Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7664 August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.

Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers
that his death was caused by his own negligence or by unavoidable accident. Defendant also avers
that it had exercised due diligence in the selection of, and supervision over, its employees and that it
had observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman,
Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20
for children is charged. The main pool it between two small pools of oval shape known as the
"Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of
the water at different parts are indicated by appropriate marks on the wall. The care and supervision
of the pools and the users thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving
course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator.
There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary inspector ready to administer injections or operate
the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in
an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the
bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the
pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from 8:00
to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30
a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abao was going around the pools to observe the bathers
in compliance with the instructions of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of
Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abao of the same happening and Abao immediately jumped into the
big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom.
The body was placed at the edge of the pool and Abao immediately applied manual artificial
respiration. Soon after, male nurse Armando Rule came to render assistance, followed by sanitary
inspector Iluminado Vicente who, after being called by phone from the clinic by one of the security
guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he
injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr.
Ayuyao from the University of the Philippines. Meanwhile, Abao continued the artificial manual
respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen
tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the
same became of no use because he found the boy already dead. The doctor ordered that the body
be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department
of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los
Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the
deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with
fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and
brownish fluid in the stomach. The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The
first article provides that "whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict.
Under the second article, this obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or
by implication invited are legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of making them reasonably safe
for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without the fault of the patron, he is not, however, in
any sense deemed to be the insurer of the safety of patrons. And the death of a patron within
 his premises does not cast upon him the burden of excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co.,
161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could
be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium,
where it appeared merely that he was lastly seen alive in water at the shallow end of the
pool, and some ten or fifteen minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be
observed is that the person claiming damages has the burden of proving that the damage is caused
by the fault or negligence of the person from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question
then that arises is: Have appellants established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for damages for the death of Dominador
Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not placing at the swimming pools efficient and
competent employees who may render help at a moment's notice, and they ascribed such
negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was
not available or was attending to something else with the result that his help came late. Thus,
appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abao did not immediately
respond to the alarm and it was only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving the body from the water. This
negligence of Abao, they contend, is attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is
belied by the written statements given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the happening of the accident. Thus,
these two boys admitted in the investigation that they narrated in their statements everything they
knew of the accident, but, as found by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a
comic magazine when the alarm was given for which reason he failed to immediately respond to the
alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard
heard the shouts for help, the latter immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial court made this conclusion: "The
testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to
immediately respond to their callmay therefore be disregarded because they are belied by their
written statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy,
toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is
painted with black colors so as to insure clear visibility. There is on display in a conspicuous place
within the area certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in
such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a
male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are
security guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the pool,
the employees of appellee did everything possible to bring him back to life. Thus, after he was
placed at the edge of the pool, lifeguard Abao immediately gave him manual artificial respiration.
Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who
brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal,
the inspector immediately injected him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while
all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines
who however came late because upon examining the body he found him to be already dead. All of
the foregoing shows that appellee has done what is humanly possible under the circumstances to
restore life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to be
blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply considering that the record does not show how minor
Ong came into the big swimming pool. The only thing the record discloses is that minor Ong
informed his elder brothers that he was going to the locker room to drink a bottle of coke but that
from that time on nobody knew what happened to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable
care and prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances, the law is that a person who has the last clear chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior
negligence of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that he
went there without any companion in violation of one of the regulations of appellee as regards the
use of the pools, and it appearing that lifeguard Aba__o responded to the call for help as soon as
his attention was called to it and immediately after retrieving the body all efforts at the disposal of
appellee had been put into play in order to bring him back to life, it is clear that there is no room for
the application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand
after the peril is or should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find supported
by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in
so doing he might have hit or bumped his forehead against the bottom of the pool, as a
consequence of which he was stunned, and which to his drowning. As a boy scout he must have
received instructions in swimming. He knew, or have known that it was dangerous for him to dive in
that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano,
deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.

Cruz & Avecilla for appellants.

Marvin R. Hill & Associates for appellees.

BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil
Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of
defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a
minor, married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he
was living and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named
Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground
that his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

1. The present action is not only against but a violation of section 1, Rule 107, which
is now Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-
adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he
was relieved as guardian of the other defendant through emancipation by marriage.
 (P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of
such denial, reiterating the above grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14,
1965 and after thoroughly examining the arguments therein contained, the Court
finds the same to be meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered

by ordering the dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on
Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution
the following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE

CLAIM OF DEFENDANTS THAT -

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF

SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT,
AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR

RES-ADJUDICTA;

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL

CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT

MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance of
Quezon City. After due trial, he was acquitted on the ground that his act was not criminal because of
"lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has favored Us with a
copy of the decision of acquittal, presumably because appellants do not dispute that such indeed
was the basis stated in the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the
appellees filed the motion to dismiss above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case
wherein the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald,
though a minor, living with and getting subsistenee from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of
the dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly
established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated,
on the basis of a scholarly dissertation by Justice Bocobo on the nature of culpa aquilianain relation
to culpa criminal or delito and mere culpaor fault, with pertinent citation of decisions of the Supreme
Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same
given act can result in civil liability not only under the Penal Code but also under the Civil Code.
Thus, the opinion holds:

The, above case is pertinent because it shows that the same act machinist. come
under both the Penal Code and the Civil Code. In that case, the action of the agent
killeth unjustified and fraudulent and therefore could have been the subject of a
criminal action. And yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the employer and not
the employee who was being sued. (pp. 615-616, 73 Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in
a criminal case because his negligence causing the death of the child was
punishable by the Penal Code. Here is therefore a clear instance of the same act of
negligence being a proper subject matter either of a criminal action with its
consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code.
Thus, in this jurisdiction, the separate individuality of acuasi-delito or culpa aquiliana,
under the Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and convicted in
a criminal case and for which, after such a conviction, he could have been sued for
this civil liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902
of the Civil Code. It is thus that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only punished but also made civilly
liable because of his criminal negligence, nevertheless this Court awarded damages in
an independent civil action for fault or negligence under article 1902 of the Civil Code. (p.
618, 73 Phil.) 3

The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines that
have been little understood, in the past, it might not he inappropriate to indicate their
foundations.
 Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also
simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code
refer only to fault or negligence not punished by law, accordingly to the literal import
of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have
very little scope and application in actual life. Death or injury to persons and damage
to property- through any degree of negligence - even the slightest - would have to be
Idemnified only through the principle of civil liability arising from a crime. In such a
state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are
loath to impute to the lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will not use the literal meaning of
the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.

Secondary, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to 1910 of the Civil
Code. Otherwise. there would be many instances of unvindicated civil wrongs. "Ubi
jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal Code and
the Civil Code on this subject, which has given rise to the overlapping or concurrence
of spheres already discussed, and for lack of understanding of the character and
efficacy of the action for culpa aquiliana, there has grown up a common practice to
seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by, our laws, it has nevertheless
rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are
asked to help perpetuate this usual course. But we believe it is high time we pointed
out to the harms done by such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for the better safeguarding or
private rights because it realtor, an ancient and additional remedy, and for the further
reason that an independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party wronged or his
counsel, is more likely to secure adequate and efficacious redress. (p. 621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from
the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would
reveal that the thrust of the pronouncements therein is not so limited, but that in fact it actually
extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the
Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a
negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the underline qualification, "not punishable by law",
that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of
the law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the
literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or quasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be
noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, 11
not punishable by law," thereby making it clear that the concept of culpa aquiliana includes acts
which are criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says,
"Obligations derived from quasi-delicto shall be governed by the provisions of Chapter 2, Title XVII of
this Book, (onquasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of the
new code provides:

ART. 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana" or
quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence and "culpa extracontractual" or
"cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable
doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal
negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a
double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same
argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that
which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely
establishes the separability and independence of liability in a civil action for acts criminal in character
(under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the
Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice,
and more in harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs.
Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to
"fault or negligencia covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for the same act considered as aquasi-
delict only and not as a crime is not estinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed by the accused. Briefly stated,
We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his
liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the
possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the conclusion of
appellees that Atty. Hill is already free from responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is,
however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really
full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate
parental authority over the child's person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or encumber real property without
the consent of his father or mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible. The father and, in
case of his death or incapacity, the mother, are responsible. The father and, in case of his death or
incapacity, the mother, are responsible for the damages caused by the minor children who live in
their company." In the instant case, it is not controverted that Reginald, although married, was living
with his father and getting subsistence from him at the time of the occurrence in question. Factually,
therefore, Reginald was still subservient to and dependent on his father, a situation which is not
unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability
of presuncion with their offending child under Article 2180 is that is the obligation of the parent to
supervise their minor children in order to prevent them from causing damage to third persons. 5 On
the other hand, the clear implication of Article 399, in providing that a minor emancipated by marriage
may not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation
does not carry with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial
action. Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to see to it
that the child, while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their consent.
(Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now of
age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.

THIRD DIVISION

[G.R. No. 150255. April 22, 2005]

SCHMITZ TRANSPORT & BROKERAGE CORPORATION, petitioner,
vs. TRANSPORT VENTURE, INC., INDUSTRIAL INSURANCE COMPANY,
LTD., and BLACK SEA SHIPPING AND DODWELL now INCHCAPE
SHIPPING SERVICES,respondents.

DECISION
CARPIO-MORALES, J.:

On petition for review is the June 27, 2001 Decision[1]of the Court of Appeals, as well as its
Resolution[2]dated September 28, 2001 denying the motion for reconsideration, which affirmed that
of Branch 21 of the Regional Trial Court (RTC) of Manila in Civil Case No. 92-63132[3] holding
petitioner Schmitz Transport Brokerage Corporation (Schmitz Transport), together with Black Sea
Shipping Corporation (Black Sea), represented by its ship agent Inchcape Shipping Inc. (Inchcape),
and Transport Venture (TVI), solidarily liable for the loss of 37 hot rolled steel sheets in coil that were
washed overboard a barge.
On September 25, 1991, SYTCO Pte Ltd. Singapore shipped from the port of Ilyichevsk, Russia
on board M/V Alexander Saveliev (a vessel of Russian registry and owned by Black Sea) 545 hot
rolled steel sheets in coil weighing 6,992,450 metric tons.
The cargoes, which were to be discharged at the port of Manila in favor of the consignee, Little
Giant Steel Pipe Corporation (Little Giant),[4] were insured against all risks with Industrial Insurance
Company Ltd. (Industrial Insurance) under Marine Policy No. M-91-3747-TIS.[5]
The vessel arrived at the port of Manila on October 24, 1991 and the Philippine Ports Authority
(PPA) assigned it a place of berth at the outside breakwater at the Manila South Harbor.[6]
Schmitz Transport, whose services the consignee engaged to secure the requisite clearances,
to receive the cargoes from the shipside, and to deliver them to its (the consignees) warehouse at
Cainta, Rizal,[7] in turn engaged the services of TVI to send a barge and tugboat at shipside.
On October 26, 1991, around 4:30 p.m., TVIs tugboat Lailani towed the barge Erika V to
shipside.[8]
By 7:00 p.m. also of October 26, 1991, the tugboat, after positioning the barge alongside the
vessel, left and returned to the port terminal.[9] At 9:00 p.m., arrastre operator Ocean Terminal
Services Inc. commenced to unload 37 of the 545 coils from the vessel unto the barge.
By 12:30 a.m. of October 27, 1991 during which the weather condition had become inclement
due to an approaching storm, the unloading unto the barge of the 37 coils was accomplished. [10] No
tugboat pulled the barge back to the pier, however.
At around 5:30 a.m. of October 27, 1991, due to strong waves, [11] the crew of the barge
abandoned it and transferred to the vessel. The barge pitched and rolled with the waves and
eventually capsized, washing the 37 coils into the sea.[12] At 7:00 a.m., a tugboat finally arrived to pull
the already empty and damaged barge back to the pier.[13]
Earnest efforts on the part of both the consignee Little Giant and Industrial Insurance to recover
the lost cargoes proved futile.[14]
 Little Giant thus filed a formal claim against Industrial Insurance which paid it the amount
ofP5,246,113.11. Little Giant thereupon executed a subrogation receipt[15] in favor of Industrial
Insurance.
Industrial Insurance later filed a complaint against Schmitz Transport, TVI, and Black Sea
through its representative Inchcape (the defendants) before the RTC of Manila, for the recovery of
the amount it paid to Little Giant plus adjustment fees, attorneys fees, and litigation expenses.[16]
Industrial Insurance faulted the defendants for undertaking the unloading of the cargoes while
typhoon signal No. 1 was raised in Metro Manila.[17]
By Decision of November 24, 1997, Branch 21 of the RTC held all the defendants negligent for
unloading the cargoes outside of the breakwater notwithstanding the storm signal.[18] The dispositive
portion of the decision reads:

WHEREFORE, premises considered, the Court renders judgment in favor of the plaintiff, ordering
the defendants to pay plaintiff jointly and severally the sum of P5,246,113.11 with interest from the
date the complaint was filed until fully satisfied, as well as the sum of P5,000.00 representing the
adjustment fee plus the sum of 20% of the amount recoverable from the defendants as attorneys
fees plus the costs of suit. The counterclaims and cross claims of defendants are hereby
DISMISSED for lack of [m]erit.[19]

To the trial courts decision, the defendants Schmitz Transport and TVI filed a joint motion for
reconsideration assailing the finding that they are common carriers and the award of excessive
attorneys fees of more than P1,000,000. And they argued that they were not motivated by gross or
evident bad faith and that the incident was caused by a fortuitous event. [20]
By resolution of February 4, 1998, the trial court denied the motion for reconsideration. [21]
All the defendants appealed to the Court of Appeals which, by decision of June 27, 2001,
affirmed in toto the decision of the trial court, [22] it finding that all the defendants were common carriers
Black Sea and TVI for engaging in the transport of goods and cargoes over the seas as a regular
business and not as an isolated transaction,[23] and Schmitz Transport for entering into a contract with
Little Giant to transport the cargoes from ship to port for a fee. [24]
In holding all the defendants solidarily liable, the appellate court ruled that each one was
essential such that without each others contributory negligence the incident would not have
happened and so much so that the person principally liable cannot be distinguished with sufficient
accuracy.[25]
In discrediting the defense of fortuitous event, the appellate court held that although defendants
obviously had nothing to do with the force of nature, they however had control of where to anchor
the vessel, where discharge will take place and even when the discharging will commence. [26]
The defendants respective motions for reconsideration having been denied by Resolution[27]of
September 28, 2001, Schmitz Transport (hereinafter referred to as petitioner) filed the present
petition against TVI, Industrial Insurance and Black Sea.
Petitioner asserts that in chartering the barge and tugboat of TVI, it was acting for its principal,
consignee Little Giant, hence, the transportation contract was by and between Little Giant and TVI. [28]
 By Resolution of January 23, 2002, herein respondents Industrial Insurance, Black Sea, and TVI
were required to file their respective Comments.[29]
By its Comment, Black Sea argued that the cargoes were received by the consignee through
petitioner in good order, hence, it cannot be faulted, it having had no control and supervision
thereover.[30]
For its part, TVI maintained that it acted as a passive party as it merely received the cargoes
and transferred them unto the barge upon the instruction of petitioner.[31]
In issue then are:
(1) Whether the loss of the cargoes was due to a fortuitous event, independent of any act of
negligence on the part of petitioner Black Sea and TVI, and
(2) If there was negligence, whether liability for the loss may attach to Black Sea, petitioner and
TVI.
When a fortuitous event occurs, Article 1174 of the Civil Code absolves any party from any and
all liability arising therefrom:

ART. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which though foreseen, were inevitable.

