's agents did not measure up to the required legal
standard of "utmost diligence of very cautious persons" "as far as human care and foresight can provide", and
therefore that the knuckle's failure can not be considered a fortuitous event that exempts the carrier from
responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu Autobus Co., 94 Phil., 892.)

It may be impracticable, as appellee argues, to require of carriers to test the strength of each and every part of
its vehicles before each trip; but we are of the opinion that a due regard for the carrier's obligations toward the
traveling public demands adequate periodical tests to determine the condition and strength of those vehicle
portions the failure of which may endanger the safe of the passengers.

As to the damages suffered by the plaintiffs, we agree with appellee that no allowance may be made for moral
damages, since under Article 2220 of the new Civil Code, in case of suits for breach of contract, moral damages
are recoverable only where the defendant acted fraudulently or in bad faith, and there is none in the case before
us. As to exemplary damages, the carrier has not acted in a "wanton, fraudulent, reckless, oppressive or
malevolent manner" to warrant their award. Hence, we believe that for the minor Precillano Necesito (G. R. No.
L-10605), an indemnity of P5,000 would be adequate for the abrasions and fracture of the femur, including
medical and hospitalization expenses, there being no evidence that there would be any permanent impairment
of his faculties or bodily functions, beyond the lack of anatomical symmetry. As for the death of Severina Garces
(G. R. No. L-10606) who was 33 years old, with seven minor children when she died, her heirs are obviously
entitled to indemnity not only for the incidental loses of property (cash, wrist watch and merchandise) worth P394
that she carried at the time of the accident and for the burial expenses of P490, but also for the loss of her
earnings (shown to average P120 a month) and for the deprivation of her protection, guidance and company. In
our judgment, an award of P15,000 would be adequate (cf Alcantara vs. Surro, 49 Off. Gaz. 2769; 93 Phil., 472).

The low income of the plaintiffs-appellants makes an award for attorney's fees just and equitable (Civil Code,
Art. 2208, par. 11). Considering that he two cases filed were tried jointly, a fee of P3,500 would be reasonable.

In view of the foregoing, the decision appealed from is reversed, and the defendants-appellees are sentenced
to indemnify the plaintiffs-appellants in the following amounts: P5,000 to Precillano Necesito, and P15,000 to the
heirs of the deceased Severina Garces, plus P3,500 by way of attorney's fees and litigation expenses. Costs
against defendants-appellees. So ordered.

Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, and Endencia, JJ., concur.

Felix, J., concurs in the result.

RESOLUTION

September 11, 1958

REYES, J. B. L., J.:

Defendants-appellees have Submitted a motion asking this Court to reconsider its decision of June 30, 1958,
and that the same be modified with respect to (1) its holding the carrier liable for the breakage of the steering
knuckle that caused the autobus No. 199 to overturn, whereby the passengers riding in it were injured; (2) the
damages awarded, that appellees argue to be excessive; and (3) the award of attorneys' fees.

42
(1) The rule prevailing in this jurisdiction as established in previous decisions of this Court, cited in our main
opinion, is that a carrier is liable to its passengers for damages caused by mechanical defects of the
conveyance. As early as 1924, in Lasam vs. Smith, 45 Phil. 659 this Court ruled:

As far as the record shows, the accident was caused either by defects in the automobile or else through
the negligence of its driver. That is not caso fortuito.

And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court held a common carrier liable in damages to
passenger for injuries cause by an accident due to the breakage of a faulty drag-link spring.

It can be seen that while the courts of the United States are at variance on the question of a carrier's liability for
latent mechanical defects, the rule in this jurisdiction has been consistent in holding the carrier responsible.
This Court has quoted from American and English decisions, not because it felt bound to follow the same, but
merely in approval of the rationale of the rule as expressed therein, since the previous Philippine cases did not
enlarge on the ideas underlying the doctrine established thereby.

The new evidence sought to be introduced do not warrant the grant of a new trial, since the proposed proof
available when the original trial was held. Said evidence is not newly discovered.

(2) With regard to the indemnity awarded to the child Precilliano Necesito, the injuries suffered by him are
incapable of accurate pecuniary estimation, particularly because the full effect of the injury is not ascertainable
immediately. This uncertainty, however, does not preclude the right to an indemnity, since the injury is patent
and not denied (Civil Code, Art. 2224). The reasons behind this award are expounded by the Code
Commission in its report:

There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although
the court is convinced that there has been such loss. For instance, injury to one's commercial credit or to the
goodwill of a business firm is often hard to show with certainty in terms of money. Should damages be denied
for that reason? The judge should be empowered to calculate moderate damages in such cases, rather than that
the plaintiff should suffer, without redress, from the defendant's wrongful act." (Report of the Code Commission,
p. 75)

In awarding to the heirs of the deceased Severina Garces an indemnity for the loss of her "guidance, protection
and company," although it is but moral damage, the Court took into account that the case of a passenger who
dies in the course of an accident, due to the carrier's negligence constitutes an exception to the general rule.
While, as pointed out in the main decision, under Article 2220 of the new Civil Code there can be no recovery of
moral damages for a breach of contract in the absence of fraud malice or bad faith, the case of a violation of the
contract of carriage leading to a passenger's death escapes this general rule, in view of Article 1764 in connection
with Article 2206, No. 3 of the new Civil Code.

ART. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this
Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of
contract by a comman carrier. ART. 2206. . . .

(3) The spouse, legitimate and eligimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.

Being a special rule limited to cases of fatal injuries, these articles prevail over the general rule of Art. 2220.
Special provisions control general ones (Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancio vs. Lizarraga, 55 Phil.
601).

It thus appears that under the new Civil Code, in case of accident due to a carrier's negligence, the heirs of a
deceased passenger may recover moral damages, even though a passenger who is injured, but manages to
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survive, is not entitled to them. There is, therefore, no conflict between our main decision in the instant case and
that of Cachero vs. Manila Yellow Taxi Cab Co., 101 Phil., 523, where the passenger suffered injuries, but did
not lose his life.

(3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiff because the litigation arose
out of his exaggerated and unreasonable deeds for an indemnity that was out of proportion with the
compensatory damages to which he was solely entitled. But in the present case, plaintiffs' original claims can
not be deemed a priori wholly unreasonable, since they had a right to indemnity for moral damages besides
compensatory ones, and moral damages are not determined by set and invariable bounds.

Neither does the fact that the contract between the passengers and their counsel was on a contingent basis
affect the former's right to counsel fees. As pointed out for appellants, the Court's award is an party and not to
counsel. A litigant who improvidently stipulate higher counsel fees than those to which he is lawfully entitled,
does not for that reason earn the right to a larger indemnity; but, by parity of reasoning, he should not be deprived
of counsel fees if by law he is entitled to recover them.

We find no reason to alter the main decision heretofore rendered. Ultimately, the position taken by this Court is
that a common carrier's contract is not to be regarded as a game of chance wherein the passenger stakes his
limb and life against the carrier's property and profits.

Wherefore, the motion for reconsideration is hereby denied. So ordered.

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