In order, to be considered a fortuitous event, however, (1) the cause of the unforeseen and
unexpected occurrence, or the failure of the debtor to comply with his obligation, must be
independent of human will; (2) it must be impossible to foresee the event which constitute the caso
fortuito, or if it can be foreseen it must be impossible to avoid; (3) the occurrence must be such as
to render it impossible for the debtor to fulfill his obligation in any manner; and (4) the obligor must
be free from any participation in the aggravation of the injury resulting to the creditor.[32]

[T]he principle embodied in the act of God doctrine strictly requires that the act must be occasioned
solely by the violence of nature. Human intervention is to be excluded from creating or entering into
the cause of the mischief. When the effect is found to be in part the result of the participation of man,
whether due to his active intervention or neglect or failure to act, the whole occurrence is then
humanized and removed from the rules applicable to the acts of God. [33]

The appellate court, in affirming the finding of the trial court that human intervention in the form
of contributory negligence by all the defendants resulted to the loss of the cargoes, [34] held that
unloading outside the breakwater, instead of inside the breakwater, while a storm signal was up
constitutes negligence.[35] It thus concluded that the proximate cause of the loss was Black Seas
negligence in deciding to unload the cargoes at an unsafe place and while a typhoon was
approaching.[36]
From a review of the records of the case, there is no indication that there was greater risk in
loading the cargoes outside the breakwater. As the defendants proffered, the weather on October
26, 1991 remained normal with moderate sea condition such that port operations continued and
proceeded normally.[37]
 The weather data report,[38] furnished and verified by the Chief of the Climate Data Section of
PAG-ASA and marked as a common exhibit of the parties, states that while typhoon signal No. 1
was hoisted over Metro Manila on October 23-31, 1991, the sea condition at the port of Manila at
5:00 p.m. - 11:00 p.m. of October 26, 1991 was moderate. It cannot, therefore, be said that the
defendants were negligent in not unloading the cargoes upon the barge on October 26, 1991 inside
the breakwater.
That no tugboat towed back the barge to the pier after the cargoes were completely loaded by
12:30 in the morning[39] is, however, a material fact which the appellate court failed to properly
consider and appreciate[40] the proximate cause of the loss of the cargoes. Had the barge been towed
back promptly to the pier, the deteriorating sea conditions notwithstanding, the loss could have been
avoided. But the barge was left floating in open sea until big waves set in at 5:30 a.m., causing it to
sink along with the cargoes.[41] The loss thus falls outside the act of God doctrine.
The proximate cause of the loss having been determined, who among the parties is/are
responsible therefor?
Contrary to petitioners insistence, this Court, as did the appellate court, finds that petitioner is a
common carrier. For it undertook to transport the cargoes from the shipside of M/V Alexander
Saveliev to the consignees warehouse at Cainta, Rizal. As the appellate court put it, as long as a
person or corporation holds [itself] to the public for the purpose of transporting goods as [a] business,
[it] is already considered a common carrier regardless if [it] owns the vehicle to be used or has to
hire one.[42] That petitioner is a common carrier, the testimony of its own Vice-President and General
Manager Noel Aro that part of the services it offers to its clients as a brokerage firm includes the
transportation of cargoes reflects so.
Atty. Jubay: Will you please tell us what [are you] functions x x x as Executive Vice-President
and General Manager of said Company?
Mr. Aro: Well, I oversee the entire operation of the brokerage and transport business of the
company. I also handle the various division heads of the company for operation matters,
and all other related functions that the President may assign to me from time to time, Sir.
Q: Now, in connection [with] your duties and functions as you mentioned, will you please tell
the Honorable Court if you came to know the company by the name Little Giant Steel
Pipe Corporation?
A: Yes, Sir. Actually, we are the brokerage firm of that Company.
Q: And since when have you been the brokerage firm of that company, if you can recall?

A: Since 1990, Sir.

Q: Now, you said that you are the brokerage firm of this Company. What work or duty did
you perform in behalf of this company?
A: We handled the releases (sic) of their cargo[es] from the Bureau of Customs. We [are]
also in-charged of the delivery of the goods to their warehouses. We also handled the
clearances of their shipment at the Bureau of Customs, Sir.

xxx
 Q: Now, what precisely [was] your agreement with this Little Giant Steel Pipe Corporation
with regards to this shipment? What work did you do with this shipment?
A: We handled the unloading of the cargo[es] from vessel to lighter and then the delivery of
[the] cargo[es] from lighter to BASECO then to the truck and to the warehouse, Sir.
Q: Now, in connection with this work which you are doing, Mr. Witness, you are supposed
to perform, what equipment do (sic) you require or did you use in order to effect this
unloading, transfer and delivery to the warehouse?
A: Actually, we used the barges for the ship side operations, this unloading [from] vessel to
lighter, and on this we hired or we sub-contracted with [T]ransport Ventures, Inc. which
[was] in-charged (sic) of the barges. Also, in BASECO compound we are leasing cranes
to have the cargo unloaded from the barge to trucks, [and] then we used trucks to deliver
[the cargoes] to the consignees warehouse, Sir.
Q: And whose trucks do you use from BASECO compound to the consignees warehouse?
A: We utilized of (sic) our own trucks and we have some other contracted trucks, Sir.

xxx

ATTY. JUBAY: Will you please explain to us, to the Honorable Court why is it you have to
contract for the barges of Transport Ventures Incorporated in this particular operation?
A: Firstly, we dont own any barges. That is why we hired the services of another firm whom
we know [al]ready for quite sometime, which is Transport Ventures, Inc. (Emphasis
supplied)[43]
It is settled that under a given set of facts, a customs broker may be regarded as a common
carrier. Thus, this Court, in A.F. Sanchez Brokerage, Inc. v. The Honorable Court of Appeals,[44] held:

The appellate court did not err in finding petitioner, a customs broker, to be also a common carrier,
as defined under Article 1732 of the Civil Code, to wit,

Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business
of carrying or transporting passengers or goods or both, by land, water, or air, for compensation,
offering their services to the public.

xxx

Article 1732 does not distinguish between one whose principal business activity is the carrying of
goods and one who does such carrying only as an ancillary activity. The contention, therefore, of
petitioner that it is not a common carrier but a customs broker whose principal function is to prepare
the correct customs declaration and proper shipping documents as required by law is bereft of merit.
It suffices that petitioner undertakes to deliver the goods for pecuniary consideration. [45]

And in Calvo v. UCPB General Insurance Co. Inc.,[46]this Court held that as the transportation of
goods is an integral part of a customs broker, the customs broker is also a common carrier. For to
declare otherwise would be to deprive those with whom [it] contracts the protection which the law
affords them notwithstanding the fact that the obligation to carry goods for [its] customers, is part
and parcel of petitioners business.[47]
As for petitioners argument that being the agent of Little Giant, any negligence it committed was
deemed the negligence of its principal, it does not persuade.
True, petitioner was the broker-agent of Little Giant in securing the release of the cargoes. In
effecting the transportation of the cargoes from the shipside and into Little Giants warehouse,
however, petitioner was discharging its own personal obligation under a contact of carriage.
Petitioner, which did not have any barge or tugboat, engaged the services of TVI as handler [48] to
provide the barge and the tugboat. In their Service Contract, [49]while Little Giant was named as the
consignee, petitioner did not disclose that it was acting on commission and was chartering the vessel
for Little Giant.[50] Little Giant did not thus automatically become a party to the Service Contract and
was not, therefore, bound by the terms and conditions therein.
Not being a party to the service contract, Little Giant cannot directly sue TVI based thereon but
it can maintain a cause of action for negligence.[51]
In the case of TVI, while it acted as a private carrier for which it was under no duty to observe
extraordinary diligence, it was still required to observe ordinary diligence to ensure the proper and
careful handling, care and discharge of the carried goods.
Thus, Articles 1170 and 1173 of the Civil Code provide:

ART. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for damages.

ART. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and
2202, paragraph 2, shall apply.

If the law or contract does not state the diligence which is to be observed in the performance, that
which is expected of a good father of a family shall be required.

Was the reasonable care and caution which an ordinarily prudent person would have used in
the same situation exercised by TVI?[52]
This Court holds not.
TVIs failure to promptly provide a tugboat did not only increase the risk that might have been
reasonably anticipated during the shipside operation, but was theproximate cause of the loss. A
man of ordinary prudence would not leave a heavily loaded barge floating for a considerable number
of hours, at such a precarious time, and in the open sea, knowing that the barge does not have any
power of its own and is totally defenseless from the ravages of the sea. That it was nighttime and,
therefore, the members of the crew of a tugboat would be charging overtime pay did not excuse TVI
from calling for one such tugboat.
 As for petitioner, for it to be relieved of liability, it should, following Article 1739 [53] of the Civil Code,
prove that it exercised due diligence to prevent or minimize the loss, before, during and after the
occurrence of the storm in order that it may be exempted from liability for the loss of the goods.
While petitioner sent checkers[54] and a supervisor[55]on board the vessel to counter-check the
operations of TVI, it failed to take all available and reasonable precautions to avoid the loss. After
noting that TVI failed to arrange for the prompt towage of the barge despite the deteriorating sea
conditions, it should have summoned the same or another tugboat to extend help, but it did not.
This Court holds then that petitioner and TVI are solidarily liable [56] for the loss of the cargoes.
The following pronouncement of the Supreme Court is instructive:

The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its failure to exercise the high diligence required
of the common carrier. In the discharge of its commitment to ensure the safety of passengers, a
carrier may choose to hire its own employees or avail itself of the services of an outsider or an
independent firm to undertake the task. In either case, the common carrier is not relieved of its
responsibilities under the contract of carriage.

Should Prudent be made likewise liable? If at all, that liability could only be for tort under the
provisions of Article 2176 and related provisions, in conjunction with Article 2180 of the Civil Code.
x x x [O]ne might ask further, how then must the liability of the common carrier, on one hand, and an
independent contractor, on the other hand, be described? It would be solidary. A contractual
obligation can be breached by tort and when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa aquiliana, Article 2194 of the Civil Code can well
apply. In fine, a liability for tort may arise even under a contract, where tort is that which breaches
the contract. Stated differently, when an act which constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. [57]

As for Black Sea, its duty as a common carrier extended only from the time the goods were
surrendered or unconditionally placed in its possession and received for transportation until they
were delivered actually or constructively to consignee Little Giant. [58]
Parties to a contract of carriage may, however, agree upon a definition of delivery that extends
the services rendered by the carrier. In the case at bar, Bill of Lading No. 2 covering the shipment
provides that delivery be made to the port of discharge or so near thereto as she may safely get,
always afloat.[59] The delivery of the goods to the consignee was not from pier to pier but from the
shipside of M/V Alexander Saveliev and into barges, for which reason the consignee contracted the
services of petitioner. Since Black Sea had constructively delivered the cargoes to Little Giant,
through petitioner, it had discharged its duty.[60]
In fine, no liability may thus attach to Black Sea.
Respecting the award of attorneys fees in an amount over P1,000,000.00 to Industrial Insurance,
for lack of factual and legal basis, this Court sets it aside. While Industrial Insurance was compelled
to litigate its rights, such fact by itself does not justify the award of attorneys fees under Article 2208
of the Civil Code. For no sufficient showing of bad faith would be reflected in a partys persistence in
a case other than an erroneous conviction of the righteousness of his cause. [61] To award attorneys
fees to a party just because the judgment is rendered in its favor would be tantamount to imposing
a premium on ones right to litigate or seek judicial redress of legitimate grievances. [62]
On the award of adjustment fees: The adjustment fees and expense of divers were incurred by
Industrial Insurance in its voluntary but unsuccessful efforts to locate and retrieve the lost cargo.
They do not constitute actual damages.[63]
As for the court a quos award of interest on the amount claimed, the same calls for modification
following the ruling in Eastern Shipping Lines, Inc. v. Court of Appeals[64] that when the demand
cannot be reasonably established at the time the demand is made, the interest shall begin to run not
from the time the claim is made judicially or extrajudicially but from the date the judgment of the court
is made (at which the time the quantification of damages may be deemed to have been reasonably
ascertained).[65]
WHEREFORE, judgment is hereby rendered ordering petitioner Schmitz Transport & Brokerage
Corporation, and Transport Venture Incorporation jointly and severally liable for the amount
of P5,246,113.11 with the MODIFICATION that interest at SIX PERCENT per annum of the amount
due should be computed from the promulgation on November 24, 1997 of the decision of the trial
court.
Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-33171 May 31, 1979

PORFIRIO P. CINCO, petitioner-appellant,

vs.
HON. MATEO CANONOY, Presiding Judge of the Third Branch of the Court of First Instance
of Cebu, HON. LORENZO B. BARRIA City Judge of Mandaue City, Second Branch ROMEO
HILOT, VALERIANA PEPITO and CARLOS PEPITO, respondents-appellees.

Eriberto Seno for appellant.

Jose M. Mesina for appellees.

MELENCIO-HERRERA, J.:

This is a Petition for Review on certiorari of the Decision of the Court of First Instance of Cebu
rendered on November 5, 1970.

The background facts to the controversy may be set forth as follows:

Petitioner herein filed, on February 25, 1970, a Complaint in the City Court of Mandaue City, Cebu,
Branch II, for the recovery of damages on account of a vehicular accident involving his automobile
and a jeepney driven by Romeo Hilot and operated by Valeriana Pepito and Carlos Pepito, the last
three being the private respondents in this suit. Subsequent thereto, a criminal case was filed
against the driver, Romeo Hilot, arising from the same accident. At the pre-trial in the civil case,
counsel for private respondents moved to suspend the civil action pending the final determination of
the criminal suit, invoking Rule 111, Section 3 (b) of the Rules of Court, which provides:

(b) After a criminal action has been commenced. no civil action arising from the same
offense can be prosecuted, and the same shall be suspended, in whatever stage it
may be found, until final judgment in the criminal proceeding has been rendered;

The City Court of Mandaue City in an Order dated August 11, 1970, ordered the suspension of the
civil case. Petitioner's Motion for Reconsideration thereof, having been denied on August 25,
1970, 1petitioner elevated the matter on certiorari to the Court of First Instance of Cebu, respondent
Judge presiding, on September 11, 1970, alleging that the City Judge had acted with grave abuse of
discretion in suspending the civil action for being contrary to law and jurisprudence. 2

On November 5, 1970, respondent Judge dismissed the Petition for certiorari on the ground that
there was no grave abuse of discretion on the part of the City Court in suspending the civil action
inasmuch as damage to property is not one of the instances when an independent civil action is
proper; that petitioner has another plain, speedy, and adequate remedy under the law, which is to
submit his claim for damages in the criminal case; that the resolution of the City Court is interlocutory
and, therefore, certiorari is improper; and that the Petition is defective inasmuch as what petitioner
actually desires is a Writ of mandamus (Annex "R"). Petitioner's Motion for Reconsideration was
denied by respondent Judge in an Order dated November 14,1970 (Annex "S" and Annex "U").

Hence, this Petition for Review before this Tribunal, to which we gave due course on February 25,
1971.3

Petitioner makes these:

ASSIGNMENTS OF ERROR

1. THE TRIAL COURT, RESPONDENT JUDGE MATEO CANONOY, ERRED IN

HOLDING THAT THE TRIAL OF THE CIVIL CASE NO. 189 FILED IN THE CITY
COURT OF MANDAUE SHOULD BE SUSPENDED UNTIL AFTER A FINAL
JUDGMENT IS RENDERED IN THE CRIMINAL CASE.

2. THAT THE COURT ERRED IN HOLDING THAT IN ORDER TO AVOID DELAY

THE OFFENDED PARTY MAY SUBMIT HIS CLAIM FOR DAMAGES IN THE
CRIMINAL CASE.

3. THAT THE COURT ERRED IN HOLDING THAT THE PETITION FOR certiorari IS
NOT PROPER, BECAUSE THE RESOLUTION IN QUESTION IS
INTERLOCUTORY.

4. THAT THE COURT ERRED IN HOLDING THAT THE PETITION IS DEFECTIVE. 4

all of which can be synthesized into one decisive issue: whether or not there can be an independent
civil action for damage to property during the pendency of the criminal action.
From the Complaint filed by petitioner before the City Court of Mandaue City, Cebu, it is evident that
the nature and character of his action was quasi-delictual predicated principally on Articles 2176 and
2180 of the Civil Code, which provide:

Art. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is caned a quasi-
delict and is governed by the provisions of this Chapter. (1902a)

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's
own acts or omissions but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages cause by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are
not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage. (1903a)

Thus, plaintiff made the essential averments that it was the fault or negligence of the driver, Romeo
Hilot, in the operation of the jeepney owned by the Pepitos which caused the collision between his
automobile and said jeepney; that damages were sustained by petitioner because of the collision;
that there was a direct causal connection between the damages he suffered and the fault and
negligence of private respondents.

Similarly, in the Answer, private respondents contended, among others, that defendant, Valeriana
Pepito, observed due diligence in the selection and supervision of her employees, particularly of her
co-defendant Romeo Hilot, a defense peculiar to actions based on quasi-delict. 5

Liability being predicated on quasi-delict the civil case may proceed as a separate and independent
civil action, as specifically provided for in Article 2177 of the Civil Code.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice for the same act or omission of
the defendant. (n)

The crucial distinction between criminal negligence and quasi-delict, which is readily
discernible from the foregoing codal provision, has been expounded in Barredo
vs. Garcia, et al., 73 Phil. 607, 620-621, 6 thus:

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also
simple imprudence. if we were to hold that articles 1902 to 1910 of the Civil Code
refer only to fault or negligence not punished by law, according to the literal import of
article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very
little scope and application in actual life. Death or injury to persons and damage to
property through any degree of negligence even the slightest would have to be
indemnified only through the principle of civil hability arising from crime. In such a
state of affairs, what sphere would remain for quasidelito or culpa aquiliana We are
loath to impute to the lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will not use the literal meaning of
the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or quasi-delito, which is conserved
and made enduring in articles 1902 to 11910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which cannot be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to 1910 of the Civil
Code, otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus
ibi remedium.

Thirdly, to hold that there is only one way to make defendants liability effective, and
that is, to sue the driver and exhaust his (the latter's) property first, would be
tantamount to compelling the plaintiff to follow a devious and cumbersome method of
obtaining a reliel True, there is such a remedy under our laws, but there is also a
more expeditious way, which is based on the primary and direct responsibility of the
defendant under article 1903 of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs because the procedure indicated by the defendant is
wasteful and productive of delay, it being a matter of common knowledge that
professional drivers of taxis and similar public conveyances usually do not have
sufficient means with which to pay damages. Why, then, should the plaintiff be
required in all cases to go through this round-about, unnecessary, and probably
useless procedure? In construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility of
employers and their presumed negligence are principles calculated to protect
society. Workmen and employees should be carefully chosen and supervised in
order to avoid injury to the public. It is the masters or employers who principally reap
the profits resulting from the services of these servants and employees. It is but right
that they should guarantee the latter's careful conduct for the personnel and
patrimonial safety of others. As Theilhard has said, "they should reproach
themselves, at least, some for their weakness, others for their poor selection and all
for their negligence." And according to Manresa, "It is much more equitable and just
that such responsibility should fail upon the principal or director who could have
chosen a careful and prudent employee, and not upon the such employee because
of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists
also base this primary responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos says in the work already
cited (Vol. 7, p. 747) that before third persons the employer and employee vienen a
ser como una sola personalidad, por refundicion de la del dependiente en la de
quien la emplea y utihza (become as one personality by the merging of the person of
the employee in that of him who employs and utilizes him.) All these observations
acquire a peculiar force and significance when it comes to motor accidents, and
 there is need of stressing and accentuating the responsibility of owners of motor
vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and
the Civil Code on this subject, which has given rise to overlapping or concurrence of
spheres already discussed, and for lack of understanding of the character and
efficacy of the action for culpaaquiliana there has grown up a common practice to
seek damages only by virtue of the Civil responsibility arising from crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by our laws, it has nevertheless
rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are
asked to help perpetuate this usual course. But we believe it is high time we pointed
out to the harm done by such practice and to restore the principle of responsibility for
fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we cause the stream ofquasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for the bet ter safeguarding of
private rights because it re-establishes an ancient and additional remedy, and for the
further reason that an independent civil action, not depending on the issues, stations
and results of a criminal prosecution, and entirely directed by the party wronged or
his counsel is more likely to secure adequate and efficacious redress. (Garcia vs.
Florida 52 SCRA 420, 424-425, Aug. 31, 1973). (Emphasis supplied)

The separate and independent civil action for aquasi-delict is also clearly recognized in section 2,
Rule 111 of the Rules of Court, reading:

Sec. 2. Independent civil action. In the cases provided for in Articles 31, 32, 33, 34
and 2177 of the Civil Code of the Philippines, Are independent civil action entirely
separate and distinct from the c action, may be brought by the injured party during
the pendency of the criminal case, provided the right is reserved as required in the
preceding section. Such civil action shag proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.

Significant to note is the fact that the foregoing section categorically lists cases provided for inArticle
2177 of the Civil Code, supra, as allowing of an "independent civil action."

Tested by the hereinabove-quoted legal tenets, it has to be held that the City Court, in surrounding
the civil action, erred in placing reliance on section 3 (b) of Rule 111 of the Rules of
Court, supra which refers to "other civil actions arising from cases not included in the section just
cited" (i.e., Section 2, Rule 111 above quoted), in which case 6 once the criminal action has being
commenced, no civil action arising from the same offense can be prosecuted and the same shall be
suspended in whatever stage it may be found, until final judgment in the criminal proceeding has
been rendered." Stated otherwise, the civil action referred to in Secs. 3(a) and 3(b) of Rule 111 of
the Rules of Court, which should be suspended after the criminal action has been instituted is that
arising from the criminal offense not the civil action based on quasi-delict

Article 31 of the Civil Code then clearly assumes relevance when it provides:

Art. 31. When the civil action is based on an obligation not arising from the act or
omission complained of as a felony, such civil action may proceed independently of
the criminal proceedings and regardless of the result of the latter.
For obviously, the jural concept of a quasi-delict is that of an independent source of obligation "not
arising from the act or omission complained of as a felony." Article 1157 of the Civil Code bolsters
this conclusion when it specifically recognizes that:

Art. 1157. Obligations arise from:

(1) Law;

(2) Contracts;

(3) Quasi-contracts;

(4) Acts or omissions punished by law; and

(5) Quasi-delicts. (1089a)

(Emphasis supplied)

It bears emphasizing that petitioner's cause of action is based on quasi-delict. The concept of
quasidelica as enunciated in Article 2176 of the Civil Code (supra), is so broad that it includes not
only injuries to persons but also damage to property. 7 It makes no distinction between "damage to
persons" on the one hand and "damage to property" on the other. Indeed, the word "damage" is
used in two concepts: the "harm" done and "reparation" for the harm done. And with respect to harm
it is plain that it includes both injuries to person and property since "harm" is not limited to personal
but also to property injuries. In fact, examples of quasi-delict in the law itself include damage to
property. An instance is Article 2191(2) of the Civil Code which holds proprietors responsible for
damages caused by excessive smoke which may be harmful to personsor property."

In the light of the foregoing disquisition, we are constrained to hold that respondent Judge gravely
abused his discretion in upholding the Decision of the City Court of Mandaue City, Cebu, suspending
the civil action based on a quasi-delict until after the criminal case is finally terminated. Having
arrived at this conclusion, a discussion of the other errors assigned becomes unnecessary.

WHEREFORE, granting the Writ of certiorari prayed for, the Decision of the Court of First Instance of
Cebu sought to be reviewed is hereby set aside, and the City Court of Mandaue City, Cebu, Branch
11, is hereby ordered to proceed with the hearing of Civil Case No. 189 of that Court.

Without pronouncement as to costs.

SO ORDERED

SECOND DIVISION

[G.R. No. 114791. May 29, 1997]

NANCY GO AND ALEX GO, petitioners, vs. THE HONORABLE COURT
OF APPEALS, HERMOGENES ONG and JANE C.
ONG,respondents.

DECISION
ROMERO, J.:

No less than the Constitution commands us to protect marriage as an inviolable social

institution and the foundation of the family.[1] In our society, the importance of a wedding
ceremony cannot be underestimated as it is the matrix of the family and, therefore, an
occasion worth reliving in the succeeding years.
It is in this light that we narrate the following undisputed facts:
Private respondents spouses Hermogenes and Jane Ong were married on June 7,
1981, in Dumaguete City. The video coverage of the wedding was provided by petitioners
at a contract price of P1,650.00. Three times thereafter, the newlyweds tried to claim the
video tape of their wedding, which they planned to show to their relatives in the United
States where they were to spend their honeymoon, and thrice they failed because the
tape was apparently not yet processed. The parties then agreed that the tape would be
ready upon private respondents return.
When private respondents came home from their honeymoon, however, they found
out that the tape had been erased by petitioners and therefore, could no longer be
delivered.
Furious at the loss of the tape which was supposed to be the only record of their
wedding, private respondents filed on September 23, 1981 a complaint for specific
performance and damages against petitioners before the Regional Trial Court, 7th Judicial
District, Branch 33, Dumaguete City.After a protracted trial, the court a quo rendered a
decision, to wit:

WHEREFORE, judgment is hereby granted:

1. Ordering the rescission of the agreement entered into between plaintiff Hermogenes Ong and
defendant Nancy Go;

2. Declaring defendants Alex Go and Nancy Go jointly and severally liable to plaintiffs
Hermogenes Ong and Jane C. Ong for the following sums:

a) P450.00, the down payment made at contract time;

b) P75,000.00, as moral damages;

c) P20,000.00, as exemplary damages;

d) P5,000.00, as attorneys fees; and

e) P2,000.00, as litigation expenses;

Defendants are also ordered to pay the costs.

SO ORDERED.

Dissatisfied with the decision, petitioners elevated the case to the Court of Appeals
which, on September 14, 1993, dismissed the appeal and affirmed the trial courts decision.
Hence, this petition.
Petitioners contend that the Court of Appeals erred in not appreciating the evidence
they presented to prove that they acted only as agents of a certain Pablo Lim and, as
such, should not have been held liable. In addition, they aver that there is no evidence to
show that the erasure of the tape was done in bad faith so as to justify the award of
damages.[2]
The petition is not meritorious.
Petitioners claim that for the video coverage, the cameraman was employed by Pablo
Lim who also owned the video equipment used. They further assert that they merely get
a commission for all customers solicited for their principal.[3]
This contention is primarily premised on Article 1883 of the Civil Code which states
thus:

ART. 1883. If an agent acts in his own name, the principal has no right of action against the
persons with whom the agent has contracted; neither have such persons against the principal.

In such case the agent is the one directly bound in favor of the person with whom he has
contracted, as if the transaction were his own, except when the contract involves things
belonging to the principal.

xxx xxx xxx

Petitioners argument that since the video equipment used belonged to Lim and thus
the contract was actually entered into between private respondents and Lim is not
deserving of any serious consideration. In the instant case, the contract entered into is
one of service, that is, for the video coverage of the wedding. Consequently, it can hardly
be said that the object of the contract was the video equipment used. The use by
petitioners of the video equipment of another person is of no consequence.
It must also be noted that in the course of the protracted trial below, petitioners did
not even present Lim to corroborate their contention that they were mere agents of the
latter. It would not be unwarranted to assume that their failure to present such a vital
witness would have had an adverse result on the case.[4]
As regards the award of damages, petitioners would impress upon this Court their
lack of malice or fraudulent intent in the erasure of the tape. They insist that since private
respondents did not claim the tape after the lapse of thirty days, as agreed upon in their
contract, the erasure was done in consonance with consistent business practice to
minimize losses.[5]
We are not persuaded.
As correctly observed by the Court of Appeals, it is contrary to human nature for any
newlywed couple to neglect to claim the video coverage of their wedding; the fact that
private respondents filed a case against petitioners belies such assertion. Clearly,
petitioners are guilty of actionable delay for having failed to process the video
tape. Considering that private respondents were about to leave for the United States, they
took care to inform petitioners that they would just claim the tape upon their return two
months later.Thus, the erasure of the tape after the lapse of thirty days was unjustified.
In this regard, Article 1170 of the Civil Code provides that those who in the
performance of their obligations are guilty of fraud, negligence or delay, and those who is
any manner contravene the tenor thereof, are liable for damages.
In the instant case, petitioners and private respondents entered into a contract
whereby, for a fee, the former undertook to cover the latters wedding and deliver to them
a video copy of said event. For whatever reason, petitioners failed to provide private
respondents with their tape. Clearly, petitioners are guilty of contravening their obligation
to said private respondents and are thus liable for damages.
The grant of actual or compensatory damages in the amount of P450.00 is justified,
as reimbursement of the downpayment paid by private respondents to petitioners.[6]
Generally, moral damages cannot be recovered in an action for breach of contract
because this case is not among those enumerated in Article 2219 of the Civil
Code. However, it is also accepted in this jurisdiction that liability for aquasi-delict may
still exist despite the presence of contractual relations, that is, the act which violates the
contract may also constitute a quasi-delict.[7]Consequently, moral damages are
recoverable for the breach of contract which was palpably wanton, reckless, malicious or
in bad faith, oppresive or abusive.[8]
Petitioners act or omission in recklessly erasing the video coverage of private
respondents wedding was precisely the cause of the suffering private respondents had
to undergo.
As the appellate court aptly observed:

Considering the sentimental value of the tapes and the fact that the event therein recorded a
wedding which in our culture is a significant milestone to be cherished and remembered could no
longer be reenacted and was lost forever, the trial court was correct in awarding the appellees
moral damages albeit in the amount of P75,000.00, which was a great reduction from plaintiffs
demand in the complaint, in compensation for the mental anguish, tortured feelings, sleepless
nights and humiliation that the appellees suffered and which under the circumstances could be
awarded as allowed under Articles 2217 and 2218 of the Civil Code.[9]

Considering the attendant wanton negligence committed by petitioners in the case at

bar, the award of exemplary damages by the trial court is justified[10] to serve as a warning
to all entities engaged in the same business to observe due diligence in the conduct of
their affairs.
The award of attorneys fees and litigation expenses are likewise proper, consistent
with Article 2208[11] of the Civil Code.
Finally, petitioner Alex Go questions the finding of the trial and appellate courts
holding him jointly and severally liable with his wife Nancy regarding the pecuniary
liabilities imposed. He argues that when his wife entered into the contract with private
respondent, she was acting alone for her sole interest.[12]
We find merit in this contention. Under Article 117 of the Civil Code (now Article 73 of
the Family Code), the wife may exercise any profession, occupation or engage in
business without the consent of the husband. In the instant case, we are convinced that
it was only petitioner Nancy Go who entered into the contract with private respondent.
Consequently, we rule that she is solely liable to private respondents for the damages
awarded below, pursuant to the principle that contracts produce effect only as between
the parties who execute them.[13]
WHEREFORE, the assailed decision dated September 14, 1993 is hereby
AFFIRMED with the MODIFICATION that petitioner Alex Go is absolved from any liability
to private respondents and that petitioner Nancy Go is solely liable to said private
respondents for the judgment award. Costs against petitioners.
SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner,

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

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome,
these various amounts with interest at the legal rate, from the date of the filing of the complaint until
paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket
from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs
against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air
Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome.
From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the
defendant airline forced plaintiff to vacate the "first class" seat that he was occupying
because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat,
the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat
would be taken over his dead body; a commotion ensued, and, according to said Ernesto G.
Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager], they
came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white
man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first
class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court
of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all
the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of
record without expressing therein clearly and distinctly the facts and the law on which it is
based".5 This is echoed in the statutory demand that a judgment determining the merits of the case
shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised
before it". 7

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

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

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

With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first
class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he would have a first class ride, but that such
would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that
plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of
his journey, particularly that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

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

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention,
thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-
1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for,
a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23

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

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks
a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in
the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such
is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which
the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight.27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take
a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the
seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this
issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff,
First Class passage on defendant's plane during the entire duration of plaintiff's tour of
Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the
plaintiff has been compelled by defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and

embarrassments brought by defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from Madrid to Manila.32

xxx xxx xxx

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

xxx xxx xxx

The foregoing, in our opinion, substantially aver:First, That there was a contract to furnish plaintiff a
first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract
was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that
there was bad faith when petitioner's employee compelled Carrascoso to leave his first class
accommodation berth "after he was already, seated"and to take a seat in the tourist class, by reason
of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental
anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is
true that there is no specific mention of the termbad faith in the complaint. But, the inference of bad
faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was
averred to establish the relation between the parties. But the stress of the action is put on wrongful
expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok,
Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b)
evidence of bad faith in the fulfillment of the contract was presented without objection on the part of
the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment
in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured
by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane
belonging to the defendant Air France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has been sufficiently established by
plaintiff in his testimony before the court, corroborated by the corresponding entry made by
the purser of the plane in his notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that
the captain refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The
captain of the plane who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever
contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to secure his
disposition; but defendant did neither. 37

The Court of appeals further stated

Neither is there evidence as to whether or not a prior reservation was made by the white
man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him
when all the seats had already been taken, surely the plaintiff should not have been picked
out as the one to suffer the consequences and to be subjected to the humiliation and
indignity of being ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the manager adopted the
more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning
of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for
first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of
the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19,
1959)

In this connection, we quote with approval what the trial Judge has said on this point:
 Why did the, using the words of witness Ernesto G. Cuento, "white man" have a
"better right" to the seat occupied by Mr. Carrascoso? The record is silent. The
defendant airline did not prove "any better", nay, any right on the part of the "white
man" to the "First class" seat that the plaintiff was occupying and for which he paid
and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok,
the defendant could have easily proven it by having taken the testimony of the said
Manager by deposition, but defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules
of Court]; and, under the circumstances, the Court is constrained to find, as it does
find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first
class" seat because the said Manager wanted to accommodate, using the words of
the witness Ernesto G. Cuento, the "white man".38

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

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:

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

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is
well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer,
must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business
is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers.
The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So it
is, that any rule or discourteous conduct on the part of employees towards a passenger gives the
latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected." 46 And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that
breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad
train, when the conductor came to collect his fare tendered him the cash fare to a point where the
train was scheduled not to stop, and told him that as soon as the train reached such point he would
pay the cash fare from that point to destination, there was nothing in the conduct of the passenger
which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and
the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger. 1awphl.nt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by
the petitioner air carrier a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already that was already in the trip I could not help it. So one of the
flight attendants approached me and requested from me my ticket and I said, What for? and
she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind.
That is tantamount to accepting my transfer." And I also said, "You are not going to note
anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough
leg room, I stood up and I went to the pantry that was next to me and the purser was there.
He told me, "I have recorded the incident in my notebook." He read it and translated it to me
because it was recorded in French "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."

Mr. VALTE
 I move to strike out the last part of the testimony of the witness because the best evidence
would be the notes. Your Honor.

COURT

I will allow that as part of his testimony. 49

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

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they
grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The
utterance of the purser regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would
have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really
true that no such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages in contracts and quasi- contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in
addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just
and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that
discretion well exercised as it was here should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56The
Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give
our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error.
We accordingly vote to affirm the same. Costs against petitioner. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-28589 January 8, 1973

RAFAEL ZULUETA, ET AL., plaintiffs-appellees,

vs.
PAN AMERICAN WORLD AIRWAYS, INC., defendant-appellant.

Alfredo L. Benipayo for plaintiffs-appellee Rafael Zulueta and Carolina Zulueta.

Justo L. Albert for plaintiff-appellee Telly Albert Zulueta.

V.E. del Rosario and Associates and Salcedo, Del Rosario, Bito, Misa and Lozada for defendant-
appellant.

RESOLUTION

CONCEPCION, C.J.:

Both parties in this case have moved for the reconsideration of the decision of this Court
promulgated on February 29, 1972. Plaintiffs maintain that the decision appealed from should be
affirmed in toto. The defendant, in turn, prays that the decision of this Court be "set aside ... with or
without a new trial, ... and that the complaint be dismissed, with costs; or, in the alternative, that the
amount of the award embodied therein be considerably reduced." .

Subsequently to the filing of its motion for reconsideration, the defendant filed a "petition to annul
proceedings and/or to order the dismissal of plaintiffs-appellees' complaint" upon the ground that
"appellees' complaint actually seeks the recovery of only P5,502.85 as actual damages, because, for
the purpose of determining the jurisdiction of the lower court, the unspecified sums representing
items of alleged damages, may not be considered, under the settled doctrines of this Honorable
Court," and "the jurisdiction of courts of first instance when the complaint in the present case was
filed on Sept. 30, 1965" was limited to cases "in which the demand, exclusive of interest, or the value
of the property in controversy amounts to more than ten thousand pesos" and "the mere fact that the
complaint also prays for unspecified moral damages and attorney's fees, does not bring the action
within the jurisdiction of the lower court."

We find no merit in this contention. To begin with, it is not true that "the unspecified sums
representing items or other alleged damages, may not be considered" for the purpose of
determining the jurisdiction of the court "under the settled doctrines of this Honorable Court." In
fact, not a single case has been cited in support of this allegation.

Secondly, it has been held that a clam for moral damages is one not susceptible of pecuniary
estimation.1 In fact, Article 2217 of the Civil Code of the Philippines explicitly provides that "(t)hough
incapable of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act or omission." Hence, "(n)o proof pecuniary loss necessary"
pursuant to Article 2216 of the same Code "in order that moral ... damages may be adjudicated."
And "(t)he assessment of such damages ... is left to the discretion of the court" - said article adds -
"according to the circumstances of each case." Appellees' complaint is, therefore, within the original
jurisdiction of courts of first instance, which includes "all civil actions in which the subject of the
litigation is not capable of pecuniary estimation."2

Thirdly, in its answer to plaintiffs' original and amended complainants, defendant had set up a
counterclaim in the aggregate sum of P12,000, which is, also, within the original jurisdiction of said
courts, thereby curing the alleged defect if any, in plaintiffs' complaint.3

We need not consider the jurisdictional controversy as to the amount the appellant
sues to recover because the counterclaim interposed establishes the jurisdiction of
the District Court. Merchants' Heat & Light Co. v. James B. Clow & Sons, 204 U.S.
286, 27 S. Ct. 285, 51 L. Ed. 488; O. J. Lewis Mercantile Co. v. Klepner, 176 F. 343
(C.C.A. 2), certiorari denied 216 U.S. 620, 30 S Ct. 575, 54 L. Ed. 641. ... .4

... courts have said that "when the jurisdictional amount is in question, the tendering
of a counterclaim in an amount which in itself, or added to the amount claimed in the
petition, makes up a sum equal to the amount necessary to the jurisdiction of this
court, jurisdiction is established, whatever may be the state of the plaintiff's
complaint." American Sheet & Tin Plate Co. v. Winzeler (D.C.) 227 F. 321, 324.5

Thus, in Ago v. Buslon,6 We held:

... . Then, too, petitioner's counterclaim for P37,000.00 was, also, within the exclusive
original jurisdiction of the latter courts, andthere are ample precedents to the effect
that "although the original claim involves less than the jurisdictional amount, ...
jurisdiction can be sustained if the counterclaim (of the compulsory type)" such as
the one set up by petitioner herein, based upon the damages allegedly suffered by
him in consequence of the filing of said complaint "exceeds the jurisdictional
amount." (Moore Federal Practice, 2nd ed. [1948], Vol. 3, p. 41; Ginsburg vs. Pacific
Mutual Life Ins. Co. of California, 69 Fed. [2d] 97; Home Life Ins. Co. vs. Sipp., 11
Fed. [2d]474; American Sheet & Tin Plate Co. vs. Winzeler [D.C.], 227 Fed. 321,
324; Brix vs. People's Mutual Life Ins. Co., 41 P. 2d. 537, 2 Cal. 2d. 446; Emery vs.
Pacific Employees Ins. Co., 67 P. 2d. 1046, 8 Cal. 2d. 663).

Needless to say, having not only failed to question the jurisdiction of the trial court either in that
court or in this Court, before the rendition of the latter's decision, and even subsequently thereto, by
filing the aforementioned motion for reconsideration and seeking the reliefs therein prayed for but,
also, urged both courts to exercise jurisdiction over the merits of the case, defendant is now
estopped from impugning said jurisdiction.7

Before taking up the specific questions raised in defendant's motion for reconsideration, it should be
noted that the same is mainly predicated upon the premise that plaintiffs' version is inherently
incredible, and that this Court should accept the theory of the defense to the effect that petitioner
was off-loaded because of a bomb-scare allegedly arising from his delay in boarding the aircraft and
subsequent refusal to open his bags for inspection. We need not repeat here the reasons given in
Our decision for rejecting defendant's contention and not disturbing the findings of fact of His Honor,
the Trial Judge, who had the decided advantage denied to Us of observing the behaviour of
the witnesses in the course of the trial and found those of the plaintiffs worthy of credence, not the
evidence for the defense.

It may not be amiss however, to stress the fact that, in his written report, made in transit from Wake
to Manila or immediately after the occurrence and before the legal implications or consequences
thereof could have been the object of mature deliberation, so that it could, in a way, be considered
as part of the res gestae Capt. Zentner stated that Zulueta had been off-loaded "due to drinking"
and "belligerent attitude," thereby belying the story of the defense about said alleged bomb-scare,
and confirming the view that said agent of the defendant had acted out of resentment because his
ego had been hurt by Mr. Zulueta's adamant refusal to be bullied by him. Indeed, had there been an
iota of truth in said story of the defense, Capt. Zentner would have caused every one of the
passengers to be frisked or searched and the luggage of all of them examined as it is done now
before resuming the flight from Wake Island. His failure to do so merely makes the artificious
nature of defendant's version more manifest. Indeed, the fact that Mrs. Zulueta and Miss Zulueta
were on board the plane shows beyond doubt that Mr. Zulueta could not possibly have intended to
blow it up.

The defense tries to explain its failure to introduce any evidence to contradict the testimony of Mr.
Zulueta as to why he had gone to the beach and what he did there, alleging that, in the very nature
of things, nobody else could have witnessed it. Moreover, the defense insists, inter alia, that the
testimony of Mr. Zulueta is inherently incredible because he had no idea as to how many toilets the
plane had; it could not have taken him an hour to relieve himself in the beach; there were eight (8)
commodes at the terminal toilet for men ; if he felt the need of relieving himself, he would have seen
to it that the soldiers did not beat him to the terminal toilets; he did not tell anybody about the reason
for going to the beach, until after the plane had taken off from Wake.

We find this pretense devoid of merit. Although Mr. Zulueta had to look for a secluded place in the
beach to relieve himself, beyond the view of others, defendant's airport manager, whom Mr. Zulueta
informed about it, soon after the departure of the plane, could have forthwith checked the veracity of
Mr. Zulueta's statement by asking him to indicate the specific place where he had been in the beach
and then proceeding thereto for purposes of verification.

Then, again, the passenger of a plane seldom knows how many toilets it has. As a general rule, his
knowledge is limited to the toilets for the class first class or tourist class in which he is. Then,
too, it takes several minutes for the passengers of big aircrafts, like those flying from the U.S. to the
Philippines, to deplane. Besides, the speed with which a given passenger may do so depends,
largely, upon the location of his seat in relation to the exit door. He cannot go over the heads of
those nearer than he thereto. Again, Mr. Zulueta may have stayed in the toilet terminal for some
time, expecting one of the commodes therein to be vacated soon enough, before deciding to go
elsewhere to look for a place suitable to his purpose. But he had to walk, first, from the plane to the
terminal building and, then, after vainly waiting therein for a while, cover a distance of about 400
yards therefrom to the beach, and seek there a place not visible by the people in the plane and in
the terminal, inasmuch as the terrain at Wake Island is flat. What is more, he must have had to
takeoff part, at least, of his clothing, because, without the facilities of a toilet, he had to wash himself
and, then, dry himself up before he could be properly attired and walk back the 400 yards that
separated him from the terminal building and/or the plane. Considering, in addition to the foregoing,
the fact that he was not feeling well, at that time, We are not prepared to hold that it could not have
taken him around an hour to perform the acts narrated by him.

But, why asks the defendant did he not reveal the same before the plane took off? The record
shows that, even before Mr. Zulueta had reached the ramp leading to the plane, Capt. Zentner was
already demonstrating at him in an intemperate and arrogant tone and attitude ("What do you think
you are?), thereby impelling Mr. Zulueta to answer back in the same vein. As a consequence, there
immediately ensued an altercation in the course of which each apparently tried to show that he could
not be cowed by the other. Then came the order of Capt. Zentner to off-load all of the Zuluetas,
including Mrs. Zulueta and the minor Miss Zulueta, as well as their luggage, their overcoats and
other effects handcarried by them; but, Mr. Zulueta requested that the ladies be allowed to continue
the trip. Meanwhile, it had taken time to locate his four (4) pieces of luggage. As a matter of fact,
only three (3) of them were found, and the fourth eventually remained in the plane. In short, the
issue between Capt. Zentner and Mr. Zulueta had been limited to determining whether the latter
would allow himself to be browbeaten by the former. In the heat of the altercation, nobody had
inquired about the cause of Mr. Zulueta's delay in returning to the plane, apart from the fact that it
was rather embarrassing for him to explain, in the presence and within the hearing of the
passengers and the crew, then assembled around them, why he had gone to the beach and why it
had taken him some time to answer there a call of nature, instead of doing so in the terminal
building.

Defendant's motion for reconsideration assails: (1) the amount of damages awarded as excessive;
(2) the propriety of accepting as credible plaintiffs' theory; (3) plaintiffs' right to recover either moral
or exemplary damages; (4) plaintiffs' right to recover attorney's fees; and (5) the non-enforcement of
the compromise agreement between the defendant and plaintiff's wife, Mrs. Zulueta. Upon the other
hand, plaintiffs' motion for reconsideration contests the decision of this Court reducing the amount of
damages awarded by the trial court to approximately one-half thereof, upon the ground, not only
that, contrary to the findings of this Court, in said decision, plaintiff had not contributed to the
aggravation of his altercation or incident with Capt. Zentner by reacting to his provocation with
extreme belligerency thereby allowing himself to be dragged down to the level on which said agent
of the defendant had placed himself, but, also, because the purchasing power of our local currency
is now much lower than when the trial court rendered its appealed decision, over five (5) years ago,
on July 5, 1967, which is an undeniable and undisputed fact. Precisely, for this reason, defendant's
characterization as exorbitant of the aggregate award of over P700,000 by way of damages, apart
from attorney's fees in the sum of P75,000, is untenable. Indeed, said award is now barely
equivalent to around 100,000 U. S. dollars.

It further support of its contention, defendant cites the damages awarded in previous cases to
passengers of airlines,8 as well as in several criminal cases, and some cases for libel and slander.
None of these cases is, however, in point. Said cases against airlines referred to passengers who
were merely constrained to take a tourist class accommodation, despite the fact that they had first
class tickets, and that although, in one of such cases, there was proof that the airline involved had
acted as it did to give preference to a "white" passenger, this motive was not disclosed until the trial
in court. In the case at bar, plaintiff Rafael Zulueta was "off-loaded" at Wake Island, for having dared
to retort to defendant's agent in a tone and manner matching, if not befitting his intemperate
language and arrogant attitude. As a consequence, Capt. Zentner's attempt to humiliate Rafael
Zulueta had boomeranged against him (Zentner), in the presence of the other passengers and the
crew. It was, also, in their presence that defendant's agent had referred to the plaintiffs as
"monkeys," a racial insult not made openly and publicly in the abovementioned previous cases
against airlines.

In other words, Mr. Zulueta was off-loaded, not to protect the safety of the aircraft and its
passengers, but to retaliate and punish him for the embarrassment and loss of face thus suffered by
defendant's agent. This vindictive motive is made more manifest by the note delivered to Mr. Zulueta
by defendant's airport manager at Wake Island, Mr. Sitton, stating that the former's stay therein
would be "for a minimum of one week," during which he would be charged $13.30 per day. This
reference to a "minimum of one week" revealed the intention to keep him there stranded that long,
for no other plane, headed for Manila, was expected within said period of time, although Mr. Zulueta
managed to board, days later, a plane that brought him to Hawaii, whence he flew back to the
Philippines, via Japan.

Neither may criminal cases, nor the cases for libel and slander cited in the defendant's motion for
reconsideration, be equated with the present case. Indeed, in ordinary criminal cases, the award for
damages is, in actual practice, of purely academic value, for the convicts generally belong to the
poorest class of society. There is, moreover, a fundamental difference between said cases and the
one at bar. The Zuluetas had a contract of carriage with the defendant, as a common carrier,
pursuant to which the latter was bound, for a substantial monetary consideration paid by the former,
not merely to transport them to Manila, but, also, to do so with "extraordinary diligence" or "utmost
diligence."9 The responsibility of the common carrier, under said contract, as regards the passenger's
safety, is of such a nature, affecting as it does public interest, that it "cannot be dispensed with" or
even "lessened by stipulation, by the posting of notices, by statements on tickets, or otherwise." 10 In
the present case, the defendant did not only fail to comply with its obligation to transport Mr. Zulueta
to Manila, but, also, acted in a manner calculated to humiliate him, to chastise him, to make him
suffer, to cause to him the greatest possible inconvenience, by leaving him in a desolate island, in
the expectation that he would be stranded there for a "minimum of one week" and, in addition
thereto, charged therefor $13.30 a day.

It is urged by the defendant that exemplary damages are not recoverable in quasi-delicts, pursuant
to Article 2231 of our Civil Code, except when the defendant has acted with "gross negligence," and
that there is no specific finding that it had so acted. It is obvious, however, that in off-loading plaintiff
at Wake Island, under the circumstances heretofore adverted to, defendant's agents had acted with
malice aforethought and evident bad faith. If "gross negligence" warrants the award of exemplary
damages, with more reason is its imposition justified when the act performed is deliberate, malicious
and tainted with bad faith. Thus, in Lopez v. PANAM, 11 We held:

The rationale behind exemplary or corrective damages is, as the name implies, to
provide an example or correction for public good. Defendant having breached its
contracts in bad faith, the court, as stated earlier, may award exemplary damages in
addition to moral damages (Articles 2229, 2232, New Civil Code.)

Similarly, in NWA v. Cuenca, 12 this Court declared that an award for exemplary damages was
justified by the fact that the airline's "agent had acted in a wanton, reckless and oppressive manner"
in compelling Cuenca, upon arrival at Okinawa, to transfer, over his objection, from the first class,
where he was accommodated from Manila to Okinawa, to the tourist class, in his trip to Japan,
"under threat of otherwise leaving him in Okinawa," despite the fact that he had paid in full the first
class fare and was issued in Manila a first class ticket.

Defendant cites Rotea v. Halili, 13 in support of the proposition that a principal is not liable for
exemplary damages owing to acts of his agent unless the former has participated in said acts or
ratified the same. Said case involved, however, the subsidiary civil liability of an employer arising
from criminal acts of his employee, and "exemplary damages ... may be imposed when the crime
was committed with one or more aggravating circumstances." 14 Accordingly, the Rotea case is not in
point, for the case at bar involves a breach of contract, as well as a quasi-delict.

Neither may the case of Palisoc v. Brillantes, 15invoked by the defendant, be equated with the case at
bar. The Palisoc case dealt with the liability of school officials for damages arising from the death of
a student (Palisoc) due to fist blows given by another student (Daffon), in the course of a quarrel
between them, while in a laboratory room of the Manila Technical Institute. In an action for damages,
the head thereof and the teacher in charge of said laboratory were held jointly and severally liable
with the student who caused said death, for failure of the school to provide "adequate supervision
over the activities of the students in the school premises," to protect them "from harm, whether at the
hands of fellow students or other parties." Such liability was predicated upon Article 2180 of our Civil
Code, the pertinent part of which reads:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible.
 xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they remain
in their custody.

xxx xxx xxx

Obviously, the amount of damages warded in the Palisoc case is not and cannot serve as the
measure of the damages recoverable in the present case, the latter having been
caused directly andintentionally by an employee or agent of the defendant, whereas the student who
killed the young Palisoc was in no wise an agent of the school. Moreover, upon her arrival in the
Philippines, Mrs. Zulueta reported her husband's predicament to defendant's local manager and
asked him to forthwith have him (Mr. Zulueta) brought to Manila, which defendant's aforementioned
manager refused to do, thereby impliedly ratifying the off-loading of Mr. Zulueta at Wake Island.

It is next urged that, under the contract of carriage with the defendant, Mr. Zulueta was bound to be
present at the time scheduled for the departure of defendant's plane and that he had, consequently,
violated said contract when he did not show up at such time. This argument might have had some
weight had defendant's plane taken off before Mr. Zulueta had shown up. But the fact is that he was
ready, willing and able to board the plane about two hours before it actually took off, and that he was
deliberately and maliciously off-loaded on account of his altercation with Capt. Zentner. It should,
also, be noted that, although Mr. Zulueta was delayed some 20 to 30 minutes, the arrival or
departure of planes is often delayed for much longer periods of time. Followed to its logical
conclusion, the argument adduced by the defense suggests that airlines should be held liable for
damages due to the inconvenience and anxiety, aside from actual damages, suffered by many
passengers either in their haste to arrive at the airport on scheduled time just to find that their plane
will not take off until later, or by reason of the late arrival of the aircraft at its destination.

PANAM impugns the award of attorney's fees upon the ground that no penalty should be imposed
upon the right to litigate; that, by law, it may be awarded only in exceptional cases; that the claim for
attorney's fees has not been proven; and that said defendant was justified in resisting plaintiff's claim
"because it was patently exorbitant."

Nothing, however, can be farther from the truth. Indeed apart from plaintiff's claim for actual
damages, the amount of which is not contested, plaintiffs did not ask any specific sum by way of
exemplary and moral damages, as well as attorney's fees, and left the amount thereof to the "sound
discretion" of the lower court. This, precisely, is the reason why PANAM, now, alleges without
justification that the lower court had no jurisdiction over the subject matter of the present case.

Moreover, Article 2208 of our Civil Code expresslyauthorizes the award of attorney's fees "when
exemplary damages are awarded," as they are in this case as well as "in any other case where
the court deems it just and equitable that attorney's fees ... be recovered," and We so deem it just
and equitable in the present case, considering the "exceptional" circumstances obtaining therein,
particularly the bad faith with which defendant's agent had acted, the place where and the conditions
under which Rafael Zulueta was left at Wake Island, the absolute refusal of defendant's manager in
Manila to take any step whatsoever to alleviate Mr. Zulueta's predicament at Wake and have him
brought to Manila which, under their contract of carriage, was defendant's obligation to discharge
with "extra-ordinary" or "utmost" diligence and, the "racial" factor that had, likewise, tainted the
decision of defendant's agent, Capt. Zentner, to off-load him at Wake Island.
As regards the evidence necessary to justify the sum of P75,000 awarded as attorney's fees in this
case, suffice it to say that the quantity and quality of the services rendered by plaintiffs' counsel
appearing on record, apart from the nature of the case and the amount involved therein, as well as
his prestige as one of the most distinguished members of the legal profession in the Philippines, of
which judicial cognizance may be taken, amply justify said award, which is a little over 10% of the
damages (P700,000) collectible by plaintiffs herein. Indeed, the attorney's fees in this case is
proportionally much less than that adjudged in Lopez v. PANAM 16in which the judgment rendered for
attorney's fees (P50,000) was almost 20% of the damages (P275,000) recovered by the plaintiffs
therein.

The defense assails the last part of the decision sought to be reconsidered, in which relying upon
Article 172 of our Civil Code, which provides that "(t)he wife cannot bind the conjugal partnership
without the husband's consent, except in cases provided by law," and it is not claimed that this is one
of such cases We denied a motion, filed by Mrs. Zulueta, for the dismissal of this case, insofar as
she is concerned - she having settled all her differences with the defendant, which appears to have
paid her the sum of P50,000 therefor - "without prejudice to this sum being deducted from the award
made in said decision." Defendant now alleges that this is tantamount to holding that said
compromise agreement is both effective and ineffective.

This, of course, is not true. The payment is effective, insofar as it is deductible from the award, and,
because it is due (or part of the amount due) from the defendant, with or without its compromise
agreement with Mrs. Zulueta. What is ineffective is the compromise agreement, insofar as the
conjugal partnership is concerned. Mrs. Zulueta's motion was for the dismissal of the case insofar as
she was concerned, and the defense cited in support thereof Article 113 of said Code, pursuant to
which "(t)he husband must be joined in all suits by or against the wife except: ... (2) If they have in
fact been separated for at least one year." This provision, We held, however, refers to suits in which
the wife is the principal or real party in interest, not to the case at bar, "in which the husband is the
main party in interest, both as the person principally aggrieved and as administrator of the conjugal
partnership ... he having acted in this capacity in entering into the contract of carriage with PANAM
and paid the amount due to the latter, under the contract, with funds of the conjugal partnership," to
which the amounts recoverable for breach of said contract, accordingly, belong. The damages
suffered by Mrs. Zulueta were mainly an in accident of the humiliation to which her husband had
been subjected. The Court ordered that said sum of P50,00 paid by PANAM to Mrs. Zulueta be
deducted from the aggregate award in favor of the plaintiffs herein for the simple reason that upon
liquidation of the conjugal partnership, as provided by law, said amount would have to be reckoned
with, either as part of her share in the partnership, or as part of the support which might have been
or may be due to her as wife of Rafael Zulueta. It would surely be inane to sentence the defendant to
pay the P700,000 due to the plaintiffs and to direct Mrs. Zulueta to return said P50,000 to the
defendant.

In this connection, it is noteworthy that, for obvious reasons of public policy, she is not allowed by
law to waive her share in the conjugal partnership, before the dissolution thereof. 17 She cannot even
acquire any property by gratuitous title, without the husband's consent, except from her ascendants,
descendants, parents-in-law, and collateral relatives within the fourth degree. 18

It is true that the law favors and encourages the settlement of litigations by compromise agreement
between the contending parties, but, it certainly does not favor a settlement with one of the spouses,
both of whom are plaintiffs or defendants in a common cause, such as the defense of the rights of
the conjugal partnership, when the effect, even if indirect, of the compromise is to jeopardize "the
solidarity of the family" which the
law 19 seeks to protect by creating an additional cause for the misunderstanding that had arisen
between such spouses during the litigation, and thus rendering more difficult a reconciliation
between them.
It is urged that there is no proof as to the purpose of the trip of the plaintiffs, that neither is there any
evidence that the money used to pay the plane tickets came from the conjugal funds and that the
award to Mrs. Zulueta was for her personal suffering or injuries. There was, however, no individual
or specific award in favor of Mrs. Zulueta or any of the plaintiffs. The award was made in their favor
collectively. Again, in the absence of said proof, the presumption is that the purpose of the trip was
for the common benefit of the plaintiffs and that the money had come from the conjugal funds, for,
unless there is proof to the contrary, it is presumed "(t)hat things have happened according to the
ordinary course of nature and the ordinary habits of life." 20 In fact Manresa maintains 21 that they are
deemed conjugal, when the source of the money used therefor is not established, even if the
purchase had been made by the wife. 22 And this is the rule obtaining in the Philippines. Even
property registered, under the Torrens system, in the name of one of the spouses, or in that of the
wife only, if acquired during the marriage, is presumed to belong to the conjugal partnership, unless
there is competent proof to the contrary. 23

PANAM maintains that the damages involved in the case at bar are not among those forming part of
the conjugal partnership pursuant to Article 153 of the Civil Code, reading:

ART. 153. The following are conjugal partnership property:

(1) That which is acquired by onerous title during the marriage at the expense of the
common fund, whether the acquisition be for the partnership, or for only one of the
spouses;

(2) That which is obtained by the industry, or work, or as salary of the spouses, or of
either of them;

(3) The fruits, rents or interests received or due during the marriage, coming from the
common property or from the exclusive property of each spouse.

Considering that the damages in question have arisen from, inter alia, a breach of plaintiffs' contract
of carriage with the defendant, for which plaintiffs paid their fare with funds presumably belonging to
the conjugal partnership, We hold that said damages fall under paragraph (1) of said Article 153, the
right thereto having been "acquired byonerous title during the marriage ... ." This conclusion is
bolstered up by Article 148 of our Civil Code, according to which:

ART. 148. The following shall be the exclusive property of each spouse:

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires, during the marriage, by lucrative title;

(3) That which is acquired by right of redemption or by exchange with other property
belonging to only one of the spouses;

(4) That which is purchased with exclusive money of the wife or of the husband.

The damages involved in the case at bar do not come under any of these provisions or of the other
provisions forming part of Chapter 3, Title VI, of Book I of the Civil Code, which chapter is entitled
"Paraphernal Property." What is more, if "(t)hat which is acquired by right of redemption or by
exchange with other property belonging to only one of the spouses," and "(t)hat which is purchased
with exclusive money of the wife or of the husband," 24belong exclusively to such wife or husband, it
follows necessarily that that which is acquired with money of the conjugal partnership belongs
thereto or forms part thereof. The rulings in Maramba v. Lozano 25 and Perez v. Lantin, 26 cited in
defendant's motion for reconsideration, are, in effect, adverse thereto. In both cases, it was merely
held that the presumption under Article 160 of our Civil Code to the effect that all property of the
marriage belong to the conjugal partnership does not apply unless it is shown that it was acquired
during marriage. In the present case, the contract of carriage was concededly entered into, and the
damages claimed by the plaintiffs were incurred, during marriage. Hence, the rights accruing from
said contract, including those resulting from breach thereof by the defendant, are presumed to
belong to the conjugal partnership of Mr. and Mrs. Zulueta. The fact that such breach of contract was
coupled, also, with a quasi-delict constitutes an aggravating circumstance and can not possibly have
the effect of depriving the conjugal partnership of such property rights.

Defendant insists that the use of conjugal funds to redeem property does not make the property
redeemed conjugal if the right of redemption pertained to the wife. In the absence, however,
ofproof that such right of redemption pertains to the wife and there is no proof that the contract of
carriage with PANAM or the money paid therefor belongs to Mrs. Zulueta the property involved, or
the rights arising therefrom, must be presumed, therefore, to form part of the conjugal partnership.

It is true that in Lilius v. Manila Railroad Co., 27 it was held that the "patrimonial and moral damages"
awarded to a young and beautiful woman by reason of a scar in consequence of an injury
resulting from an automobile accident which disfigured her face and fractured her left leg, as well
as caused a permanent deformity, are her paraphernal property. Defendant cites, also, in support of
its contention the following passage from Colin y Capitant:

No esta resuelta expresamente en la legislacion espaola la cuestion de si las

indemnizaciones debidas por accidentes del trabaho tienen la consideracion de
gananciales, o son bienes particulares de los conyuges.

Inclinan a la solucion de que estas indemnizaciones deben ser consideradas como

gananciales, el hecho de que la sociedad pierde la capacidad de trabajocon el
accidente, que a ella le pertenece, puesto que de la sociedad son losfrutos de ese
trabajo; en cambio, la consideracion de que igual manera que losbienes que
sustituyen a los que cada conyuge lleva al matrimonio como propiostienen el
caracter de propios, hace pensar que las indemnizaciones que vengana suplir la
capacidad de trabajo aportada por cada conyuge a la sociedad, debenser
juridicamente reputadas como bienes propiosdel conyuge que haya sufrido
elaccidente. Asi se llega a la misma solucion aportada por la jurisprudencia
francesca. 28

This opinion is, however, undecisive, to say the least. It should be noted that Colin y Capitant were
commenting on the French Civil Code; that their comment referred to indemnities due in
consequence of "accidentes del trabajo "resulting inphysical injuries sustained by one of the spouses
(which Mrs. Zulueta has not suffered); and that said commentators admit that the question whether
or not said damages are paraphernal property or belong to the conjugal partnership is not settled
under the Spanish law. 29 Besides, the French law and jurisprudence to which the comments of
Planiol and Ripert, likewise, refer are inapposite to the question under consideration,
because they differ basically from the Spanish law in the treatment of the property relations between
husband and wife. Indeed, our Civil Code, like the Spanish Civil Code, favors the system of conjugal
partnership of gains. Accordingly, the former provides that, "(i)n the absence of marriage
settlements, or when the same are void, the system of relative community or conjugal partnership of
gains ... shall govern the property relations between" the spouses. 30 Hence, "(a)ll property of the
marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains
exclusively to the husband or to the wife." 31

No similar rules are found in the French Civil Code. What is more, under the provisions thereof, the
conjugal partnership exists only when so stipulated in the "capitulaciones matrimoniales" or by way
of exception. In the language of Manresa

Prescindimos de los preceptos de los Condigos de Francia, Italia, Holanda, Portugal,

Alemania y Suiza, porsue solo excepcionalmente, o cuando asi se pacta en las
capitulaciones, admiten el sistema de gananciales. 32

Again, Colin y Capitant, as well as the Lilius case, refer to damages recovered for physical injuries
suffered by the wife. In the case at bar, the party mainly injured, although not physically, is the
husband.

Accordingly, the other Philippine cases 33 and those from Louisiana whose civil law is based upon
the French Civil Code cited by the defendant, which similarly refer to moral damages due to
physical injuries suffered by the wife, are, likewise, inapplicable to the case at bar.

We find, therefore, no plausible reason to disturb the views expressed in Our decision promulgated
on February 29, 1972.

WHEREFORE, the motions for reconsideration above-referred to should be, as they are hereby
denied

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 180440 December 5, 2012

DR. GENEVIEVE L. HUANG, Petitioner,

vs.
PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO., LTD. And FIRST LEPANTO TAISHO
INSURANCE CORPORATION, Respondents.

DECISION

PEREZ, J.:

For this Courts resolution is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the Decision1 of the Court of Appeals in CA-G.R. CV No. 87065 dated 9 August 2007,
affirming the Decision2 of Branch 56 of the Regional Trial Court (RTC) of Makati City in Civil Case
No. 96-1367 dated 21 February 2006, dismissing for lack of merit herein petitioner Dr. Genevieve L.
Huangs Complaint for Damages. Assailed as well is the Court of Appeals Resolution 3 dated 5
November 2007 denying for lack of merit petitioners Motion for Reconsideration.

This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr.
Genevieve L. Huang4 against herein respondents Philippine Hoteliers, Inc. (PHI)5 and Dusit Thani
Public Co., Ltd. (DTPCI),6 as owners of Dusit Thani Hotel Manila (Dusit Hotel);7 and co-respondent
First Lepanto Taisho Insurance Corporation (First Lepanto),8 as insurer of the aforesaid hotel. The
said Complaint was premised on the alleged negligence of respondents PHI and DTPCIs staff, in
the untimely putting off all the lights within the hotels swimming pool area, as well as the locking of
the main entrance door of the area, prompting petitioner to grope for a way out. While doing so, a
folding wooden counter top fell on her head causing her serious brain injury. The negligence was
allegedly compounded by respondents PHI and DTPCIs failure to render prompt and adequate
medical assistance.

Petitioners version of the antecedents of this case is as follows:

On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her friend,
petitioner Dr. Genevieve L. Huang, for a swim at the hotels swimming pool facility. They started
bathing at around 5:00 p.m. At around 7:00 p.m., the hotels swimming pool attendant informed them
that the swimming pool area was about to be closed. The two subsequently proceeded to the
shower room adjacent to the swimming pool to take a shower and dress up. However, when they
came out of the bathroom, the entire swimming pool area was already pitch black and there was no
longer any person around but the two of them. They carefully walked towards the main door leading
to the hotel but, to their surprise, the door was locked.9

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

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

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

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

Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a neurologist from Makati
Medical Center, who required her to have an X-ray and a Magnetic Resonance Imaging (MRI)
tests.14The MRI Report15 dated 23 August 1995 revealed the following findings:

CONSULTATION REPORT:
MRI examination of the brain shows scattered areas of intraparenchymal contusions and involving
mainly the left middle and posterior temporal and slightly the right anterior temporal lobe.

Other small areas of contusions with suggestive pertechiae are seen in the left fronto-parietal, left
parieto-occipital and with deep frontal periventricular subcortical and cortical regions. There is no
mass effect nor signs of localized hemorrhagic extravasation.

The ventricles are not enlarged, quite symmetrical without shifts or deformities; the peripheral sulci
are within normal limits.

The C-P angles, petromastoids, sella, extrasellar and retro orbital areas appear normal.

The brainstem is unremarkable.

IMPRESSION: Scattered small intraparenchymal contusions mainly involving the left middle-
posterior temporal lobe and also right medial anterior temporal, both deep frontal subcortical, left
parieto-occipital subcortical and cortical regions. Ischemic etiology not ruled out. No localized intra -
or extracerebral hemorrhage.16

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

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

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

By reason of the unfortunate 11 June 1995 incident inside the hotels swimming pool area, petitioner
also started to feel losing her memory, which greatly affected and disrupted the practice of her
chosen profession.23 Thus, on 25 October 1995, petitioner, through counsel, sent a demand letter24 to
respondents PHI and DTPCI seeking payment of an amount not less than P100,000,000.00
representing loss of earnings on her remaining life span. But, petitioners demand was unheeded.

In November 1995, petitioner went to the United States of America (USA) for further medical
treatment. She consulted a certain Dr. Gerald Steinberg and a certain Dr. Joel Dokson25 from Mount
Sinai Hospital who both found that she has "post traumatic-post concussion/contusion cephalgias-
vascular and neuralgia."26 She was then prescribed to take some medications for severe pain and to
undergo physical therapy. Her condition did not improve so she returned to the Philippines.27

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

Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr. Lopez), an
ophthalmologist from the Makati Medical Center, because of her poor vision, which she has
experienced for several months.29 Petitioners Eye Report dated 5 March 199630 issued by Dr. Lopez
stated: "IMPRESSION: Posterior vitreous detachment, right eye of floaters." Dr. Lopez told petitioner
that her detached eye is permanent and very serious. Dr. Lopez then prescribed an eye drop to
petitioner.31

For petitioners frustration to dissipate and to regain her former strength and physical well-being, she
consulted another neuro-surgeon from Makati Medical Center by the name of Dr. Leopoldo P.
Pardo, Jr. (Dr. Pardo, Jr.).32 She disclosed to Dr. Pardo, Jr. that at the age of 18 she suffered a stroke
due to mitral valve disease and that she was given treatments, which also resulted in
thrombocytopenia. In Dr. Pardo, Jr.s medical evaluation of petitioner dated 15 May 1996,33 he made
the following diagnosis and opinion:

DIAGNOSIS AND OPINION:

This patient sustained a severe head injury in (sic) 11 June 1995 and as a result of which she
developed the following injuries:

1. Cerebral Concussion and Contusion

2. Post-traumatic Epilepsy

3. Post-concussional Syndrome

4. Minimal Brain Dysfunction

5. Cervical Sprain, chronic recurrent

It is my opinion that the symptoms she complained of in the foregoing history are all related to and a
result of the injury sustained on 11 June 1995.

It is further my opinion that the above diagnosis and complaints do materially affect her duties and
functions as a practicing physician and dermatologist, and that she will require treatment for an
undetermined period of time.

The percentage of disability is not calculated at this time and will require further evaluation and
observation.34

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

Petitioner likewise consulted a certain Dr. Tenchavez36 for her follow-up EEG.37 He similarly
prescribed medicine for petitioners deep brain injury. He also gave her pain killer for her headache
and advised her to undergo physical therapy. Her symptoms, however, persisted all the more.38

In 1999, petitioner consulted another neurologist at the Makati Medical Center by the name of Dr.
Martesio Perez (Dr. Perez) because of severe fleeting pains in her head, arms and legs; difficulty in
concentration; and warm sensation of the legs, which symptoms also occurred after the 11 June
1995 incident. Upon examination, Dr. Perez observed that petitioner has been experiencing severe
pains and she has a slight difficulty in concentration. He likewise noted that there was a slight spasm
of petitioners neck muscle but, otherwise, there was no objective neurologic finding. The rest of
petitioners neurologic examination was essentially normal.39
Dr. Perezs neurologic evaluation40 of petitioner reflected, among others: (1) petitioners past medical
history, which includes, among others, mitral valve stenosis; (2) an interpretation of petitioners EEG
results in October 1995 and in January 1999, i.e., the first EEG showed sharp waves seen bilaterally
more on the left while the second one was normal; and (3) interpretation of petitioners second MRI
result, i.e., petitioner has a permanent damage in the brain, which can happen either after a head
injury or after a stroke. Dr. Perez concluded that petitioner has post-traumatic or post concussion
syndrome.41

Respondents, on the other hand, denied all the material allegations of petitioner and, in turn,
countered the latters statement of facts, thus:

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

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

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

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

Afterwards, Dr. Dalumpines went back to petitioner and checked the latters condition. Petitioner
insisted that she was fine and that the hirudoid cream was enough. Having been assured that
everything was fine, Dr. Dalumpines requested petitioner to execute a handwritten
certification47regarding the incident that occurred that night. Dr. Dalumpines then suggested to
petitioner to have an X-ray test. Petitioner replied that it was not necessary. Petitioner also refused
further medical attention.48
On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had nothing to do with the
11 June 1995 incident. Instead, petitioner merely engaged in small talk with Dr. Dalumpines while
having her daily massage. The two talked about petitioners personal matters, i.e., past medical
history, differences with siblings and family over inheritance and difficulty in practice. Petitioner even
disclosed to Dr. Dalumpines that she once fell from a horse; that she had a stroke; had hysterectomy
and is incapable of having children for her uterus had already been removed; that she had blood
disorder, particularly lack of platelets, that can cause bleeding; and she had an "on" and "off"
headaches. Petitioner oftentimes called Dr. Dalumpines at the hotel clinic to discuss topics similar to
those discussed during their 13 June 1995 conversation.49

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

CERTIFICATION

This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to
an accident at the poolside at 7:45PM on 11 June 1995.

Same records show that there, she saw petitioner who claimed the folding countertop fell on her
head when she lifted it to enter the lifeguards counter to use the phone. She asked for Hirudoid.

The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After narrating the poolside
incident and declining Dr. Dalumpines offer of assistance, she reiterated that the Hirudoid cream
was enough and that petitioner being a doctor herself, knew her condition and she was all right.

This certification is given upon the request of petitioner for whatever purpose it may serve, 7
September 1995 at Makati City.51 (Emphasis supplied).

Petitioner personally picked up the afore-quoted Certification at the hotel clinic without any objection
as to its contents.52

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

After trial, the court a quo in its Decision dated 21 February 2006 dismissed petitioners Complaint
for lack of merit.

The trial court found petitioners testimony self-serving, thus, devoid of credibility. Petitioner failed to
present any evidence to substantiate her allegation that the lights in the hotels swimming pool area
were shut off at the time of the incident. She did not even present her friend, Delia, to corroborate
her testimony. More so, petitioners testimony was contradicted by one of the witnesses presented
by the respondents who positively declared that it has been a normal practice of the hotel
management not to put off the lights until 10:00 p.m. to allow the housekeepers to do the cleaning of
the swimming pool surroundings, including the toilets and counters. Also, the lights were kept on for
security reasons and for the people in the nearby gym to have a good view of the swimming pool
while doing their exercise routine. Besides, there was a remote possibility that the hotels swimming
pool area was in complete darkness as the aforesaid gym was then open until 10:00 p.m., and the
lights radiate to the hotels swimming pool area. As such, petitioner would not have met the accident
had she only acted with care and caution.54
The trial court further struck down petitioners contention that the hotel management did not extend
medical assistance to her in the aftermath of the accident. Records showed that the hotel
management immediately responded after being notified of the accident. The hotel nurse and the
two chambermaids placed an ice pack on petitioners head. They were willing to extend further
emergency assistance but petitioner refused and merely asked for a hirudoid cream. Petitioner even
told them she is a doctor and she was fine. Even the medical services offered by the hotel physician
were turned down by petitioner. Emphatically, petitioner cannot fault the hotel for the injury she
sustained as she herself did not heed the warning that the swimming pool area is open only from
7:00 a.m. to 7:00 p.m. As such, since petitioners own negligence was the immediate and proximate
cause of her injury, she cannot recover damages.55

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

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

With regard to respondent First Lepantos liability, the trial court ruled that under the contract of
insurance, suffice it to state that absent any cause for any liability against respondents PHI and
DTPCI, respondent First Lepanto cannot be made liable thereon.

Dissatisfied, petitioner elevated the matter to the Court of Appeals with the following assignment of
errors: (1) the trial court erred in finding that the testimony of petitioner is self-serving and thus void
of credibility; (2) the trial court erred in applying the doctrine of proximate cause in cases of breach of
contract and even assuming arguendo that the doctrine is applicable, petitioner was able to prove by
sufficient evidence the causal connection between her injuries and respondents PHI and DTPCIs
negligent act; and (3) the trial court erred in holding that petitioner is not entitled to damages.58

On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings and conclusions
of the trial court.

The Court of Appeals ratiocinated in this wise:

At the outset, it is necessary for our purpose to determine whether to decide this case on the theory
that herein respondents PHI and DTPCI are liable for breach of contract or on the theory of quasi-
delict.

xxxx

It cannot be gainsaid that herein petitioners use of the hotels pool was only upon the invitation of
Delia, the hotels registered guest. As such, she cannot claim contractual relationship between her
and the hotel. Since the circumstances of the present case do not evince a contractual relation
between petitioner and respondents, the rules on quasi-delict , thus, govern.

The pertinent provision of Art. 2176 of the Civil Code which states: "Whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called
quasi-delict."

A perusal of Article 2176 shows that obligations arising from quasi-delict or tort, also known as extra-
contractual obligations, arise only between parties not otherwise bound by contract, whether express
or implied. Thus, to sustain a claim liability under quasi-delict, the following requisites must concur:
(a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person
for whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff.

Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its
employees were negligent? We do not think so. Several factors militate against petitioners
contention.

One. Petitioner recognized the fact that the pool areas closing time is 7:00 p.m.. She,
herself, admitted during her testimony that she was well aware of the sign when she and
Delia entered the pool area. Hence, upon knowing, at the outset, of the pools closing time,
she took the risk of overstaying when she decided to take shower and leave the area beyond
the closing hour. In fact, it was only upon the advise of the pool attendants that she
thereafter took her shower.

Two. She admitted, through her certification that she lifted the wooden bar countertop, which
then fell onto her head. The admission in her certificate proves the circumstances
surrounding the occurrence that transpired on the night of 11 June 1995. This is contrary to
her assertion in the complaint and testimony that, while she was passing through the counter
door, she was suddenly knocked out by a hard and heavy object. In view of the fact that she
admitted having lifted the counter top, it was her own doing, therefore, that made the counter
top fell on to her head.

Three. We cannot likewise subscribe to petitioners assertion that the pool area was totally
dark in that she herself admitted that she saw a telephone at the counter after searching for
one. It must be noted that petitioner and Delia had walked around the pool area with ease
since they were able to proceed to the glass entrance door from shower room, and back to
the counter area where the telephone was located without encountering any untoward
incident. Otherwise, she could have easily stumbled over, or slid, or bumped into something
while searching for the telephone. This negates her assertion that the pool area was
completely dark, thereby, totally impairing her vision.

xxxx
The aforementioned circumstances lead us to no other conclusion than that the proximate and
immediate cause of the injury of petitioner was due to her own negligence.

Moreover, petitioner failed to sufficiently substantiate that the medical symptoms she is currently
experiencing are the direct result of the head injury she sustained on 11 June 1995 as was aptly
discussed in the lower courts findings.

xxxx

It bears stressing that in civil cases, the law requires that the party who alleges a fact and
substantially asserts the affirmative of the issue has the burden of proving it. Hence, for petitioner to
be entitled to damages, she must show that she had suffered an actionable injury. Regrettably,
petitioner failed in this regard.59 (Emphasis supplied).

Petitioners Motion for Reconsideration was denied for lack of merit in a Resolution dated 5
November 2007.

Hence, this Petition raising the following issues:

(1) Whether or not the findings of fact of the trial court and of the Court of Appeals are
conclusive in this case.

(2) Whether or not herein respondents PHI and DTPCI are responsible by implied contract to
exercise due care for the safety and welfare of the petitioner.

(3) Whether or not the cause of action of the petitioner can be based on both breach of
contract and tort.

(4) Whether or not it is respondents PHI and DTPCI and its employees who are liable to the
petitioner for negligence, applying the well-established doctrines of res ipsa loquitur and
respondeat superior.

(5) Whether the petitioners debilitating and permanent injuries were a result of the accident
she suffered at the hotel on 11 June 1995.

(6) Whether or not the petitioner is entitled to the payment of damages, attorneys fees,
interest, and the costs of suit.

(7) Whether or not the respondent insurance company is liable, even directly, to the
petitioner.

(8) Whether or not petitioners motion for reconsideration of the decision of the Court of
Appeals is pro forma.60

Petitioner argues that the rule that "findings of fact of the lower courts are conclusive and must be
respected on appeal" finds no application herein because this case falls under the jurisprudentially
established exceptions. Moreover, since the rationale behind the afore-mentioned rule is that "the
trial judge is in a vantage point to appreciate the conduct and behavior of the witnesses and has the
unexcelled opportunity to evaluate their testimony," one logical exception to the rule that can be
deduced therefrom is when the judge who decided the case is not the same judge who heard and
tried the case.
Petitioner further faults the Court of Appeals in ruling that no contractual relationship existed
between her and respondents PHI and DTPCI since her use of the hotels swimming pool facility
was only upon the invitation of the hotels registered guest. On the contrary, petitioner maintains that
an implied contract existed between them in view of the fact that the hotel guest status extends to all
those who avail of its servicesits patrons and invitees. It follows then that all those who patronize
the hotel and its facilities, including those who are invited to partake of those facilities, like petitioner,
are generally regarded as guests of the hotel. As such, respondents PHI and DTPCI are responsible
by implied contract for the safety and welfare of petitioner while the latter was inside their premises
by exercising due care, which they failed to do.

Petitioner even asserts that the existence of a contract between the parties does not bar any liability
for tort since the act that breaks a contract may also be a tort. Hence, the concept of change of
theory of cause of action pointed to by respondents is irrelevant.

Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat superior are
applicable in this case. She argues that a person who goes in a hotel without a "bukol" or hematoma
and comes out of it with a "bukol" or hematoma is a clear case of res ipsa loquitur. It was an accident
caused by the fact that the hotel staff was not present to lift the heavy counter top for petitioner as is
normally expected of them because they negligently locked the main entrance door of the hotels
swimming pool area. Following the doctrine of res ipsa loquitur, respondents PHI and DTPCIs
negligence is presumed and it is incumbent upon them to prove otherwise but they failed to do so.
Further, respondents PHI and DTPCI failed to observe all the diligence of a good father of a family in
the selection and supervision of their employees, hence, following the doctrine of respondeat
superior, they were liable for the negligent acts of their staff in not verifying if there were still people
inside the swimming pool area before turning off the lights and locking the door. Had respondents
PHI and DTPCIs employees done so, petitioner would not have been injured. Since respondents
PHI and DTPCIs negligence need not be proved, the lower courts erred in shifting the burden to
petitioner and, thereafter, holding the hotel and its employees not negligent for petitioners failure to
prove their negligence. Moreover, petitioner alleges that there was no contributory negligence on her
part for she did not do anything that could have contributed to her injury. And, even if there was, the
same does not bar recovery.

Petitioner equally declares that the evidence on record, including the objective medical findings, had
firmly established that her permanent debilitating injuries were the direct result of the 11 June 1995
accident inside the hotels swimming pool area. This fact has not been totally disputed by the
respondents. Further, the medical experts who had been consulted by petitioner were in unison in
their diagnoses of her condition. Petitioner was also able to prove that the falling of the folding
wooden counter top on her head while she was at the hotels swimming pool area was the cause of
her head, eye and neck injuries.

Petitioner reiterates her claim for an award of damages, to wit: actual, including loss of income;
moral, exemplary; as well as attorneys fees, interest and costs of suit. She states that respondents
PHI and DTPCI are liable for quasi-delict under Articles 19, 2176 and 2180 of the New Civil Code. At
the same time, they are liable under an implied contract for they have a public duty to give due
courtesy, to exercise reasonable care and to provide safety to hotel guests, patrons and invitees.
Respondent First Lepanto, on the other hand, is directly liable under the express contract of
insurance.

Lastly, petitioner contends that her Motion for Reconsideration before the Court of Appeals was not
pro forma for it specifically pointed out the alleged errors in the Court of Appeals Decision.

The instant Petition is devoid of merit.

Primarily, only errors of law and not of facts are reviewable by this Court in a Petition for Review on
Certiorari under Rule 45 of the Rules of Court.61 This Court is not a trier of facts and it is beyond its
function to re-examine and weigh anew the respective evidence of the parties.62 Besides, this Court
adheres to the long standing doctrine that the factual findings of the trial court, especially when
affirmed by the Court of Appeals, are conclusive on the parties and this Court.63 Nonetheless, this
Court has, at times, allowed exceptions thereto, to wit:

(a) When the findings are grounded entirely on speculation, surmises, or conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the Court of Appeals went beyond the issues of the case, or
its findings are contrary to the admissions of both the appellant and the appellee;

(g) When the Court of Appeals findings are contrary to those by the trial court;

(h) When the findings are conclusions without citation of specific evidence on which they are
based;

(i) When the facts set forth in the petition as well as in the petitioners main and reply briefs
are not disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; or

(k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, would justify a different conclusion.64

Upon meticulous perusal of the records, however, this Court finds that none of these exceptions is
obtaining in this case. No such justifiable or compelling reasons exist for this Court to depart from
the general rule. This Court will not disturb the factual findings of the trial court as affirmed by the
Court of Appeals and adequately supported by the evidence on record.

Also, this Court will not review the factual findings of the trial court simply because the judge who
heard and tried the case was not the same judge who penned the decision. This fact alone does not
diminish the veracity and correctness of the factual findings of the trial court.65 Indeed, "the efficacy of
a decision is not necessarily impaired by the fact that its writer only took over from a colleague who
had earlier presided at the trial, unless there is showing of grave abuse of discretion in the factual
findings reached by him."66 In this case, there was none.

It bears stressing that in this jurisdiction there is a disputable presumption that the trial courts
decision is rendered by the judge in the regular performance of his official duties. While the said
presumption is only disputable, it is satisfactory unless contradicted or overcame by other evidence.
Encompassed in this presumption of regularity is the presumption that the trial court judge, in
resolving the case and drafting the decision, reviewed, evaluated, and weighed all the evidence on
record. That the said trial court judge is not the same judge who heard the case and received the
evidence is of little consequence when the records and transcripts of stenographic notes (TSNs) are
complete and available for consideration by the former,67 just like in the present case.

Irrefragably, the fact that the judge who penned the trial courts decision was not the same judge
who heard the case and received the evidence therein does not render the findings in the said
decision erroneous and unreliable. While the conduct and demeanor of witnesses may sway a trial
court judge in deciding a case, it is not, and should not be, his only consideration. Even more vital for
the trial court judges decision are the contents and substance of the witnesses testimonies, as
borne out by the TSNs, as well as the object and documentary evidence submitted and made part of
the records of the case.68

This Court examined the records, including the TSNs, and found no reason to disturb the factual
findings of both lower courts. This Court, thus, upholds their conclusiveness.

In resolving the second and third issues, a determination of the cause of action on which petitioners
Complaint for Damages was anchored upon is called for.

Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their negligence but
not on any breach of contract. Surprisingly, when the case was elevated on appeal to the Court of
Appeals, petitioner had a change of heart and later claimed that an implied contract existed between
her and respondents PHI and DTPCI and that the latter were liable for breach of their obligation to
keep her safe and out of harm. This allegation was never an issue before the trial court. It was not
the cause of action relied upon by the petitioner not until the case was before the Court of Appeals.
Presently, petitioner claims that her cause of action can be based both on quasi-delict and breach of
contract.

A perusal of petitioners Complaint evidently shows that her cause of action was based solely on
quasi-delict. Telling are the following allegations in petitioners Complaint:

6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00 oclock, after
herein petitioner and her friend from New York, Delia, the latter being then a Hotel guest,
were taking their shower after having a dip in the hotels swimming pool, without any notice
or warning, the Hotels staff put off all the lights within the pool area including the lights on
the hallway and also locked the main entrance door of the pool area, x x x;

7. THAT, Hotel guest Delia started to panic while petitioner pacified her by telling her not to
worry as they would both find their way out. Petitioner knowing that within the area there is a
house phone, started to look around while Delia was following her, eventually petitioner saw
a phone behind the counter x x x, that while slowly moving on towards the phone on a
stooping manner due to the darkness CAUSED BY UNTIMELY AND NEGLIGENTLY
PUTTING OFF WITH THE LIGHTS BY THE HEREIN RESPONDENTS PHI AND DTPCIS
EMPLOYEE while passing through the open counter door with its Folding Counter Top also
opened, x x x, a hard and heavy object fell onto the head of the petitioner that knocked her
down almost unconscious which hard and heavy object turned out to be the Folding Counter
Top;

8. THAT, Delia immediately got hold of the house phone and notified the Hotel Telephone
Operator about the incident, immediately the hotel staffs (sic) arrived but they were stranded
behind the main door of the pool entrance and it too (sic) them more than twenty (20)
minutes to locate the hotel maintenance employee who holds the key of the said main
entrance door;
 9. THAT, when the door was opened, two Hotel Chamber Maids assisted the petitioner to get
out of the counter door. Petitioner being a Physician tried to control her feelings although
groggy and requested for a HURIDOID, a medicine for HEMATOMA, as a huge lump
developed on her head while the two Chamber Maids assisted petitioner by holding the bag
of ice on her head and applying the medicine on the huge lump;

10. THAT, petitioner after having recovered slightly from her nightmare, though still feeling
weak, asked to be assisted to the Hotel Coffee Shop to take a rest but requested for the
hotels Physician. Despite her insistent requests, the Dusit Hotel refused to lift a finger to
assists petitioner who was then in distress until a lady approached and introduced herself as
the Hotels house Doctor. Instead however of assisting petitioner by asking her what kind of
assistance the Hotel could render, in a DISCOURTEOUS MANNER presented instead a
paper and demanding petitioner to affix her signature telling her that the Hotel Management
would only assists and answer for all expenses incurred if petitioner signs the paper
presented, but she refused and petitioner instead wrote a marginal note on the said paper
stating her reason therefore, said paper later on turned out to be a WAIVER OF RIGHT or
QUIT CLAIM;

xxxx

14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCIs gross
negligence despite medical assistance, petitioner started to feel losing her memory that
greatly affected and disrupted the practice of her chosen profession x x x.

xxxx

19. THAT, due to respondents PHI and DTPCIs gross negligence as being narrated which
caused petitioner to suffer sleepless nights, depression, mental anguish, serious anxiety,
wounded feelings, and embarrassment with her Diplomate friends in the profession and
industry, her social standing in the community was greatly affected and hence, respondents
PHI and DTPCI must be imposed the hereunder damages, prayed for x x x and Artile (sic)
2176 and 2199 of the New Civil Code of the Philippines x x x.

xxxx

22. THAT, as to Moral, Exemplary and Actual Damages, as well as petitioners Loss of
Income, the amounts are stated in its prayer hereunder.69

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

It is evident from petitioners Complaint and from her open court testimony that the reliance was on
the alleged tortious acts committed against her by respondents PHI and DTPCI, through their
management and staff. It is now too late in the day to raise the said argument for the first time before
this Court.71
Petitioners belated reliance on breach of contract as her cause of action cannot be sanctioned by
this Court. Well-settled is the rule that a party is not allowed to change the theory of the case or the
cause of action on appeal. Matters, theories or arguments not submitted before the trial court cannot
be considered for the first time on appeal or certiorari.72 When a party adopts a certain theory in the
court below, he will not be permitted to change his theory on appeal for to permit him to do so would
not only be unfair to the other party but it would also be offensive to the basic rules of fair play,
justice and due process.73 Hence, a party is bound by the theory he adopts and by the cause of
action he stands on and cannot be permitted after having lost thereon to repudiate his theory and
cause of action and adopt another and seek to re-litigate the matter anew either in the same forum
or on appeal.74

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

Viewed from the foregoing, petitioners change of theory or cause of action from quasi-delict to
breach of contract only on appeal would necessarily cause injustice to respondents PHI and DTPCI.
First, the latter will have no more opportunity to present evidence to contradict petitioners new
argument. Second, the burden of proof will be shifted from petitioner to respondents PHI and DTPCI.
Petitioners change of theory from quasi-delict to breach ofcontract must be repudiated.

As petitioners cause of action is based on quasi-delict, it is incumbent upon her to prove the
presence of the following requisites before respondents PHI and DTPCI can be held liable, to wit: (a)
damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff.78 Further, since petitioners
case is for quasi-delict , the negligence or fault should be clearly established as it is the basis of her
action.79 The burden of proof is upon petitioner. Section 1, Rule 131 of the Rules of Court provides
that "burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required by law." It is then up for the
plaintiff to establish his cause of action or the defendant to establish his defense. Therefore, if the
plaintiff alleged in his complaint that he was damaged because of the negligent acts of the
defendant, he has the burden of proving such negligence. It is even presumed that a person takes
ordinary care of his concerns. The quantum of proof required is preponderance of evidence.80

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

More telling is the ratiocination of the Court of Appeals, to wit:

Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its
employees were negligent? We do not think so. Several factors militate against petitioners
contention.

One. Petitioner recognized the fact that the pool areas closing time is 7:00 p.m.. She, herself,
admitted during her testimony that she was well aware of the sign when she and Delia entered the
pool area. Hence, upon knowing, at the outset, of the pools closing time, she took the risk of
overstaying when she decided to take shower and leave the area beyond the closing hour. In fact, it
was only upon the advise of the pool attendants that she thereafter took her shower.

Two. She admitted, through her certification, that she lifted the wooden bar countertop, which then
fell on to her head. The admission in her certificate proves the circumstances surrounding the
occurrence that transpired on the night of 11 June 1995. This is contrary to her assertion in the
complaint and testimony that, while she was passing through the counter door, she was suddenly
knocked out by a hard and heavy object. In view of the fact that she admitted having lifted the
countertop, it was her own doing, therefore, that made the counter top fell on to her head.

Three. We cannot likewise subscribe to petitioners assertion that the pool area was totally dark in
that she herself admitted that she saw a telephone at the counter after searching for one. It must be
noted that petitioner and Delia had walked around the pool area with ease since they were able to
proceed to the glass entrance door from the shower room, and back to the counter area where the
telephone was located without encountering any untoward incident. Otherwise, she could have
easily stumbled over, or slid, or bumped into something while searching for the telephone. This
negates her assertion that the pool area was completely dark, thereby, totally impairing her vision.

xxxx

The aforementioned circumstances lead us to no other conclusion than that the proximate and
immediate cause of the injury of petitioner was due to her own negligence.83 (Emphasis supplied).

Even petitioners assertion of negligence on the part of respondents PHI and DTPCI in not rendering
medical assistance to her is preposterous. Her own Complaint affirmed that respondents PHI and
DTPCI afforded medical assistance to her after she met the unfortunate accident inside the hotels
swimming pool facility. Below is the portion of petitioners Complaint that would contradict her very
own statement, thus:
14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCIs gross
negligence despite medical assistance, petitioner started to feel losing her memory that greatly
affected and disrupted the practice of her chosen profession. x x x.84 (Emphasis supplied).

Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended medical
assistance to petitioner but it was petitioner who refused the same. The trial court stated, thus:

Further, herein petitioners asseverations that the Hotel Management did not extend medical
assistance to her in the aftermath of the alleged accident is not true. Again, this statement was not
supported by any evidence other that the sole and self-serving testimony of petitioner. Thus, this
Court cannot take petitioners statement as a gospel truth. It bears stressing that the Hotel
Management immediately responded after it received notice of the incident. As a matter of fact, Ms.
Pearlie, the Hotel nurse, with two chambermaids holding an ice bag placed on petitioners head
came to the petitioner to extend emergency assistance when she was notified of the incident, but
petitioner merely asked for Hirudoid, saying she was fine, and that she was a doctor and know how
to take care of herself. Also, the Hotel, through its in-house physician, Dr. Dalumpines offered its
medical services to petitioner when they met at the Hotels coffee shop, but again petitioner declined
the offer. Moreover, the Hotel as a show of concern for the petitioners welfare, shouldered the
expenses for the MRI services performed on petitioner at the Makati Medical Center. Emphatically,
petitioner herself cannot fault the Hotel for the injury she allegedly suffered because she herself did
not heed the warning at the pool to the effect that it was only open from 7:00 to 7:00 P.M. Thus,
when the petitioners own negligence was the immediate and proximate cause of his injury,
shecannot recover damages x x x.85

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

With regard to petitioners contention that the principles of res ipsa loquitur and respondeat superior
are applicable in this case, this Court holds otherwise.

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

Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such character as to
warrant an inference that it would not have happened except for the defendants negligence; (2) the
accident must have been caused by an agency or instrumentality within the exclusive management
or control of the person charged with the negligence complained of; and (3) the accident must not
have been due to any voluntary action or contribution on the part of the person injured.89
In the case at bench, even granting that respondents PHI and DTPCIs staff negligently turned off
the lights and locked the door, the folding wooden counter top would still not fall on petitioners head
had she not lifted the same. Although the folding wooden counter top is within the exclusive
management or control of respondents PHI and DTPCI, the falling of the same and hitting the head
of petitioner was not due to the negligence of the former. As found by both lower courts, the folding
wooden counter top did not fall on petitioners head without any human intervention. Records
showed that petitioner lifted the said folding wooden counter top that eventually fell and hit her head.
The same was evidenced by the, (1) 11 June 1995 handwritten certification of petitioner herself; (2)
her Letter dated 30 August 1995 addressed to Mr. Yoshikazu Masuda (Mr. Masuda), General
Manager of Dusit Hotel; and, (3) Certification dated 7 September 1995 issued to her by Dr.
Dalumpines upon her request, which contents she never questioned.

Here, we, respectively, quote the 11 June 1995 handwritten certification of petitioner; her letter to Mr.
Masuda dated 30 August 1995; and Dr. Dalumpines Certification dated 7 September 1995, to wit:

Petitioners 11 June 1995 Handwritten Certification:

I was requested by Dr. Dalumpines to write that I was assured of assistance should it be necessary
with regard an accident at the pool. x x x The phone was in an enclosed area on a chair I lifted the
wooden bar counter top which then fell on my head producing a large hematoma x x x.90

Petitioners Letter addressed to Mr. Masuda dated 30 August 1995:

Dear Mr. Masuda,

xxxx

x x x We searched and saw a phone on a chair behind a towel counter. However, in order to get
behind the counter I had to lift a hinged massive wooden section of the counter which subsequently
fell and knocked me on my head x x x.91

Dr. Dalumpines Certification dated 7 September 1995:

CERTIFICATION

This is to certify that as per Clinic records, duty nurse Pearlie was called to attend to
an accident at the poolside at 7:45PM on 11 June 1995.

Same records show that there, she saw petitioner who claimed the folding countertop fell on her
head when she lifted it to enter the lifeguards counter to use the phone. She asked for Hirudoid.

The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After narrating the poolside
incident and declining Dr. Dalumpines offer of assistance, she reiterated that the Hirudoid cream
was enough and that petitioner]being a doctor herself, knew her condition and she was all right.

This certification is given upon the request of petitioner for whatever purpose it may serve, 7
September 1995 at Makati City.92 (Emphasis supplied).

This Court is not unaware that in petitioners Complaint and in her open court testimony, her
assertion was, "while she was passing through the counter door, she was suddenly knocked out by a
hard and heavy object, which turned out to be the folding wooden counter top." However, in her
open court testimony, particularly during cross-examination, petitioner confirmed that she made such
statement that "she lifted the hinge massive wooden section of the counter near the swimming
pool."93 In view thereof, this Court cannot acquiesce petitioners theory that her case is one of res
ipsa loquitur as it was sufficiently established how petitioner obtained that "bukol" or "hematoma."

The doctrine of respondeat superior finds no application in the absence of any showing that the
employees of respondents PHI and DTPCI were negligent. Since in this case, the trial court and the
appellate court found no negligence on the part of the employees of respondents PHI and DTPCI,
thus, the latter cannot also be held liable for negligence and be made to pay the millions of pesos
damages prayed for by petitioner.

The issue on whether petitioners debilitating and permanent injuries were the result of the accident
she suffered at the hotels swimming pool area on 11 June 1995 is another question of fact, which is
beyond the function of this Court to resolve. More so, this issue has already been properly passed
upon by the trial court and the Court of Appeals. To repeat, this Court is bound by the factual
findings of the lower courts and there is no cogent reason to depart from the said rule.

The following observations of the trial court are controlling on this matter:

Firstly, petitioner had a past medical history which might have been the cause of her recurring brain
injury.

Secondly, the findings of Dr. Perez did not prove a causal relation between the 11 June 1995
accident and the brain damage suffered by petitioner. Dr. Perez himself testified that the symptoms
being experienced by petitioner might have been due to factors other than the head trauma she
allegedly suffered. Emphasis must be given to the fact that petitioner had been suffering from
different kinds of brain problems since she was 18 years old, which may have been the cause of the
recurring symptoms of head injury she is experiencing at present.

Thirdly, Dr. Sanchezs testimony cannot be relied upon since she testified on the findings and
conclusions of persons who were never presented in court. Ergo, her testimony thereon was
hearsay. A witness can testify only with regard to facts of which they have personal knowledge.
Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of the
witness, but on the knowledge of some other person not on the witness stand. Consequently,
hearsay evidence -- whether objected to or not -- has no probative value.94

Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors whom petitioner

sought for examination or treatment were neither identified nor testified to by those who issued them.
Being deemed as hearsay, they cannot be given probative value. 1wphi1

The aforesaid medical reports/evaluations/certifications of different doctors in favor of petitioner

cannot be given probative value and their contents cannot be deemed to constitute proof of the facts
stated therein. It must be stressed that a document or writing which is admitted not as independent
evidence but merely as part of the testimony of a witness does not constitute proof of the facts
related therein.95 In the same vein, the medical certificate which was identified and interpreted in court
by another doctor was not accorded probative value because the doctor who prepared it was not
presented for its identification. Similarly, in this case, since the doctors who examined petitioner
were not presented to testify on their findings, the medical certificates issued on their behalf and
identified by another doctor cannot be admitted as evidence. Since a medical certificate involves an
opinion of one who must first be established as an expert witness, it cannot be given weight or credit
unless the doctor who issued it is presented in court to show his qualifications.96 Thus, an unverified
and unidentified private document cannot be accorded probative value. It is precluded because the
party against whom it is presented is deprived of the right and opportunity to cross-examine the
person to whom the statements or writings are attributed. Its executor or author should be presented
as a witness to provide the other party to the litigation the opportunity to question its contents. Being
mere hearsay evidence, failure to present the author of the letter renders its contents suspect and of
no probative value.97

All told, in the absence of negligence on the part of respondents PHI and DTPCI, as well as their
management and staff, they cannot be made Iiable to pay for the millions of damages prayed for by
the petitioner. Since respondents PHI and DTPCI arc not liable, it necessarily follows that
respondent First Lepanto cannot also be made liable under the contract or Insurance.

WHEREFORE, premises considered, the Decision and Resolution or the Court of Appeals in CA-
G.R. CV No. 87065 dated 9 August 2007 and 5 November 2007, respectively, are hereby
AFFIRMED. Costs against petitioner.

SO ORDERED.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court
assailing the August 24, 2007 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV
No. 82822, entitled R&B Insurance Corporation v. Glodel Brokerage Corporation
and Loadmasters Customs Services, Inc., which held petitioner Loadmasters
Customs Services, Inc. (Loadmasters) liable to respondent Glodel Brokerage
Corporation(Glodel) in the amount of P1,896,789.62 representing the insurance
indemnity which R&B Insurance Corporation (R&B Insurance)paid to the insured-
consignee, Columbia Wire and Cable Corporation (Columbia).

THE FACTS:
On August 28, 2001, R&B Insurance issued Marine Policy No. MN-00105/2001 in
favor ofColumbia to insure the shipment of 132 bundles of electric copper cathodes
against All Risks. On August 28, 2001, the cargoes were shipped on board the vessel
Richard Rey from Isabela, Leyte, to Pier 10, NorthHarbor, Manila. They arrived on
the same date.

Columbia engaged the services of Glodel for the release and withdrawal of
the cargoes from the pier and the subsequent delivery to its
warehouses/plants. Glodel, in turn, engaged the services of Loadmasters for the
use of its delivery trucks to transport the cargoes to Columbias warehouses/plants
in Bulacan and Valenzuela City.

The goods were loaded on board twelve (12) trucks owned by Loadmasters,
driven by its employed drivers and accompanied by its employed truck helpers. Six
(6) truckloads of copper cathodes were to be delivered to Balagtas, Bulacan, while
the other six (6) truckloads were destined for Lawang Bato,Valenzuela City. The
cargoes in six truckloads for Lawang Bato were duly delivered inColumbias
warehouses there. Of the six (6) trucks en route to Balagtas, Bulacan, however, only
five (5) reached the destination. One (1) truck, loaded with 11 bundles or 232
pieces of copper cathodes, failed to deliver its cargo.

Later on, the said truck, an Isuzu with Plate No. NSD-117, was recovered but
without the copper cathodes. Because of this incident,Columbia filed with R&B
Insurance a claim for insurance indemnity in the amount ofP1,903,335.39. After the
requisite investigation and adjustment, R&B Insurance paid Columbia the amount
of P1,896,789.62 as insurance indemnity.

R&B Insurance, thereafter, filed a complaint for damages against both

Loadmasters and Glodel before the Regional Trial Court, Branch 14, Manila (RTC),
docketed as Civil Case No. 02-103040. It sought reimbursement of the amount it
had paid to Columbia for the loss of the subject cargo. It claimed that it had been
subrogated to the right of the consignee to recover from the party/parties who may
be held legally liable for the loss.[2]

On November 19, 2003, the RTC rendered a decision[3] holding Glodel liable for
damages for the loss of the subject cargo and dismissing Loadmasters counterclaim
for damages and attorneys fees against R&B Insurance. The dispositive portion of
the decision reads:

WHEREFORE, all premises considered, the plaintiff having

established by preponderance of evidence its claims against
defendant Glodel Brokerage Corporation, judgment is hereby
rendered ordering the latter:

1. To pay plaintiff R&B Insurance Corporation the sum

ofP1,896,789.62 as actual and compensatory
damages, with interest from the date of complaint
until fully paid;

2. To pay plaintiff R&B Insurance Corporation the

amount equivalent to 10% of the principal amount
recovered as and for attorneys fees plus P1,500.00
per appearance in Court;

3. To pay plaintiff R&B Insurance Corporation the sum

of P22,427.18 as litigation expenses.

WHEREAS, the defendant Loadmasters Customs Services,

Inc.s counterclaim for damages and attorneys fees against plaintiff
are hereby dismissed.
 With costs against defendant Glodel Brokerage Corporation.
SO ORDERED.[4]
Both R&B Insurance and Glodel appealed the RTC decision to the CA.

On August 24, 2007, the CA rendered the assailed decision which reads in
part:

Considering that appellee is an agent of appellant Glodel,

whatever liability the latter owes to appellant R&B Insurance
Corporation as insurance indemnity must likewise be the amount
it shall be paid by appellee Loadmasters.

WHEREFORE, the foregoing considered, the appeal is

PARTLY GRANTED in that the appellee Loadmasters is likewise
held liable to appellant Glodel in the amount ofP1,896,789.62
representing the insurance indemnity appellant Glodel has been
held liable to appellant R&B Insurance Corporation.

Appellant Glodels appeal to absolve it from any liability is

herein DISMISSED.

SO ORDERED.[5]
 Hence, Loadmasters filed the present petition for review on certiorari before
this Court presenting the following

ISSUES

1. Can Petitioner Loadmasters be held liable to Respondent Glodel in

spite of the fact that the latter respondent Glodel did not file a cross-
claim against it (Loadmasters)?

2. Under the set of facts established and undisputed in the case, can
petitioner Loadmasters be legally considered as an Agent of
respondent Glodel?[6]

To totally exculpate itself from responsibility for the lost goods, Loadmasters
argues that it cannot be considered an agent of Glodel because it never
represented the latter in its dealings with the consignee. At any rate, it further
contends that Glodel has no recourse against it for its (Glodels) failure to file a
cross-claim pursuant to Section 2, Rule 9 of the 1997 Rules of Civil Procedure.

Glodel, in its Comment,[7] counters that Loadmasters is liable to it under its cross-
claim because the latter was grossly negligent in the transportation of the subject
cargo.With respect to Loadmasters claim that it is already estopped from filing a
cross-claim, Glodel insists that it can still do so even for the first time on appeal
because there is no rule that provides otherwise. Finally, Glodel argues that its
relationship with Loadmasters is that of Charter wherein the transporter
(Loadmasters) is only hired for the specific job of delivering the merchandise. Thus,
the diligence required in this case is merely ordinary diligence or that of a good
father of the family, not the extraordinary diligence required of common carriers.

R&B Insurance, for its part, claims that Glodel is deemed to have interposed a cross-
claim against Loadmasters because it was not prevented from presenting evidence
to prove its position even without amending its Answer. As to the relationship
between Loadmasters and Glodel, it contends that a contract of agency existed
between the two corporations.[8]

Subrogation is the substitution of one person in the place of another with

reference to a lawful claim or right, so that he who is substituted succeeds to the
rights of the other in relation to a debt or claim, including its remedies or
securities.[9] Doubtless, R&B Insurance is subrogated to the rights of the insured to
the extent of the amount it paid the consignee under the marine insurance, as
provided under Article 2207 of the Civil Code, which reads:

ART. 2207. If the plaintiffs property has been insured, and he

has received indemnity from the insurance company for the injury
or loss arising out of the wrong or breach of contract complained of,
the insurance company shall be subrogated to the rights of the
insured against the wrong-doer or the person who has violated the
contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be entitled to
recover the deficiency from the person causing the loss or injury.

As subrogee of the rights and interest of the consignee, R&B Insurance has
the right to seek reimbursement from either Loadmasters or Glodel or both for
breach of contract and/or tort.
The issue now is who, between Glodel and Loadmasters, is liable to pay R&B
Insurance for the amount of the indemnity it paid Columbia.

At the outset, it is well to resolve the issue of whether Loadmasters and Glodel are
common carriers to determine their liability for the loss of the subject cargo. Under
Article 1732 of the Civil Code, common carriers are persons, corporations, firms, or
associations engaged in the business of carrying or transporting passenger or goods,
or both by land, water or air for compensation, offering their services to the public.
Based on the aforecited definition, Loadmasters is a common carrier because
it is engaged in the business of transporting goods by land, through its trucking
service. It is a common carrier as distinguished from aprivate carrier wherein
the carriage is generally undertaken by special agreement and it does not hold itself
out to carry goods for the general public.[10] The distinction is significant in the
sense that the rights and obligations of the parties to a contract of private carriage
are governed principally by their stipulations, not by the law on common carriers.[11]

In the present case, there is no indication that the undertaking in the

contract between Loadmasters and Glodel was private in character. There is no
showing that Loadmasters solely and exclusively rendered services to Glodel.

In fact, Loadmasters admitted that it is a common carrier.[12]

In the same vein, Glodel is also considered a common carrier within the
context of Article 1732. In its Memorandum,[13] it states that it is a corporation duly
organized and existing under the laws of the Republic of thePhilippines and is
engaged in the business of customs brokering. It cannot be considered otherwise
because as held by this Court inSchmitz Transport & Brokerage Corporation v.
Transport Venture, Inc.,[14] a customs broker is also regarded as a common carrier,
the transportation of goods being an integral part of its business.
 Loadmasters and Glodel, being both common carriers, are mandated from

the nature of their business and for reasons of public policy, to observe the

extraordinary diligence in the vigilance over the goods transported by them

according to all the circumstances of such case, as required by Article 1733 of the

Civil Code. When the Court speaks of extraordinary diligence, it is that extreme

measure of care and caution which persons of unusual prudence and

circumspection observe for securing and preserving their own property or

rights.[15]This exacting standard imposed on common carriers in a contract of

carriage of goods is intended to tilt the scales in favor of the shipper who is at the

mercy of the common carrier once the goods have been lodged for

shipment.[16] Thus, in case of loss of the goods, the common carrier is presumed to

have been at fault or to have acted negligently.[17] This presumption of fault or

negligence, however, may be rebutted by proof that the common carrier has

observed extraordinary diligence over the goods.

With respect to the time frame of this extraordinary responsibility, the Civil
Code provides that the exercise of extraordinary diligence lasts from the time the
goods are unconditionally placed in the possession of, and received by, the carrier
for transportation until the same are delivered, actually or constructively, by the
carrier to the consignee, or to the person who has a right to receive them.[18]
 Premises considered, the Court is of the view that both Loadmasters and
Glodel are jointly and severally liable to R & B Insurance for the loss of the subject
cargo. Under Article 2194 of the New Civil Code, the responsibility of two or more
persons who are liable for a quasi-delict is solidary.

Loadmasters claim that it was never privy to the contract entered into by
Glodel with the consignee Columbia or R&B Insurance as subrogee, is not a valid
defense. It may not have a direct contractual relation withColumbia, but it is liable
for tort under the provisions of Article 2176 of the Civil Code on quasi-delicts which
expressly provide:

ART. 2176. Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.

Pertinent is the ruling enunciated in the case of Mindanao Terminal and

Brokerage Service, Inc. v. Phoenix Assurance Company of New York,/McGee & Co.,
Inc.[19] where this Court held that a tort may arise despite the absence of a
contractual relationship, to wit:

We agree with the Court of Appeals that the complaint filed

by Phoenix and McGee against Mindanao Terminal, from which
the present case has arisen, states a cause of action. The present
action is based onquasi-delict, arising from the negligent and
careless loading and stowing of the cargoes belonging to Del Monte
Produce. Even assuming that both Phoenix and McGee have only
been subrogated in the rights of Del Monte Produce, who is not a
party to the contract of service between Mindanao Terminal and
 Del Monte, still the insurance carriers may have a cause of action in
light of the Courts consistent ruling that the act that breaks the
contractmay be also a tort. In fine, a liability for tort may arise even
under a contract, where tort is that which breaches the contract. In
the present case, Phoenix and McGee are not suing for damages for
injuries arising from the breach of the contract of service but from the
alleged negligent manner by which Mindanao Terminal handled the
cargoes belonging to Del Monte Produce. Despite the absence of
contractual relationship between Del Monte Produce and
Mindanao Terminal, the allegation of negligence on the part of the
defendant should be sufficient to establish a cause of action arising
from quasi-delict. [Emphases supplied]

In connection therewith, Article 2180 provides:

ART. 2180. The obligation imposed by Article 2176 is

demandable not only for ones own acts or omissions, but also for
those of persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their

employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.

It is not disputed that the subject cargo was lost while in the custody of
Loadmasters whose employees (truck driver and helper) were instrumental in the
hijacking or robbery of the shipment. As employer, Loadmasters should be made
answerable for the damages caused by its employees who acted within the scope
of their assigned task of delivering the goods safely to the warehouse.

Whenever an employees negligence causes damage or injury to another,

there instantly arises a presumption juris tantum that the employer failed to
exercise diligentissimi patris families in the selection (culpa in eligiendo) or
supervision (culpa in vigilando)of its employees.[20] To avoid liability for a quasi-
delict committed by its employee, an employer must overcome the presumption
by presenting convincing proof that he exercised the care and diligence of a good
father of a family in the selection and supervision of his employee.[21] In this regard,
Loadmasters failed.

Glodel is also liable because of its failure to exercise extraordinary

diligence. It failed to ensure that Loadmasters would fully comply with the
undertaking to safely transport the subject cargo to the designated destination. It
should have been more prudent in entrusting the goods to Loadmasters by taking
precautionary measures, such as providing escorts to accompany the trucks in
delivering the cargoes. Glodel should, therefore, be held liable with
Loadmasters. Its defense of force majeure is unavailing.

At this juncture, the Court clarifies that there exists no principal-agent

relationship between Glodel and Loadmasters, as erroneously found by the
CA. Article 1868 of the Civil Code provides: By the contract of agency a person binds
himself to render some service or to do something in representation or on behalf
of another, with the consent or authority of the latter. The elements of a contract
of agency are: (1) consent, express or implied, of the parties to establish the
relationship; (2) the object is the execution of a juridical act in relation to a third
person; (3) the agent acts as a representative and not for himself; (4) the agent acts
within the scope of his authority.[22]

Accordingly, there can be no contract of agency between the

parties. Loadmasters never represented Glodel. Neither was it ever authorized to
make such representation. It is a settled rule that the basis for agency is
representation, that is, the agent acts for and on behalf of the principal on matters
within the scope of his authority and said acts have the same legal effect as if they
were personally executed by the principal. On the part of the principal, there must
be an actual intention to appoint or an intention naturally inferable from his words
or actions, while on the part of the agent, there must be an intention to accept the
appointment and act on it.[23] Such mutual intent is not obtaining in this case.

What then is the extent of the respective liabilities of Loadmasters and

Glodel? Each wrongdoer is liable for the total damage suffered by R&B Insurance.
Where there are several causes for the resulting damages, a party is not relieved
from liability, even partially. It is sufficient that the negligence of a party is an
efficient cause without which the damage would not have resulted. It is no defense
to one of the concurrent tortfeasors that the damage would not have resulted from
his negligence alone, without the negligence or wrongful acts of the other
concurrent tortfeasor. As stated in the case ofFar Eastern Shipping v. Court of
Appeals,[24]

X x x. Where several causes producing an injury are

concurrent and each is an efficient cause without which the injury
would not have happened, the injury may be attributed to all or any
of the causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the case,
it may appear that one of them was more culpable, and that the duty
owed by them to the injured person was not the same. No actor's
negligence ceases to be a proximate cause merely because it does
not exceed the negligence of other actors. Each wrongdoer is
responsible for the entire result and is liable as though his acts were
the sole cause of the injury.
There is no contribution between joint tortfeasors whose
liability is solidary since both of them are liable for the total damage.
Where the concurrent or successive negligent acts or omissions of
two or more persons, although acting independently, are in
combination the direct and proximate cause of a single injury to a
third person, it is impossible to determine in what proportion each
contributed to the injury and either of them is responsible for the
whole injury. Where their concurring negligence resulted in injury
 or damage to a third party, they become joint tortfeasors and are
solidarily liable for the resulting damage under Article 2194 of the
Civil Code. [Emphasis supplied]

The Court now resolves the issue of whether Glodel can collect from
Loadmasters, it having failed to file a cross-claim against the latter.

Undoubtedly, Glodel has a definite cause of action against Loadmasters for

breach of contract of service as the latter is primarily liable for the loss of the
subject cargo. In this case, however, it cannot succeed in seeking judicial sanction
against Loadmasters because the records disclose that it did not properly interpose
a cross-claim against the latter. Glodel did not even pray that Loadmasters be liable
for any and all claims that it may be adjudged liable in favor of R&B
Insurance. Under the Rules, a compulsory counterclaim, or a cross-claim, not set up
shall be barred.[25] Thus, a cross-claim cannot be set up for the first time on appeal.

For the consequence, Glodel has no one to blame but itself. The Court cannot
come to its aid on equitable grounds. Equity, which has been aptly described as a
justice outside legality, is applied only in the absence of, and never against,
statutory law or judicial rules of procedure.[26] The Court cannot be a lawyer and
take the cudgels for a party who has been at fault or negligent.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 24,

2007 Decision of the Court of Appeals is MODIFIED to read as follows:

WHEREFORE, judgment is rendered declaring petitioner

Loadmasters Customs Services, Inc. and respondent Glodel Brokerage
Corporation jointly and severally liable to respondent R&B Insurance
Corporation for the insurance indemnity it paid to consignee Columbia
Wire & Cable Corporation and ordering both parties to pay, jointly and
severally, R&B Insurance Corporation a] the amount of P1,896,789.62
representing the insurance indemnity; b] the amount equivalent to
ten (10%) percent thereof for attorneys fees; and c] the amount
ofP22,427.18 for litigation expenses.

The cross-claim belatedly prayed for by respondent Glodel

Brokerage Corporation against petitioner Loadmasters Customs
Services, Inc. is DENIED.

SO ORDERED.